AG2004/3021, Transcript of Proceedings [2004] AIRCTrans 1811 (17 May 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2624

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/3021

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by the Australian Liquor, Hospitality and Miscellaneous
Workers Union and Dulux Australia for certification
of the Dulux Rocklea Certified Agreement 2004

BRISBANE

10.01 AM, WEDNESDAY, 5 MAY 2004

PN1

MS J. VIRINE: I appear for the Liquor Hospitality and Miscellaneous Union and appearing with me are PETER GRAHAM and GRIF HUGHES, delegates from the site.

PN2

THE COMMISSIONER: Thanks, Ms Virine.

PN3

MR M. JAGER: I appear for Dulux and with me, WARREN WAPELS, decorative manufacturing manager, Dulux.

PN4

THE COMMISSIONER: Thanks, Mr Jager.

PN5

MS VIRINE: Thank you, Commissioner. Commissioner, this is an application pursuant to Section 170LJ of the Act for certification of the Dulux Rocklea Agreement 2004. The applicant is accompanied by statutory declarations of Irene Munro, who is the branch secretary of the LHMU and Warren Wapels from Dulux Rocklea. The statutory declarations set out the requirements of Section 170LT of the Act. We rely in the first instance upon the information set out in these statutory declarations.

PN6

In relation to the agreement itself, there are a number of matters that I thought I'd draw your attention to, Commissioner. Under this new agreement there's a four per cent wage increase. There's additional discretionary bereavement leave, additional discretionary parental leave, new arrangements for the taking of annual leave, and new disciplinary procedures which allow opportunities for parties to resole issues without disputation. There's also an extension of certain allowances under the agreement. Our members have been consulted throughout the process of making this agreement and have voted to approve the agreement.

PN7

In relation to that process, we particularly wish to praise the activity and commitment of the delegates and members and note that their activism and hard work has resulted in substantial increases in the pay and conditions at this work place. We also commend management for their preparedness to involve union delegates and to give them a degree of control in the negotiating process. The agreement has been signed on behalf of the union and it's our submission that the application meets all statutory requirements necessary and sufficient for certification and therefore we commend this agreement to you, if it please the Commission.

PN8

THE COMMISSIONER: Thanks, Ms Virine. Ms Virine, I will ask you one question: the award that's referred to in the agreement as the relevant award - there are two in fact in the agreement; one is the Metals 1998 Award, but there is the Australian Paint Industry Award 1992. That's in the agreement. Now, the statutory declarations: both of them refer to the relevant award being solely the Australian Paint Industry Award 2000. I was just wondering whether you could explain to me about that constellation of references.

PN9

MS VIRINE: I think what may have happened, Commissioner, is when the statutory declaration was drawn up that one of those awards was left off the statutory declaration, or in fact the wrong title put on the statutory declaration and if you'd like I can give an undertaking to provide - - -

PN10

THE COMMISSIONER: Yes. I'm just wondering, the 2000 award sounds like it's the simplified award and the reference in the agreement is probably the incorrect one.

PN11

MS VIRINE: Yes.

PN12

THE COMMISSIONER: But then, on the other hand, the Metals Award has been left off the stat decs.

PN13

MS VIRINE: That's right. Yes, I think you're right there, Commissioner. Would it be acceptable perhaps if - I'm not sure that - - -

PN14

THE COMMISSIONER: Well, the parties would need to express their understanding is that - you can confer if you want to, or I'll hear from the other side shortly, and that is as to which award they intended to be the relevant award for the purposes of this agreement.

PN15

MS VIRINE: Sure.

PN16

THE COMMISSIONER: Clearly the content of the 1992 award is different than the content of the 2000 award.

PN17

MS VIRINE: Would we be able to have a moment just to - - -

PN18

THE COMMISSIONER: Yes, you might want to just see if you want to confer just to work out what's happened in terms of all these references.

PN19

MS VIRINE: Okay. Sure.

PN20

THE COMMISSIONER: You can do that privately if you like. We'll adjourn just briefly.

SHORT ADJOURNMENT [10.08am]

RESUMED [10.08am]

PN21

THE COMMISSIONER: Mr Jager.

PN22

MR JAGER: Yes. Thanks, Commissioner. Perhaps I could clarify the process. During the negotiations we discussed this very issue, the reference to the old 1992 award, in the document and the fact that the parent award for this agreement is the simplified 2000 agreement. The union at the time for reasons of wanting to refer to the old conditions in the 1992 award would not change that in the agreement document. We said we didn't think that that would be agreed to by the Commission and the union said that at the time of certification they would address this very matter with the Commission. We didn't think it was possible to import an old award that no longer exists and the real reference should be - or the true reference should be the 2000 Paint Industry Award.

PN23

THE COMMISSIONER: So where does that leave us?

PN24

MR JAGER: My view is that the correct award in the agreement should be the 2000 award. The difference between those two documents is not substantial and I suppose in order to have this agreement concluded we agreed that the LHMU could address this at the time of the certification.

PN25

THE COMMISSIONER: Well, perhaps I should - Ms Virine, do you have anything you want to add?

PN26

MS VIRINE: Commissioner, firstly I'd like to say that unfortunately I've not been involved in these negotiations at all and our organiser, Michael Dobreni, is currently in the Northern Territory, and I haven't got enough information before me to really tell you why it was the union insisted on having that particular award referred to - the 1992 award referred to in the agreement. My suggestion for today would be to leave the clause as it is but simply to amend the statutory declaration to include the Metals Award, which the employer has said they're happy to do.

PN27

Alternatively, I can attempt to contact Mr Dobreni and elicit why it is that clause is worded as it is and then get back to you on that point. But at this stage I'd suggest just leaving it as it is.

PN28

THE COMMISSIONER: The issue with the statutory declaration, even though statutory declarations are sworn documents and the appellant is under the Act and so on for - under the Statutory Declarations Act for the purposes of provision of incorrect information, quite clearly that there's been an inadvertent error and not an intentional one, not a mischief of any sort, and the requirement for a statutory declaration is a requirement of the rules of the Commission so - and the rules of the Commission provide at Rule 6 for a capacity of the Commission to waive rules in the circumstances where it considers it necessary, I wouldn't be of the view that an inadvertent error in the statutory declaration which has no mischief, obviously, would be a cause for delaying for the purpose of certification.

PN29

So I wouldn't allow that issue to be an obstacle to certification. What's in my mind, however, is an uncertainty - well, there are two issues arise: one is what is the relevant award for the purposes of the no-disadvantage test? Well, the relevant award for the purposes of the no-disadvantage test is articulated at Part VIE of the Act and it defines a relevant award as the award which is binding or regulates the employment of the employees on the day of certification.

PN30

MR JAGER: Yes.

PN31

THE COMMISSIONER: It's not something in the history. It's the one that's current. That said, what is in my mind is whether or not that's an obligation that falls upon the Commission for the purpose of certification and not one that necessarily falls upon the parties. That is, for the purpose of the Commission exercising its discretion under LT2 as to whether or not an agreement meets the no-disadvantage test the Commission has to carry out the task of comparing it with the relevant award, not necessarily award - you may have said something incorrect, but the task that falls from the no-disadvantage test is one that falls at the feet, so to speak, of the Commissioner.

PN32

But so whilst I think I can possibly see a way to certification via that route and not placing that as an obligation upon the parties, where I do have a difficulty, though, is in respect of 170LJ(3)(b) of the Act which requires that an agreement pursuant to Section 170LJ of the Act, the terms of that agreement have to be explained to employees. Now, that requires disclosure of - quite clearly the most fundamental element of disclosure by way of explanation would be of the relevant award, and I'm uncertain at this point in my mind as to how an explanation could be given to employees of the terms of the award, which is what LJ(3)(b) requires when the elemental information, that is, what's the relevant award? It's the incorrect award.

PN33

So what I'm saying is that in essence the parties are required or the employer is required to explain the terms of the award under the Act. The elemental task in providing such an explanation would be the provision of the accurate information about what the relevant award is. But here we have quite possibly the incorrect award having been nominated at the point of the explaining of the agreement to employees. And I just put that to you because it's come to me only as I did the comparison between the various documents and so on, and in effect it's only come to me very recently, and I'm not at this point prepared to make a judgment as to whether that's the correct judgment or not.

PN34

It's a superficial one at this stage and it clearly requires some further thought. The fact that the agreement purports to represent an incorrect relevant award is a matter that perhaps we all ought to just think about for a bit before we get too hasty in our judgments. The objects of the Act and the objects of the Part quite clearly encourage the Commission to facilitate the making of agreements and I'm clearly encouraged to pursue this certification in this matter, and clearly I've also read the agreement itself and I have no other concerns in relation to certification either in respect of 170LT or Section 170LU of the Act or otherwise, bar this lingering issue of the relevance of 170LJ(3)(b) as to whether or not the employer has as a consequence of the terms of the agreement explained the agreement as is required, to just disclose the fundamental information about the terms of the agreement. That is, in this regard being the accurate reference to the relevant award.

PN35

But I'm open to be persuaded on that issue because, as I said, there are objects that encourage me to certify agreements and as a consequence I think the best thing that we can do today is - rest assured that all other matters are dealt with bar this issue, and that we just go away and put our thoughts together as to how this issue might be managed or if it can be managed, and that would require probably consulting with the relevant organiser and - - -

PN36

MS VIRINE: Commissioner, if I may, this could be solved by a very quick phone call if you'd allow me to step out very quickly to ask - - -

PN37

THE COMMISSIONER: It may not be - - -

PN38

MS VIRINE: It could be. I realise - - -

PN39

THE COMMISSIONER: What sort of information could you elicit in a short time that could demonstrate the requirements of 170LJ(3)(b) of the Act were met?

PN40

MS VIRINE: I suppose what I'm suggesting is that I may be able to speak to the organiser about the need for this agreement to be certified soon and ask if there was a good reason as to why there was such an insistence that this clause be inserted as it is and whether we can look to maybe having it reworded at all.

PN41

THE COMMISSIONER: Well, I'm not too sure that that would - that might be an opportunity that may have passed us by. I think the issue that the parties need to address is given what you uncover as to what was put to employees about what was the relevant award, and quite clearly it is as referred to in Clause 1.5. What the parties need to make submissions to me on is how otherwise - given this reference, how otherwise was the requirement of Section 170LJ(3)(b) of the Act met? Do you see what I mean? What you need to - the parties will need to put some submissions to me as to - given that quite possibly the incorrect award was referred to for the purpose of the making and approval of the agreement, how in that context was Section 170LJ(3)(b) of the Act met? That's the crucial issue.

PN42

I think I'll relieve you of the burden of considering the issue of the no-disadvantage test, because, in my view, I think that's a task for the Commission to apply the correct award, so you could tell me it was another award but I'm still going to apply the correct award regardless, so that's my task. So I don't think you should worry about that. But I think where I've got a hurdle I have to get over is how were the terms of the agreement explained to the employees if the wrong award was - if they were informed of the wrong award for the purposes of the relevant award. That's the only hurdle I think that exists here.

PN43

But I don't want to no certify the agreement. Quite clearly Section 170LT of the Act requires that I consider the jurisdictional foundation to the agreement. That is, the agreement has to be made in accordance with the earlier requirements in Division 2 which include 170LJ(3)(b). So everything else is met apart from that one issue about how the Commission should deal with the wrong information about the relevant award being given to employees at the time of the approval process in the context of the ballot, that's all.

PN44

So that's an outstanding issue. If the matter - I'm in your hands as to the time scale you want to get back to me on; if it's late today or tomorrow or the next day. It's up to yourselves. You'll be driven by your own urgency to have your agreement certified as quickly as you can. I'm happy to be in your hands as to timetables. As soon as you get some information to me, I'll deal with it straight away. I don't want to delay the certification process myself. But there is that issue sitting there. It's a foundational requirement of agreement making. I need to satisfy myself that that requirement has been met.

PN45

And as I said, I've alerted you to it. Prima facie there's an issue. I don't have a concluded view, however, and as I said, I'm encouraged in my approach to agreement-making by the objects of the Part in the Act, which is to certify, or facilitate agreement-making. So in that regard - well, as I said, everything else is dealt with. I have no other issues in relation to certification at all. The agreement is a detailed one and the statutory declarations are otherwise very detailed and informative. It assists me in my assessment of the no-disadvantage test as well, irrespective of the reference to the incorrect relevant award.

PN46

So we can leave it there. We can adjourn for those purposes and everything else has been done. You wouldn't need to come back unless there was some other profound difficulty where I needed to get you back. But other than that, I would propose to deal with the matter of documents and if there was a decision that was to - if there was prospectively in the future a decision not to certify the decision I would give you, before I reached that decision - it would only come after I've read your further submissions and I'd give you a further opportunity to reconvene to put anything else to me if you wanted to.

PN47

But that's hypothetical in terms of my view in response to your submissions. You may have thoughts on the matter as well. Mr Jager, does that appear to be the best way to go in your view at the moment?

PN48

MR JAGER: Mr Commissioner, I think so, yes.

PN49

THE COMMISSIONER: Ms Virine, does that appear - - -

PN50

MS VIRINE: Yes.

PN51

THE COMMISSIONER: - - - to be the best way for the moment? Good. Okay, then. Well, we're adjourned.

ADJOURNED INDEFINITELY [10.22am]