AG2004/2641, Transcript of Proceedings [2004] AIRCTrans 2366 (24 June 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 630
A 18.6.04
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2004/2641

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Water Corporation and Others for
certification of the Water Corporation
Enterprise Agreement 2004

PERTH

11.31 AM, TUESDAY, 15 JUNE 2004

PN1

MR S. ROOKE: I appear for the Water Corporation in this matter.

PN2

MR D. MOSS: I appear for the Association of Professional Engineers, Scientists and Managers, Australia.

PN3

MR G. ANDERTON: I appear on behalf of the Australian Workers' Union.

PN4

MR J. NICHOLAS: I appear on behalf of the Liquor, Hospitality and Miscellaneous Union.

PN5

THE DEPUTY PRESIDENT: I have reviewed the documentation in the agreement and forwarded to the parties a report where I have identified a number of issues that I wanted to address - or wanted you to address, that is the parties. So if they can be addressed and any other issues anyone wishes to raise. Thank you. Mr Rooke?

PN6

MR ROOKE: Thank you, your Honour. Yes. The report that was provided to us has drawn attention to four drafting errors in the document and I have also become aware of a further drafting error which I would seek leave to correct by way of replacement pages. And perhaps if I hand up the proposed replacement pages.

EXHIBIT #A1 REPLACEMENT PAGES

PN7

MR ROOKE: The first proposed change is in clause 6 on page 4. The last sentence in the first paragraph in the document that was lodged said that:

PN8

The matter would be referred for arbitration.

PN9

And I think the gist of the note in the report, your Honour, is to the effect that the Commission is required to explore the possibility of resolving matters, first by conciliation, and what we propose in the redraft is that - the matter - just that:

PN10

Any party may apply to the appropriate Industrial Relations Tribunal to have the matter conciliated and if necessary arbitrated.

PN11

THE DEPUTY PRESIDENT: Yes.

PN12

MR ROOKE: Now in that same clause there is reference to:

PN13

The appropriate Industrial Relations Tribunal -

PN14

and I gather from the question in the report that some explanation is required as to what that means. This wording arises from the fact that the same document is being presented to the WA Industrial Relations Commission as well as to the Australian Commission and the intention there is that those parties to the state registered agreement would have the ability to refer the matter to the state Commission whereas the parties represented here today would refer any dispute to the Australian Commission.

PN15

THE DEPUTY PRESIDENT: So who are the parties here today?

PN16

MR ROOKE: The Liquor, Hospitality and Miscellaneous Union, The Australian Workers' Union, the Association of Professional Engineers, Scientists and Managers and the Water Corporation.

PN17

THE DEPUTY PRESIDENT: So the Civil Service Association of WA and the Communications, Electrical and Electronic Energy - - -

PN18

MR ROOKE: And the metal - - -

PN19

THE DEPUTY PRESIDENT: - - - etcetera union.

PN20

MR ROOKE: Yes. And the metal workers.

PN21

THE DEPUTY PRESIDENT: They are not seeking to be parties, or can they be, to this agreement to be certified here.

PN22

MR ROOKE: That is correct, sir.

PN23

THE DEPUTY PRESIDENT: But they are parties named and bound.

PN24

MR ROOKE: Yes. They are parties to the agreement and members of a joint single bargaining unit.

PN25

THE DEPUTY PRESIDENT: How can they be parties to a certified agreement if they are not parties?

PN26

MR ROOKE: They are parties to the agreement. They are not parties to the certified agreement.

PN27

THE DEPUTY PRESIDENT: But I can only certify the agreement.

PN28

MR ROOKE: Yes. Yes, your Honour. And you are certifying it in relation to the parties here today.

PN29

THE DEPUTY PRESIDENT: I cannot selectively certify. I can only certify the agreement.

PN30

MR ROOKE: Yes. The agreement - clause 3 of the agreement provides that it is an agreement made under Part VIB of the Workplace Relations Act in respect of the parties here today.

PN31

THE DEPUTY PRESIDENT: I see.

PN32

MR ROOKE: And that it is in agreement under section 41 of the Industrial Relations Act 1979, that is the WA Act, in respect of those other parties that were just mentioned.

PN33

MR NICHOLAS: Excuse me, sir.

PN34

THE DEPUTY PRESIDENT: Yes.

PN35

MR NICHOLAS: I may have power to provide some assistance possibly. My understanding is that under the Act agreements under section 170LJ can be made between an employer and a union so to that extent there is possibly six or seven separate agreements all bundled up into the one piece of paperwork, if you like, and so in this instance the Commission would be certifying the agreement with the unions that have the federal awards and would not be certifying the agreement as it applies to under state registered unions.

PN36

And that - there is not much indication but the approach of Senior Deputy President Kaufman in his decision certifying the last agreement which was in the same terms, which is PR926730, just makes reference and I quote him. He says:

PN37

The agreement that I certify is that made between the employer and the organisations registered under the Workplace Relations Act 1996.

PN38

THE DEPUTY PRESIDENT: But that - but the agreement provided to employees was the document that I have before me. Is that not right?

PN39

MR ROOKE: Yes, your Honour.

PN40

THE DEPUTY PRESIDENT: But you are not asking me to certify the agreement with respect to those organisations registered in the state jurisdiction. Is that right?

PN41

MR ROOKE: That is correct.

PN42

THE DEPUTY PRESIDENT: Can I do that?

PN43

MR ROOKE: Well, it is our view that - - -

PN44

THE DEPUTY PRESIDENT: Mr Nicholas says I can.

PN45

MR ROOKE: It is our view that you can. This is the fourth occasion on which we have presented a document of the same type to the Australian Commission.

PN46

THE DEPUTY PRESIDENT: But over that period of time there has been an evolving and refining understanding of what the jurisdiction of this Commission is with respect to certification of agreements.

PN47

MR ROOKE: I accept that you are not bound by the fact that it has happened before.

PN48

THE DEPUTY PRESIDENT: Well, it is not so much not bound by it. I am saying that there has been a series of Full Bench decisions clarifying what the jurisdiction is. That is what I am saying Mr Rooke so the understanding of what might have been understood to have been the jurisdiction when other certifications for similar circumstances came up. It might be clearer now than it was in the past. That is all I am saying.

PN49

Yes. Well, I will have to have a further look at whether that can be done. The other issue that arises out of the question I raised and what you have provided me today is, or issues, is that the purporting of an empowering of this Commission to arbitrate on the terms of a future agreement. And I suppose that is really a question for the time when that arises if it arises rather than now. But I do not think the parties in an agreement being certified now can empower the Commission to have a power that it does not otherwise have. The Commission does not have the power to arbitrate on agreements.

PN50

MR ROOKE: What - if arbitrates on a proposed agreement?

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR ROOKE: That provision has been written into the agreement to provide some comfort to the unions who anticipated that in the absence of such a provision they may in some way be prevented from taking protected action.

PN53

THE DEPUTY PRESIDENT: Well, they have got no reason to question whatever the motivations are of the parties in coming to terms of an agreement. The only issue I have is whether you are seeking to empower the Commission to have a jurisdiction it does not otherwise have. And whether an agreement can do that. But as I say that is probably a question to be addressed should the circumstance arise rather than now. But I am basically alerting you to - - -

PN54

MR ROOKE: Yes.

PN55

THE DEPUTY PRESIDENT: - - - that prospect. Yes, Mr Nicholas?

PN56

MR NICHOLAS: Sir, my understanding of that part of the agreement was essentially that part of the agreement was essentially that it preserved the provisions of the Act in relation to bargaining for an agreement for the wages component of the conditions in the third year. So in that respect if there is a bargaining period initiating and the second and third parts of that clause do preserve that right to take protected industrial action and so forth - if there is a bargaining period initiated and then that is then terminated by the Commission then the Commission would have powers to conciliate and arbitrate.

PN57

And it is my understanding that that clause is there to essentially provide the parties with the understanding that the provisions of the Act still apply in relation to it to wages in the third year.

PN58

THE DEPUTY PRESIDENT: I see. So the intention is not to provide a power that is not otherwise available.

PN59

MR NICHOLAS: That is my understanding, sir.

PN60

MR ROOKE: That is certainly my understanding that, yes.

PN61

THE DEPUTY PRESIDENT: Well, that clarifies that. The question then arises as to the document you have then handed up this morning, Mr Rooke, is to whether the agreement can be altered to incorporate those changes, the change you have alluded me to is to have the word "conciliated" inserted into the clause. Can I do that?

PN62

MR ROOKE: Well, in my submission, yes, your Honour, you can. What is required is that you be satisfied that the agreement has been genuinely approved by a valid majority of employees covered by it, I think that is what you - the question.

PN63

THE DEPUTY PRESIDENT: Well, yes, and then two questions arise; one is what is the agreement, what was the agreement made between the parties and was the agreement made - did it have the word conciliated in, or didn't it, and if it was and then the agreement that was made and had the word conciliated in it is the understanding, even though it might not have been in writing, is that the agreement that was then provided to employees in writing to vote on?

PN64

MR ROOKE: What was provided to the - - -

PN65

THE DEPUTY PRESIDENT: Because if it wasn't then on that basis it may be that LJ(2) or (3)(a) has not been complied with. I am sorry to appear pernickety on this, Mr Rooke, but these issues are often pursued by various parties on appeal to Full Benches and that many of which have established that if they are not explicitly complied with the Commission does not have any jurisdiction to certify.

PN66

MR ROOKE: Yes, I understand what you are saying. The agreement - the document that existed between the parties - did not include the word "conciliation" but I think I speak on behalf of all of the parties that it was certainly not the intention to do anything other than what is - - -

PN67

THE DEPUTY PRESIDENT: Yes.

PN68

MR ROOKE: - - - intended by the legislation.

PN69

THE DEPUTY PRESIDENT: A potential alternative, rather than to change the agreement, is to give an undertaking that that is the manner in which that clause will be applied.

PN70

MR ROOKE: Well, I unreservedly give that undertaking.

PN71

THE DEPUTY PRESIDENT: Yes, that may be - I will have to review that - but the question arises in my mind as well is whether that in effect varies the agreement and therefore the whole process has to be gone through again as well. But I will take it as given, and I don't hear any objection to the contrary, that an undertaking is provided by each of the parties here, should the agreement be certifiable, that that is the intent of which clause 6 and the manner in which clause 6 will be applied.

PN72

MR ROOKE: Yes, thank you, sir. The report also raises a question in relation to clause 7.7 in that it states that the agreement is for three years from 1 April, whereas the stat dec says the expiry date is on 31 March. Now what we are saying there is that the agreement comes into effect on 1 April 2004 and continues in effect for three years, the last day of that agreement is 31 March. And there is one other error that occurred which, whilst the others that have been referred to have probably had not a lot of consequence to the staff covered by the agreement, this final error is of significant consequence to them because when the document was put together the second pay increase at 4 percent from 1 April 2005 was not included.

PN73

THE DEPUTY PRESIDENT: Yes. But that was the agreement that was made.

PN74

MR ROOKE: Which was certainly - that was the agreement that was made - and that was certainly provided - - -

PN75

THE DEPUTY PRESIDENT: But that wasn't provided to employees.

PN76

MR ROOKE: Well, it was provided to employees in the material that was produced for employees to understand what was - - -

PN77

THE DEPUTY PRESIDENT: But it wasn't provided in the - - -

PN78

MR ROOKE: It wasn't in the documents that was available to them to examine. Your Honour, it is from a practical point of view I would put that if employees were prepared to vote in favour of an agreement which did not provide for a pay increase at 4 percent on 1 April 2005, they would certainly have approved one which did, and in fact that was their understanding.

PN79

THE DEPUTY PRESIDENT: So again, Mr Rooke, it comes down to compliance with 170LJ(3)(a).

PN80

MR ROOKE: Yes, sir.

PN81

THE DEPUTY PRESIDENT: And if that is not explicitly complied with then it might be that it hasn't been satisfied in which case it might be that an application may not be made, may not be able to be made, valid application pursuant to section 170LH, because the agreement that was provided was not the agreement that was made. Again I am sorry to be pedantic on this but I am - - -

PN82

MR ROOKE: Well, I am just - yes.

PN83

THE DEPUTY PRESIDENT: Well, I seem to be pedantic, but they are live issues here, I can tell you, Mr Rooke.

PN84

MR ROOKE: I understand, your Honour, you are simply doing your job. If we think about the practical consequences, I don't think any of my friends here, or the people they represent, are going to have a problem about a pay increase within the term of the agreement, that may not have been in the document that people voted upon. I am certainly authorised to give an undertaking that the Water Corporation will not renege on the deal.

PN85

THE DEPUTY PRESIDENT: Well, it is not a question of practicality, it is not even a question of a payment being made and a commitment and an obligation either by that commitment or otherwise to make the payment. It is a question of whether the agreement that was made was the one that was provided to employees in writing. If it is not, or was not, then it may be an application cannot be made because 170LJ(3)(a) has not been complied with, or it has not been satisfied. It might be a question of whether what satisfied means but that on one view very recent is the obligation. It is not a view incidentally, Mr Rooke, that I concurred with.

PN86

MR ROOKE: But that doesn't help us. I guess if I can approach this from another point of view. What the staff voted on was the documentation that was available to them, and there was the document that was filed, there was also a more reader friendly document that was produced by staff, and that was provided to all staff. The other document was available to them but I am not aware of anybody actually seeking to read it because they had the information that they required in this document and it clearly outlines that there is to be a second pay increase from 1 April 2005.

PN87

THE DEPUTY PRESIDENT: Thank you. I will need to consider that. The other issue was a dispute resolutions clause.

PN88

MR ROOKE: And that is on page 73 and 75, the reference to the relevant Industrial Relations Tribunal.

PN89

THE DEPUTY PRESIDENT: That is explained by your approach with the agreement being registered or sought to be certified in the state and the federal jurisdictions, is it?

PN90

MR ROOKE: Yes.

PN91

THE DEPUTY PRESIDENT: So that is what the intent there is.

PN92

MR ROOKE: Yes.

PN93

THE DEPUTY PRESIDENT: Again in that respect what you are seeking therefore is an empowerment, is it, pursuant to section 170LW; is that what you are seeking? Yes, thank you. Mr Moss, or Anderton or Nicholas.

[12noon]

PN94

MR MOSS: Sir, well - - -

PN95

THE DEPUTY PRESIDENT: Mr Moss.

PN96

MR MOSS: It is an agreement to replace the existing 2003 agreement. Mr Rooke discussed these errors with me. In relation to the first one and the third one, I thought they had been picked up and had been changed in the document. The second error in relation to the wages, I must say I never picked that up myself. It was clearly agreed that there would be a 4 per cent increase from 1 April '05, the first pay period on or after that date and I had thought that there was located elsewhere in the agreement words to the effect that there would be a 4 per cent increase and then I never checked the salary schedule. Now checking it, I can see that I am equally culpable as Mr Rooke and I do apologise.

PN97

THE DEPUTY PRESIDENT: You could end up with an unintended wage freeze, Mr - - -

PN98

MR MOSS: Yes. In relation to the issue of the state unions, state unions are not a party here and really clause 3 is merely an explanation that there is a parallel system where some people are covered by state unions under a state instrument and these three unions are party to this and their members and people covered within their industrial coverage is covered by this Certified Agreement. And I don't see that - that that creates a problem for certification.

PN99

THE DEPUTY PRESIDENT: Yes.

PN100

MR MOSS: I was referring to clause 3, sir, the mention of those various state unions. All employees had the substance, the full substance of the agreement explained albeit the issue of conciliation instead of conciliation and arbitration wasn't in the document, I would submit, sir, that under the Act the Commission must go to conciliation, I think that is a mandatory requirement. I will stand corrected if it is not - if I am not correct there but certainly within the discretion of the Commission in the circumstances so I don't think that that should create a problem in having the agreement certified either.

PN101

All the other requirements of the Act, the employees were well informed about what is going on. They had access to the substance of the agreement, there is only these minor things. I filed a statutory declaration on 27 May. When I filed it in relation to the dispute resolution procedure, I thought that the document which had been filed referred to the relevant or appropriate industrial tribunal. It was only later that I found out that that wasn't the case, that was an oversight so that is why completed the statutory declaration in relation to that particular item.

PN102

All I can say, sir, is that the employees all understand what was agreed. The parties all understand what was agreed. Mr Rooke has discussed those various amendments with me and I am in full agreement with them, sir.

PN103

THE DEPUTY PRESIDENT: Yes, thank you, Mr Moss. Mr Anderton.

PN104

MR ANDERTON: Deputy President, I concur with what has been spoken about on record here this morning. Just to further that - that particular point about the wages that have been passed up to you this morning, there was also to our membership, we put out a spreadsheet with a clear explanation. Because the award was so large we submitted that award for people to have to go through the whole agreement but we - we supplemented that with an explanation sheet that actually went through the whole agreement with all of the changes that we had had actually made and that made clear reference to that - to that increase in the second instalment. So they were - they were under no disillusionment when they voted on the agreement in its entirety.

PN105

THE DEPUTY PRESIDENT: Yes. I don't doubt that at all from what has been put, Mr Anderton, so I don't want anyone to take an inference that there wasn't a comprehensive understanding by employees before they voted and there was genuine consent and approval but that is not the issue I raise.

PN106

MR ANDERTON: The one thing - the one thing I will raise there because I am a unionist at heart and an honest unionist at heart, there is no statutory declaration from the AWU that I have found out this morning and I make all apologies for that. It seems to have been mislaid and not got to your hands.

PN107

THE DEPUTY PRESIDENT: Yes.

PN108

MR ANDERTON: I wouldn't see - I am hoping that you will see it in the same light that I am hoping that that doesn't preclude you from finalising this agreement today if I give an undertaking to the Commission by close of business today to have that statutory declaration in your hands.

PN109

THE DEPUTY PRESIDENT: Yes, thank you, Mr Anderton. Thank you for raising that and bringing that to my attention. Mr Nicholas.

PN110

MR NICHOLAS: Thank you, sir. I can't provide any further assistance other than what has been said before and I concur with everything that the other parties - - -

PN111

THE DEPUTY PRESIDENT: Do you have any comment on section 170LJ(3)(a) and whether that has been complied with or not?

PN112

MR NICHOLAS: I wouldn't have any detailed submissions to make today to you, sir, but what we would say is the correct interpretation of this agreement is that this clause is - that the approval is given of the agreement which constitutes the understanding of the parties and the fact that there has been an error in the drafting of that doesn't affect the fact that there is agreement made. So in that sense, we would say that there is valid approval and the - that the employer has taken reasonable steps that they have had a - that the employees have been given a written copy of it.

PN113

The fact that those reasonable steps have resulted in the employees being - having available a copy that is - doesn't actually reflect the agreement, doesn't take away from the fact that there has actually been agreement made and there has been an attempt to reduce it to writing that contains some errors and we would say it is within the power of the Commission to remedy those drafting errors.

PN114

THE DEPUTY PRESIDENT: So what you are saying - let me understand this properly and I don't want to put words into your mouth, and you won't let me anyway, but from what I understand you to be saying is the employer took reasonable steps to ensure that the agreement that was made was provided in writing and that there were - that notwithstanding those reasonable steps, there were errors. So LJ(3) was satisfied. Is that what you are saying?

PN115

MR NICHOLAS: Yes, sir.

PN116

THE DEPUTY PRESIDENT: You are then going on to say, I take it, that LJ(2) that what was approved by a valid majority was indeed the agreement that was made notwithstanding that there were errors in the agreement that was provided in writing. Is that - - -

PN117

MR NICHOLAS: That is right, sir, that - - -

PN118

THE DEPUTY PRESIDENT: Is that an accurate reflection of what you have said or intended to say?

PN119

MR NICHOLAS: That is what I intended to say, yes, sir.

PN120

THE DEPUTY PRESIDENT: Yes. Well, I will consider that. Is there anything else you want to say, Mr Rooke?

PN121

MR ROOKE: No. No, thank you.

PN122

THE DEPUTY PRESIDENT: I will adjourn these proceedings.

ADJOURNED INDEFINITELY [12.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 REPLACEMENT PAGES PN7