AG2004/5326, Transcript of Proceedings [2004] AIRCTrans 2676 (14 July 2004)

AUSCRIPT PTY LTD
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ADMINISTRATOR APPOINTED

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TRANSCRIPT OF PROCEEDINGS

O/N 2902

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/5326

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LS of the Act
by Hay Point Services Pty Ltd and Others for
certification of the Hay Point Services Pty Ltd
Enterprise Agreement 2004

BRISBANE

10.43 AM, FRIDAY, 2 JULY 2004

PN1

THE COMMISSIONER: I might take appearances.

PN2

MR G. GERARD: I appear for Hay Point Services Pty Ltd.

PN3

MR R. BARKER: I appear on behalf of the CFMEU.

PN4

THE COMMISSIONER: Good, thanks, Mr Barker. Mr Gerard?

PN5

MR GERARD: Thanks, Commissioner. Commissioner, the certified agreement that you have before you today for certification is subject to an application made pursuant to Division 3 of Part VIA of the Workplace Relations Act. The nominal expiry date of the agreement is three years from the date of certification. Commissioner, it is our submission that the enterprise agreement meets the No Disadvantage test of the act in that the agreement is superior to the parent award, that award being the Bulk Loading Hay Point Services Pty Ltd Award 1998.

PN6

Commissioner, the requisite statutory declarations required under rule 50 of the act have been filed with the agreement. The declaration is being made by myself for Hay Point; Mr Vickers for the CFMEU; Mr Peter Lees for the AMWU and Mr Dick Williams for the CEPU. Commissioner, is salient to note that the vote at Hay Point, as indicated in the statutory declarations, was conducted on 21 May, however, the requisite documents were not filed until 21 June, which, in our submission, is only a relatively short period outside the 21 day rule as required by section 170LS. But I can advise the Commission that in that short time there has been no change to the composition of the work force. Commissioner - - -

PN7

THE COMMISSIONER: Yes. The issue of the composition of the work force is an interesting one of derivation but, nonetheless, I am not of the view that - I should say, compliance in relation to the statutory time period is an issue, in my view, of the consequences and effects of non-compliance. In this case we are only dealing with the agreement as the agreement between the parties and, failing any alleged mischief on the part of either party as to any reason for further delay, that is, for example, an attempt to defer a payment of a pay rise that would otherwise have been available - and that is not the case, Mr Barker?

PN8

MR BARKER: No, it's not, Commissioner.

PN9

THE COMMISSIONER: There not being any mischief, then it would appear to me to be of no consequence, that is, the delay in filing is of no consequence and non-compliance with the section in this regard is not an impediment to certification. That said, Mr Gerard, do you want to continue?

PN10

MR GERARD: I appreciate that, Commissioner, thanks. And I won't address that matter further based on your comments from the Bench. Commissioner, unless there are any questions that you do have - I understand Mr Barker was going to address you on the reasons why the documents were filed late but that is probably terribly necessary at this point in time. Unless you have any questions of me, we would commend the agreement for certification.

PN11

THE COMMISSIONER: Yes, just generally, Mr Barker, you are of the same view, are you: commend the agreement to stand by the statutory declaration?

PN12

MR BARKER: Definitely, Commissioner.

PN13

THE COMMISSIONER: Good, thanks, Mr Barker. The only issue I wish to discuss with the parties is the dispute resolution clause at clause 49, and in particular 49.2.2. Now, by way of background could I just indicate to the parties that the Commission's role, which is attracted ostensibly on the request of the parties, at clause 49.3.10 is dependent upon the Commission exercising its discretion to accept that empowerment under section 170LW of the act and 170LW of the act states that - under the heading, Procedures For Preventing And Settling Disputes, it states:

PN14

Procedures in a certified agreement for preventing and settling disputes between ...(reads)... to settle disputes over the application of the agreement.

PN15

So it is a discretion on the part of the Commission as to whether or not it accepts any empowerment which is sought through the certified agreement and, in this case, at clause 49.3.10 of the agreement. Now, that said by way of background, clause 49.2.2 reads:

PN16

The employees of the company whose work is regulated by this agreement ...(reads)... dispute or disputes remain unresolved.

PN17

Now, can someone tell me just what that means?

PN18

MR GERARD: Commissioner, by way of background, in the negotiations of this certified agreement, which, for the Commission's benefit, has been done at a state level on this particular part of the agreement, which the employees and the delegates at the site have adopted as their procedure, the parties at state level - being the CFMEU state officers, metal workers and CEPU state officers and the company - have formed a view under a fairly exhaustive disputes resolution procedure that neither party wants stoppages of work.

PN19

What we did, Commissioner, and there was very little argument about this in the negotiations, we actually adopted terms that have arisen in some section 127 decisions, particularly by Commissioner Bacon, given our experience with Commissioner Bacon in the coal panel. It was the view of the parties that we thought that procedure or the procedure that the Commission had adopted in those section 127 decisions was of use to the parties in that neither party particularly wanted stoppages of work and that the whole tenor on this particular clause is to make it as exhaustive as possible.

PN20

THE COMMISSIONER: I'm familiar with the clause by Commissioner Bacon. I'm not too sure whether the context actually survives its transmission into this circumstance or not. But to come to the crunch of it my concern is that what is being asked here - first of all that the Commission play a role - is to be requested to play a role in certifying when a disputes resolution clause has been exhausted for purposes of authorising action, industrial action - is that what it means?

PN21

MR BARKER: No.

PN22

THE COMMISSIONER: What does it mean then?

PN23

MR BARKER: It means the fact that a certificate could be issued to us as a party, that we have exhausted the disputes procedure. But I think it has also got to be read in conjunction with 49.2.4, Commissioner, in that nothing in the procedure exhausts the rights of either party at common law or industrial law.

PN24

THE COMMISSIONER: If a member certifies that the disputes resolution clause has been exhausted - - -

PN25

MR BARKER: It doesn't automatically follow that there would be dispute, a stoppage of work.

PN26

THE COMMISSIONER: Yes. All it does is, you are saying, imply that - it is meant to indicate that the disputes resolution clause has been completed?

PN27

MR BARKER: Yes.

PN28

THE COMMISSIONER: That's all it means?

PN29

MR BARKER: Yes.

PN30

THE COMMISSIONER: It doesn't have any effect, the parties are saying, on authorising industrial action after that?

PN31

MR BARKER: No, it doesn't authorise industrial - if industrial action then emanated, Commissioner, the other powers on the act available to either party are still there.

PN32

THE COMMISSIONER: Yes. So it has no effect on making any industrial action that subsequently takes place unprotected - protected industrial action at all?

PN33

MR BARKER: No, it does not.

PN34

THE COMMISSIONER: All it does is, you are saying, indicate that the disputes resolution clause has been completed: that's it?

PN35

MR BARKER: That's it.

PN36

THE COMMISSIONER: That's the only work that it does.

PN37

MR BARKER: In some ways it does the work about keeping parties honest, Commissioner.

PN38

THE COMMISSIONER: Yes. You see, the reason I have derived my concern is that I have read it as saying the employers of the company whose work is regulated by the agreement shall refrain from engaging in industrial action unless - well, the ipso facto is that we won't do it unless there is a certificate. You see, it's the conjunction of the clause: "shall refrain from engaging in industrial action", with "unless". So it is the wording that is - I take what you mean, Mr Barker, as to its intention but on the face of it the wording seems to suggest something else. But you are telling me the actual meaning - - -

PN39

MR BARKER: No, that's not the case. It's not - there is not a clause that is asking the Commission to issue a certificate to empower somebody to take some action and then protect it when it may be unprotected by a decision that would come about under the act.

PN40

THE COMMISSIONER: So quite clearly, that reading of "shall refrain from industrial action unless", doesn't actually do that work. It's actually that - - -

PN41

MR BARKER: No, it doesn't.

PN42

THE COMMISSIONER: Yes, okay. But, of course, the exhaustion of the dispute's resolution procedure in effect, however, I should say - and it goes to the question of whether or not the certification that you are seeking is required in the first place - turns on 49.3.10 in any event.

PN43

MR BARKER: That's correct.

PN44

THE COMMISSIONER: The disputes resolution procedure wouldn't be completed until the Commission has determined - resolved the matter.

PN45

MR BARKER: Yes.

PN46

THE COMMISSIONER: So, in effect, however, - - -

PN47

MR BARKER: That may never be - - -

PN48

THE COMMISSIONER: - - - the Commission could only ever issue the certificate once it had - well, it would never issue a decision because it would have resolved the issue by determination.

PN49

MR GERARD: That was our view, Commissioner.

PN50

THE COMMISSIONER: So, you see what I mean? There are some potential redundancy in there. A certificate would never be issued because the unresolved dispute would have been determined by the Commission as a consequence of the exhaustion of the disputes resolution procedures. So you will never get a certificate from the Commission.

PN51

MR BARKER: Over this - - -

PN52

THE COMMISSIONER: Under this - because for the disputes resolution procedure to be exhausted it would have determined the matter pursuant to the final clause in the disputes resolution procedure.

PN53

MR GERARD: Yes, that's correct.

PN54

THE COMMISSIONER: So I will note all of that and we will note it in the certificate too to avoid any future confusion and to assist any member in the future as well. I would, however, say that I'm not inclined, unless the parties want to suggest or to make submissions to me to consider otherwise, that I would allow a role for the Commission pursuant to section 170LW in respect of that clause, 49.2.2, because I suspect it may - on its wording it may put the Commission in an invidious situation as to determining what its role might actually have been.

PN55

From what the parties are telling me, in any event, that isn't any longer perhaps a matter that would need to be determined by the Commission because you have told me what it means. Well, having said that, I think your rewording of the intention of the clause is such that it would probably relieve my concerns in that regard as well because I think the certificate and on the transcript would put any issue arising in that regard to rest in a way, regardless of any Commission rule.

PN56

MR GERARD: Commissioner, I think - to add to what you have said and to assist, I think the concept of the clause was that there is a disputes procedure here which is quite exhaustive. It goes to the extent of actually comparing the Commission, as you say correctly, to determine the matter. There is no need for industrial action. So the only circumstance in which we would see it arising would be a wild cat stoppage completely outside the disputes procedure and the parties are of the view that because this disputes procedure is very exhaustive and empowers the Commission to determine that - is there is no need for stoppages. So I think it would be - - -

PN57

THE COMMISSIONER: I understand your intention. It's just that, given our discussion before and that you have a final step, I just wonder whether 49.2.2 actually does the work you may have intended it to do because the matter would have been - see, the Commission wouldn't certify anything until it finished its role, which is part of the disputes resolution procedure. But, nonetheless, I - look, I think the transcript is - and the explanation of the terms of that clause 49.2.2 is sufficient for the purposes of resolving any potential disputes in the future and will be of use to the Commission in working out what it is intended to do and I have no further concerns regarding the clause at all.

PN58

On the basis of the statutory declarations and other materials before me the submissions of the parties are of the view that the agreement has been made in compliance with the laws of the Commission and is also made in conformity with the requirements of the act and I am of the view that the agreement is capable of certification from today's date pursuant to clause 3 for a period of three years. Unless the parties have anything else they wish to add at all? Good.

PN59

MR BARKER: Thanks, Commissioner.

PN60

THE COMMISSIONER: Thanks very much. We are adjourned. Thanks everyone.

ADJOURNED INDEFINITELY [10.59am]