AG2004/4266, Transcript of Proceedings [2004] AIRCTrans 3047 (4 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 3036

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/4266

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LK of the Act
by Ramtaps Pty Ltd for certification of the
Ramtaps Pty Ltd Certified Agreement 2004

BRISBANE

10.39 AM, MONDAY, 26 JULY 2004

THIS HEARING WAS CONDUCTED BY TELEPHONE
AND RECORDED IN BRISBANE

PN1

THE COMMISSIONER: If I could just take some appearances, thanks?

PN2

MS L. VANDERSTOEP: I appear on behalf of Ramtaps Pty Ltd, and also making appearance via the telephone today is MR GARY STEVENS, the Manufacturing Manager, MR BRETT CHOQUENOT, who is the employee representative, and also MS JOYCE DOOREY, who is an employee representative as well. May it please the Commission.

PN3

THE COMMISSIONER: Good. Thanks, Ms Vanderstoep. Now, I've received some submissions by facsimile this morning but you might want to take me through some of this.

PN4

MS VANDERSTOEP: May it please the Commission. We make this application pursuant to section 170LT of the Workplace Relations Act 1996. It is an agreement made as a 170LK agreement. We rely on the statutory declarations that have been supplied by Mr Stevens of Ramtaps, Mr John Dally and also Mr Brett Choquenot, who is the employee representative. The information that was submitted to you this morning was a copy of the EBA increase as of 1 May 2004 and reflects an increase that will be paid when this agreement is certified.

PN5

There was also a comparative table submitted to the Commission between the agreement and the award, and there was a minutes submitted reflective of documentation that was kept in relation to the enterprise bargaining committee's meetings, and there was also a memo that was submitted on the 16th of - sorry - that was written on 16 February 2004. From what you will see before you, Commissioner, we have not been able to supply a notice, a written notice, in accordance with section 170LK(2) of the Act. We were going to make some further submissions on that this morning, Commissioner.

PN6

THE COMMISSIONER: Is that because it can't be located?

PN7

MS VANDERSTOEP: Yes, that's correct, Commissioner.

PN8

THE COMMISSIONER: But I can presumably - the people here today could attest to it having been distributed in the terms that - - -

PN9

MS VANDERSTOEP: No, Commissioner. What's occurred is that there has been a number of consultative committee meetings with the parties. There's also been - the employees have received each a copy of the agreement, and that's been distributed. In relation to the employees being notified about contacting the union, that's actually been done verbally, and we have Ms Joyce Doorey on the phone, who can attest that. She actually contacted the union on a number of occasions. But, no, we don't have the notice in accordance with 170LK(2).

PN10

THE COMMISSIONER: Is that just because there was no notice?

PN11

MS VANDERSTOEP: That's correct, Commissioner.

PN12

THE COMMISSIONER: Yes.

PN13

MS VANDERSTOEP: However, the agreement was passed by a valid majority. 99 voted for and 6 voted against.

PN14

THE COMMISSIONER: And what do you say about the view that the requirements of section 170LK are mandatory?

PN15

MS VANDERSTOEP: Yes, Commissioner, we realise that. We're endeavouring to explore if there's any other alternatives that we can take up prior to seeing if this matter needs to go back out for another re-vote, Commissioner.

PN16

THE COMMISSIONER: So there was no notice?

PN17

MS VANDERSTOEP: The only notice being of 16 February, the memo that was submitted.

PN18

THE COMMISSIONER: 170LK(2) requires that the employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days notice in writing.

PN19

MS VANDERSTOEP: We can certainly pinpoint the notice back to 16 February in writing.

PN20

THE COMMISSIONER: Sorry, a notice - - -

PN21

MS VANDERSTOEP: There was a memo distributed of which you have a copy, Commissioner. It was distributed in writing to the employees as of 16 February.

PN22

THE COMMISSIONER: Okay. So the memo of 16 February is the notice?

PN23

MS VANDERSTOEP: Is the notice.

PN24

THE COMMISSIONER: And so your submission is that this memo meets the requirements of LK(2)?

PN25

MS VANDERSTOEP: Commissioner, this is the only written notification that was given to the employees, however, there as extensive consultative committee meetings and the employees did receive a copy of the agreement. However, you will see that the memo doesn't actually address the issue of notifying the union in accordance with the Act, but we did - - -

PN26

THE COMMISSIONER: Well, it doesn't need to notify the union. The notice needs to specify the requirements of section 170LK(4), which is to allow employees a right to representation at their request of the union specified at LK(4), the one that is able to represent them in the workplace for the purpose of constitutional coverage. Your submission would be to me that that requirement has been met some other way, has it?

PN27

MS VANDERSTOEP: Yes, that's correct, Commissioner.

PN28

THE COMMISSIONER: And how has that been met?

PN29

MS VANDERSTOEP: My understanding, and Mr Gary Stevens can talk at more length about this, but that prior to the consultative committee meetings that Mr Stevens addressed the representatives and advised them that they were - that they could contact the union; that, in addition, they could be represented by the union. And, we also have Ms Joyce Doorey who has indeed contacted the union about these matters and kept the union informed. So, it's been done verbally but it certainly has not been captured in the notice.

PN30

THE COMMISSIONER: Yes. The Full Bench in S.J. Weir Pty Ltd about one month ago dealt with a related matter and found that even though one employee acted on the requirements of LK(4) in that - and indeed there was a meeting at which the union and the employee met and conferred, that still didn't meet the requirements of the Act, presumably because it still left open to question whether there was a general understanding of the entitlement, as opposed to the one individual's understanding I presume. Are you - so you would need to be in a position to tell me that Mr Stevens expressly stated the requirements of section 170LK(4) at the meeting. Everyone who needed to - everyone who was to be covered by that agreement and who subsequently voted was at that meeting and that everyone at that meeting understood what he said to be same as - identical as was required at LK(4).

PN31

MS VANDERSTOEP: I think that it was more of a cascading issue in terms of communication and, Mr Stevens, you might just like to comment in relation to how all the employees knew that they could contact the union.

PN32

MR STEVENS: Okay. Brett and Joyce are with me now. The situation was that - and at the point of time we had that meeting I wasn't actually the employer representative on that committee - we held elections to ensure that the staff were properly represented. And then, prior to the first meeting taking place, which was 5 April, I sat down with all the elected members of the committee and just briefly ran through to make sure that they were comfortable with what they had to do and that they understood that they were there to represent their staff and that company time was going to be provided prior to and following all meetings so that any information the staff wanted to take into the meeting their representatives were of a clear understanding of, and that following the meeting they'd have the opportunity to then pass information back. And also, at that meeting, I advised them that if they wished to be represented by a union, they had that right, and my understanding is that they clearly understood that. I mean, you can talk to Brett and Joyce on that matter if you wish.

PN33

THE COMMISSIONER: Well, there's two hurdles that need to be overcome here. One is that, quite clearly - and no-one is contesting it - the requirements of section 170LK(4) of the Act were not put in writing in the notice.

PN34

MS VANDERSTOEP: That's correct.

PN35

THE COMMISSIONER: So we know that's not contested. What is being submitted, though, is that the requirements of section 170LK(4) were met orally - - -

PN36

MS VANDERSTOEP: Yes.

PN37

THE COMMISSIONER: - - - at the meeting, and were met in their entirety - that is, everything section 170LK(4) said were understood - all the rights embodied in section 170LK(4), and there are numerous, were unambiguously understood by all of the employees at that workplace.

PN38

MS VANDERSTOEP: I just need to check that. Mr Stevens, did all the employees know or only the employer group - - -

PN39

THE COMMISSIONER: Can I just add to it. See, section 170 - if you do have a look at the - - -

PN40

MR STEVENS: I understand what you're saying and, I guess, simply put, the information was given to the representatives of the workforce, and if the underlying question is can I be 100 per cent certain that every single staff member was then advised and understood, then my response to that would be that I don't know. Now, what's happened in this company in the past, and the reason that company time was allocated before and after meetings, is that in the previous EBAs that were negotiated there was a major problem. We have some staff here that have trouble reading; some that have trouble comprehending what is written, and a lot of staff that can't be bothered reading noticeboards. And so, on all occasions, the representative was given the opportunity to actually discuss issues on mass with the staff and one-on-one.

PN41

THE COMMISSIONER: Now, can I just say this isn't a question of employees having to understand it. This is simply a question that were employees given information - putting aside the issue that it wasn't in writing - - -

PN42

MR STEVENS: Yes.

PN43

THE COMMISSIONER: Putting aside that, were employees given the information required at section 170LK(4)(a) and (b), and there's quite a number of things in there about rights in there that the notice - you know, that if you're subject to the agreement you've got a right to have an employee organisation who is entitled to represent your interests in the workplace, that it has constitutional coverage; represent you at your request for the purposes of meeting and conferring about the agreement. There are a number of steps in all of that.

PN44

Now, putting aside the issue that it wasn't in writing in the notice as required by the Act, what I'm simply trying to get at - that putting aside that other substantial issue, was what was put to the employees in that degree of specificity - that is, were the rights in LK(4) clearly conveyed verbally at that meeting? Because, I'd have to say that the two Full Bench decision that are germane in this regard, Austral Constructions Pty Ltd and an appeal - a decision of Deputy President Hamilton in S.J. Weir Pty Ltd, an appeal from Commissioner Grainger, both clearly specify that there is no room for ambiguity or confusion, that the requirements of LK(4) have to be fully conveyed and that they can't be ambiguous. And where the Commission, as presently constituted, has dealt with this matter in the past, it's only dealt with it by satisfying itself that those rights were clearly understood in their fullness by the employees.

PN45

Now, what I'm probing here is, putting aside the fact that it wasn't in writing and all the matters that have been dealt with in this Commission in relation to LK(4) previously have to my knowledge have all been that the requirements have been put in writing, and the debate is about whether or not what was put in writing was sufficient. We're now putting that issue aside and we're now dealing with something that's oral. You know, what was actually said and, you know, you would essentially have had to convey precisely the requirements of section 170LK(4) and/or have all employees be able to say that those are the particularised rights they understood were available to them at the time the agreement was - they were given notice that the agreement was going to be made. Now, I don't know whether you're of the view that you can - - -

PN46

MR STEVENS: I do understand what you're saying, and I think the situation here is that I only have sitting with me two of the representatives of the employees, so they can't speak on behalf of the others, and the other issue is that the chairman of the committee - since Mr Bloom has left the company and since the discussion that I had with Lynette on Friday afternoon till this morning, I haven't had a chance to make contact with him to find out where he is, because he has removed his diaries from the company, so I haven't had enough time to see if he's kept a record of that information and that I can access it.

PN47

THE COMMISSIONER: Well, look, I think given what I've just explained, I think it might be best if we just adjourn this matter so the parties can reflect on what the actual requirements are, Ms Vanderstoep. Does that appear to be the best way to proceed for the moment?

PN48

MS VANDERSTOEP: Yes, Commissioner. The only issue I would raise is that my understanding is that the employee reps knew that they could contact the union but, as you say - and be represented by them but, yes, I'm happy to seek and adjournment and to come back to the Commission.

PN49

THE COMMISSIONER: Yes. That would be helpful, I think. We're adjourned for current purposes. Thanks everyone.

PN50

MR STEVENS: Thank you.

PN51

MS VANDERSTOEP: Thank you.

ADJOURNED INDEFINITELY [10.56am]