AG2004/6678, Transcript of Proceedings [2004] AIRCTrans 3923 (7 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 13954
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

AG2004/6678

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by TDA Snow Engineering Pty Limited for
certification of the TDA Snow Engineering
Pty Limited Certified Agreement 2004

SYDNEY

10.30 AM, TUESDAY, 28 SEPTEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. I will take appearances, please.

PN2

MS N. STREET: If it pleases your Honour, Street for Australian Industry Group on behalf of TDA Snow Engineering Pty Ltd. Appearing with me is MR T. SNOW, the company representative and MR T. WALTON, the employee representative.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you very much. Yes.

PN4

MS STREET: Your Honour, this is an application made under division 2.6(b) of the Act for certification of an agreement made in accordance with section 170LK. The terms of the agreement were reached between the company and the employees as described in clause 4 of the agreement. We seek for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21-day time limit prescribed in 170LN(2). The Commission will have noted that whilst the agreement was approved by employees on 20 August 2004, it was not filed until 13 September 2004, which makes it five days outside the statutory time limit. Your Honour, the reason for this delay was largely administrative in forwarding the file from our Newcastle branch to the Sydney office.

PN5

THE SENIOR DEPUTY PRESIDENT: So there is no change in the composition of the workforce over the five days?

PN6

MS STREET: No. I have been instructed, your Honour, there has been no significant change in the workforce.

PN7

THE SENIOR DEPUTY PRESIDENT: So the vote couldn't be changed, we just get to a valid majority voting?

PN8

MS STREET: No, your Honour, no.

PN9

THE SENIOR DEPUTY PRESIDENT: Perhaps if now I deal with that and indicate that I will exercise my discretion pursuant to section 111LC(r) and extend the prescribed time frame. There is a valid application so I proceed on that basis.

PN10

MS STREET: Yes, thank you, your Honour. The notice of intention from the employer informed employees of their right to a request for representation in relation to the agreement. No such request from the union was made. Can I confirm, your Honour, that you have a copy of that notice of intention?

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, I do, thank you.

PN12

MS STREET: Your Honour, the company has prepared statutory declarations which we believe meet all the requirements of the Act to regulations and your Commission. We further submit, your Honour, that the requirements of section 170LK and 170LT have been met. However there is one exception. Your Honour, if I can refer you to clause 4.12 in the statutory declarations before you, your Honour, will see that a minor change at the employee's request was made to the agreement to clarify the intention of the parties one day after the notice of intention was issued. Two employees in accordance with section 170LK(2). Although the employees were given an additional 14 days in which to discuss the agreement and an amended copy of the agreement was reissued, a second notice of intention was not reissued by the company in accordance with section 170LK(8).

PN13

Your Honour, I am instructed that the amendment requested by the employees was made only one day after the issuing of the first notice of intention. Further, your Honour, I am instructed that the employees were aware that the company possessed the intention to make an agreement and the employees were aware that they had the opportunity to request union representation.

PN14

THE SENIOR DEPUTY PRESIDENT: How do you say that section LK(8) is not a requirement. It doesn't apply to LK(4)? You don't? There is not a requirement to repeat that step under LK(4)? LK provides ..... varied so the steps that must be retaken or followed are (2), (3), (5) and (7). There is no requirement for LK(4).

PN15

MS STREET: I see, your Honour. We took the view that pursuant to section 170LK(2) in providing the notice of intention or providing notice to - of making the agreement - - -

PN16

THE SENIOR DEPUTY PRESIDENT: I see, you are relying on section LK(2), yes.

PN17

MS STREET: Yes. However, if your Honour has a different view.

PN18

THE SENIOR DEPUTY PRESIDENT: No, no, no, no, I see what you mean now. LK(4) was to do with notifying the union, yes. Has LK(2), those steps been taken again? You say the reasonable steps have been taken. There's 14 days notice been given. Was it in writing?

PN19

MS STREET: The first notice of intention was, but reading that provision very literally, the company did not reissue the same notice of intention the day after or on the day that the variation was made.

PN20

THE SENIOR DEPUTY PRESIDENT: The trouble is they are mandatory, LK. They are absolutely mandatory and there is Full Bench authority to that effect.

PN21

MS STREET: I don't have such an authority, your Honour. We do have a decision from Richards C at PR944163. That decision was very similar in the situation where their was a failure to reissue the notice of intention.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, I think you will find there is authorities saying different things.

PN23

MS STREET: I have been aware of some other cases, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: My concern is this is the Act that is mandatory and it says "must", and it does specify "must" in writing.

PN25

MS STREET: We will still submit, your Honour, if you think it's appropriate, that there would be no real practical benefit of reissuing a notice of intention to the same effect that has been done the day before by the employer. There would no practical impact.

PN26

THE SENIOR DEPUTY PRESIDENT: It's not about practicalities, it's about what is legally required.

PN27

MS STREET: I take that, your Honour, to mean - - -

PN28

THE SENIOR DEPUTY PRESIDENT: And if something is mandated it is not discretionary. Totally different to you putting a discretionary argument to me, but you are not, you are putting something that's mandated by the legislation itself.

PN29

MS STREET: Is there room, your Honour, for a purposive interpretation of that provision given that in light of the intention behind the Workplace Relations Act to facilitate the making of agreements, that that could be read in conjunction with interpreting section 170LK(8)?

PN30

THE SENIOR DEPUTY PRESIDENT: It would be a matter for me to decide but the view I have got at the moment is no. But if you can convince me otherwise. There are Full Bench decisions which say that the requirements of section 170LK are mandatory and each and every one of them must be met.

PN31

MS STREET: If that is the case, your Honour, then we would request - or clarified from you - that the steps that would need to be taken in order to make the agreement valid for certification - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. I am just looking at section 170LK(2). It says:

PN33

The employer must take reasonable steps to ensure that every person employed at the time ...(reads)... must not be made before those 14 days have passed.

PN34

I don't want to get into a technical decision on analysing stages. It turns on what the agreement is and if the agreement has been varied to make the agreement. It doesn't say to make an agreement, it says "the agreement". I would have thought to the extent that the agreement was varied, it is not the agreement that was originally voted on, not the agreement that was set out in the original written notice of intent to make the agreement, and therefore in accordance with section 170LK(8) that step two must be - it says "must again be taken in relation to the prosed agreement as varied." I think it's very clear.

PN35

I understand all the arguments you are saying on practicability, I also understand the Full Bench authorities on LK, being mandatory and each one of them must be met.

PN36

MS STREET: I understand that, your Honour. Would your Honour have any guidance as to what the additional or new notice of intention should contain? Would it need to be re-dated on the date of issue?

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. It would have to be because that would be the date on which the employees are told of the varied agreement and then there is the requirement of 14 days to give them consideration before the matter can be processed.

PN38

MS STREET: Would your Honour suggest then that this agreement would therefore have to go through the reissuing of another notice of intention and consequently a re-vote - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Yes.

PN40

MS STREET: - - - for it to be certifiable?

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. No, I am happy for you to convince me otherwise and then I will write a decision about it. But given you have asked me, I am telling you that on the basis of what is before me, that is my view. If that will assist. But if you want to put submissions and try and satisfy me otherwise, obviously I will weigh that up and issue a decision.

PN42

MS STREET: If I can put submissions forward, your Honour, I realise that I don't have particularly persuasive authorities with me, but if I could say that - - -

PN43

THE SENIOR DEPUTY PRESIDENT: I guess if I am going to write a formal decision about this I would like you to consider some of the authorities that go in the other direction, which I haven't got here but of which I could notify you if it would be of assistance.

PN44

MS STREET: Yes. Would that be on a later date?

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MS STREET: Yes, if it would be appropriate to - - -

PN47

THE SENIOR DEPUTY PRESIDENT: If this is going to be subject to a formal published decision, then certainly I think it's important if you are aware of the authorities on this issue.

PN48

MS STREET: I understand, your Honour. In that case - - -

PN49

THE SENIOR DEPUTY PRESIDENT: That might take more time than reissuing the notice. But if that's what you want to argue I am just saying of course you have got that right to argue it.

PN50

MS STREET: If I can just consult with the employer. Yes, I have been instructed, your Honour, that presented formal submissions for certification is not the selected path. The company is prepared to reissue a notice of intention and consequently put the agreement to a re-vote to the employees.

PN51

THE SENIOR DEPUTY PRESIDENT: That might be the more pragmatic path.

PN52

MS STREET: I think so, your Honour, yes.

PN53

THE SENIOR DEPUTY PRESIDENT: But certainly, I could assist you with some authorities if you wanted to go the other path just so that we have got the full range of authorities on which for me to form a view.

PN54

MS STREET: I think in this case, your Honour, that - - -

PN55

THE SENIOR DEPUTY PRESIDENT: Will adjourn the matter then until you have reached the agreement?

PN56

MS STREET: After the re-vote, yes, that would probably be the appropriate thing to do. If I can just consult with the company. Yes, your Honour, that would be appropriate. Can I just confirm with you that the company would need to re-supply the reissued notice of intention, the amended agreement. Would your Honour require a new series of statutory declarations in supporting that application?

PN57

THE SENIOR DEPUTY PRESIDENT: I would be prepared to waive the rules with respect to that.

PN58

MS STREET: Thank you, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: That doesn't change in any way. Sorry, I am thinking aloud, I don't want to make an error.

PN60

MS STREET: I can envisage, your Honour, that there will be some amendments necessary to the statutory declarations anyway.

PN61

THE SENIOR DEPUTY PRESIDENT: That's what I was going through as I was thinking through it. For completeness it might be better if you did refile the statutory declaration.

PN62

MS STREET: That won't be a problem, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Can I also raise with you the question of the wage schedule while you are here, and that is I was going to ask you - to avoid any complication down the path - that has been forwarded to me and I need to be satisfied that there is an understanding by the employees who are voting, that these are the applicable wage rates for section 170LT(2) and that they will be observed together with the rates of increases identified in the agreement for the life of the agreement, so that I can be satisfied that the agreement was generally approved and that the no disadvantage test is met. Then the copy of the wages schedule has been or will be made available to employees so that they know what they are voting on.

PN64

MS STREET: Yes.

PN65

THE SENIOR DEPUTY PRESIDENT: That may well have happened, but it's very hard to reach satisfaction with respect to the test if there's only wage increases identified and that's all that the employees were aware of. If they were aware of their actual wage rates that undertaking would satisfy me with respect to that test.

PN66

MS STREET: Yes, your Honour, I believe that the schedule of wage rates was not to form part of the agreement for confidentiality reasons. It is my understanding, and perhaps Mr Trevor Walton can confirm that they were aware of the scheduled rates.

PN67

THE SENIOR DEPUTY PRESIDENT: The schedule of wage rates, when we deal with the matter again it would be appropriate to put the schedule on a confidential envelope because otherwise there is access to the file if anyone wants to look at it even though they are not in the agreement. Would that meet the confidentiality aspect?

PN68

MS STREET: If that's appropriate, your Honour. I believe that the company just doesn't want the rates published or publicly made available on record.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MS STREET: But certainly if it's for the sake of your file then that would be appropriate.

PN71

THE SENIOR DEPUTY PRESIDENT: Will I relist the matter at short notice? I will give that undertaking as soon as I get the amended documentation.

PN72

MS STREET: I believe that the company would have to reissue the notice delaying the process by 14 clear days. So perhaps in four weeks time we could have the matter relisted.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. As soon as we get the documentation I will list it at as short a notice as I can manage. You can rely on the submissions made today in so far as they're relevant to the new proceedings.

PN74

MS STREET: Would your Honour require me to go into other details about the agreement that would remain unchanged or would that be more appropriate for when it's relisted?

PN75

THE SENIOR DEPUTY PRESIDENT: I think that might be more appropriate for when it's relisted. But I just want to raise with you anything that may need clarification to avoid any other delays when the matter comes before me again. But I think you have satisfied me with respect to the wage raise, the schedule. But if there's anything else you wish to put today please do it.

PN76

THE SENIOR DEPUTY PRESIDENT: We would only submit that we believe that the agreement does pertain to the employment relationship in accordance with section 170LI of the Act.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, I didn't have any problems that I could foresee with respect to that either. At least on current authority.

PN78

MS STREET: There will be nothing else really to add at this point, your Honour. The other statements I have in relation to the agreement, dispute settlement procedure, could probably wait until the agreement is relisted.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, and then we know it's been voted on and it's appropriate to put those submissions. I apologise for the inconvenience, but it is really the interpretation of the Act that I think just has to be adhered to, to ensure there is a properly made application in front of me. That will avoid potential problems down the track. So I will commit to putting the matter on as soon as the paperwork is filed and if you could indicate on the paperwork that it's a matter that I've been dealing with.

PN80

MS STREET: That would be appropriate, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Thank you very much for your attending. If there is nothing else.

PN82

MS STREET: I do have a request, your Honour. Given that the company and the employee has come down from Newcastle, would it at all be possible for when the matter is next relisted, that a teleconference be organised?

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. Yes, we have been doing some of them for Newcastle, which does make it easier for the companies and the employees. Yes, if you put that on the documentation we will organise a teleconference at a convenient time to everybody, certainly. If you require that in the future just let us know in advance because it is a long way to come for a matter such as this, although it's important to the workplace. But we can achieve the outcome through better means sometimes in terms of modern equipment. Yes, certainly.

PN84

MS STREET: Thank you, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Anything else?

PN86

MS STREET: No, I don't believe so, your Honour, that's it, yes.

PN87

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Street. The matter is adjourned.

ADJOURNED INDEFINITELY [10.40am]