AG2004/4610, Transcript of Proceedings [2004] AIRCTrans 4110 (22 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2319
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4610

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Schefenacker Vision Systems Pty Limited
and Others for certification of the Schefenacker
Vision Systems Australia Pty Ltd, AWU, AMWU
Certified Agreement 2004

ADELAIDE

10.04 AM, WEDNESDAY, 13 OCTOBER 2004

Continued from 22.9.04

PN122

THE SENIOR DEPUTY PRESIDENT: Good morning. I note there are some changes in appearances, so I will take appearances again, please.

PN123

MR D. METCALF: I appear for the company, and appearing with me is MR A. MARKIEWICZ, and MR R. STOVALL.

PN124

MR J. HANSON: I appear for the Australian Workers' Union, and appearing with me is MR J. KANE.

PN125

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hanson. Mr Hanson, I understand that Mr Llewellyn Jones may be attending these proceedings a little later? Is that the case?

PN126

MR HANSON: Probably not, Commissioner. The problem is, that Mr Llewellyn Jones got called into a Federal Court matter as of an about an hour to go before end of proceedings last night. He attended that matter this morning, and they have given an adjournment of that matter until quarter past two this afternoon. As a result, it is very doubtful he will be attending today, and I would suggest we will probably be relying on the written submissions provided to the Commission.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN128

MS REGIONE: I appear for the Australian Manufacturing Workers' Union, and appearing with me is MR M. EMMERSON, our organiser.

PN129

THE SENIOR DEPUTY PRESIDENT: The matter has been listed today, fundamentally to follow up on an earlier hearing on 22 September. On that occasion I raised questions about the agreement that fell into two broad categories. They were a series of questions that went to issues of clarification, relative to the application for certification, and there are also a series of questions that I put to the parties as a direct consequence of the High Court decision in Electrolux. The parties requested the opportunity to ponder upon those issues, and indicated a desire to put written submission. I have, since that time, received, I think are submissions from you, Mr Metcalf. I have received that by way of an email advice dated 11 October 2004.

EXHIBIT #S2 SUBMISSIONS BY MR METCALF DATED 11/10/2004

PN130

THE SENIOR DEPUTY PRESIDENT: I have received advice from the AWU, being an outline of argument, and again I received that on 11 October.

EXHIBIT #AWU1 OUTLINE OF ARGUMENT FROM AWU DATED 11/10/2004

PN131

THE SENIOR DEPUTY PRESIDENT: I have received from the AMWU, an extremely comprehensive outline of - or a set of written submissions, also on 11 October.

EXHIBIT #AMWU1 SET OF WRITTEN SUBMISSIONS FROM AMWU DATED 11/10/2004

PN132

THE SENIOR DEPUTY PRESIDENT: The purpose of today's hearing then, is really simply to give the parties an opportunity to comment on the written material which I understand has now been exchanged, and to say anything further they wish to say to me about the matters that pertain to the Electrolux decision. Mr Metcalf, do you want to start the ball rolling in that regard?

PN133

MR METCALF: Yes, sir. In terms of our response, Senior Deputy President, it seems to be along the same lines, and basically we have only just received the AWU submissions, so it has been fairly hard to comment on the other areas. In terms of our response, we were looking at the salary sacrifice provision in clause 26, and the fact that that did relate to the remuneration, and it seems that the responses provided by the AWU and the AMWU, are along the same lines as ours. In respect to those other clauses, where those questions were raised, as I've put in the email, we will rely on the Commissioner's decisions in terms of whether they apply in terms of pertaining to the employment relationship.

PN134

THE SENIOR DEPUTY PRESIDENT: That is entirely a matter for your election, Mr Metcalf.

PN135

MR METCALF: Yes, sir.

PN136

THE SENIOR DEPUTY PRESIDENT: Can I take it that the employer then effectively has no view on the submissions put by the both the AWU, and particularly by the AMWU?

PN137

MR METCALF: As I saw, we have only had limited time to review the AWUs submissions, so we can't really comment on that. In terms of the AMWUs response, I would seek some advice. We won't comment on that either. Thank you, sir.

PN138

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Metcalf, looking at my file here, I may have been in error. I called the document you sent to me on 11 October, S1. I think I perhaps should have called that S2. S1 was the private and confidential advice provided to me by a firm of solicitors acting for your organisation. So I will re-name that 11 October document as S2. Mr Hanson, I'm happy to ask you to comment last of all, if you wish, just in case Mr Llewellyn Jones did appear? Would you prefer that I do that?

PN139

MR HANSON: Perhaps, Commissioner. Yes, sir.

PN140

THE SENIOR DEPUTY PRESIDENT: Ms Regione, is there anything you want to say relative to either the document I have marked as AMWU1, and/or the position put by the employer and the AMWU?

PN141

MS REGIONE: Yes. Thank you, sir.

PN142

THE SENIOR DEPUTY PRESIDENT: I'm in your hands. There is no rush. Get your papers organised. I think Mr Emmerson may have buried some there.

PN143

MS REGIONE: Sir, the issue that the Commission has raised in these proceedings is whether or not the agreement presented for certification today contains any discreet or substantive terms which do not pertain to the relationship between the employer and the employees. In summary, our submission is that this agreement is an agreement within the meaning of section 170LI, that is, that it is an agreement about matters pertaining to the relationship between an employer and all persons who are employed in the employer's business, and that each term of the agreement pertains to the requisite relationship, or is incidental or ancillary to provisions that do pertain, or is a machinery provision.

PN144

For example, things like indexes and so on. It is our submission that the Commission has jurisdiction and can certify this agreement, and we rely on the High Court decisions in Electrolux and the other High Court decisions which we have named in our written submissions. The first issue raised by the Commission was whether the Commission can certify an agreement after excising a clause, and our written submissions set out two reasons why we believe this will not be possible.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes. I think there might be some confusion in that regard. The question that I raised in that respect, fundamentally went to the proposition that if the parties were to propose to me that I could excise a provision, could they please tell me upon which section of the Act I would rely to do that?

PN146

MS REGIONE: It is our submission that it is not possible - - -

PN147

THE SENIOR DEPUTY PRESIDENT: I do not find myself an advocate for the excising of components of an agreement.

PN148

MS REGIONE: Right. Yes. It is our submission of course, that the members, having voted on the document, if there were any change to that document, it would have to go back for their approval, prior to being certified by the Commission. But it is also our submission that there is, in fact, no necessity in any case for any excision of any of the provisions of this particular agreement. The sub-clause 8.2, which in the agreement put before the Commission pertains to renegotiation of the agreement, and the subject matter of the certified agreement must pertain to the employment relationship by definition.

PN149

If the Commission sees fit to certify it, then the substance must pertain to the employment relationship, and when an agreement is registered it continues in force until replaced by another agreement, which must also pertain to the employment relationship, and sub-clause 8.2 is a machinery provision relating to the agreement, or is incidental and ancillary to matters pertaining to the employment relationship. On sub-clause 16.2: Introduction of change. The matters encompassed in this sub-clause directly pertain to the employment relationship, and in addition to the authority cited in our written submissions, we refer the Commission to the High Court decision in the Federated Clerks' Union v Victorian Employers' Federation [1984] HCA 53; 1984, 154 CLR 472.

PN150

THE SENIOR DEPUTY PRESIDENT: I'm sorry. 1984?

PN151

MS REGIONE: [1984] HCA 53; 154 CLR 472, which held that the requirement to consult with a union over the introduction of technological change and the implementation of redundancies was a matter affecting the relations of employers and employees. On clause 17, labour hire agencies, our written submission would cite a number of authorities to support the proposition that this provision directly pertains to the employment wages and conditions of union members, and therefore to the employment relationship. We note that the AWUs submission refers to Cocks case, and we submit that the claim in Cocks case is readily distinguishable from the provisions sought at clause 17 of the Schefenacker agreement. The claim in Cocks case, was that no work was to be given to outside contractors.

PN152

We are purported to prohibit the engagement of contractors per se. Clause 17 in the Schefenacker agreement, in contrast, is an enabling provision. It sets out processes agreed by the parties for regulating the engagement of labour hire employees. It is designed to provide some flexibility to the employer to meet peaks and troughs, while minimising the potential for industrial disputation and providing some protection of the employment opportunities for union members. We submit that the decision in Cocks case must be confined to its facts, which are quite different to those in the matter before you today. In respect to clause 26 - - -

PN153

THE SENIOR DEPUTY PRESIDENT: Now, before you leave clause 17. I do have a question that arises from the information you have given me, together with the document that I have marked AMWU1. I am conscious that obviously a great deal of work went into AMWU1, and as an aside, you might want to congratulate Mr Kentish, if he was the sole author of the document, for a submission that I consider was extraordinarily well put together. But it seems to me that looking at clause 17, the provisions of clauses 17.1.2.3.4.5, may well be described as facilitative or guiding arrangements that go to how it is that Schefenacker will deal with labour hire arrangements.

PN154

I must say, I'm having a little difficulty putting clause 17.6 in that same category. 17.6 appears to, if I understand it correctly, in effect, require Schefenacker to instruct the labour hire agencies with whom it presumably contracts, to comply with wage increases set out in this agreement, and I wonder whether you are in a position to tell me how you see that particular requirement as pertaining to the employment relationship, as distinct from some of the other aspects of clause 17?

PN155

MS REGIONE: Yes, sir. We rely on R v Moore for that particular sub-clause, and that sub-clause deals with the terms and conditions upon which the employees of the contractors are engaged, and that is a matter directly pertinent to the relevant employment relationship. In particular, that previous decision we refer to, found that the union had an interest in protecting the wages and conditions and employment opportunities of its members. I believe that was the decision of the High Court, and as such, this pertained.

PN156

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN157

MS REGIONE: Sir, clause 26 of the proposed agreement relates to salary sacrifice. It pertains, as representatives for the employer have stated, to the remuneration received by employees and pertains directly to the employment relationship, and it is clearly distinguishable from the decisions relating to the debtor-creditor relationship. Clause 38: Shop steward training leave. We rely on the Full Bench decision in the Bundaberg Harbour Board case, which found that all leave pertains to the employment relationship, regardless of the purpose for which the leave is granted. So that carer's leave and, I presume, jury service leave, any particular type of leave at all. It is the fact that it is leave from the employment which makes it pertaining to the employment relationship, not the purpose for which it is applied for.

PN158

Clause 43: Payroll deductions. We note, and this is in our written submissions, I think, that in the High Court's decision in Electrolux, his Honour, McHugh J, quoted from the Commission's Full Bench decision in Atlas Steels, and submit that the same principles apply in respect to clause 43. In respect to clause 46: Union officials and shop stewards. In the Electrolux High Court decision, the High Court upheld Merkel J decision, that these types of provisions pertain to the employment relationship, or are incidental or ancillary to, or are necessary machinery provisions. So in that matter, we rely on the Electrolux decision. Furthermore, we put to the Commission, the intention of the Act.

PN159

It was the clear intention of parliament that the Workplace Relations Act should encourage employers and employees to negotiate agreements at the enterprise level, under-pinned by a safety net of award conditions. Schefenacker and its employees have reached such an agreement, and this is clear from the company's submissions. So we say there are no legal impediments to certification of this agreement. It meets the requirements of the Act, and we request that the Commission certify this agreement without further delay, in accordance with the spirit of the Act. Thank you, sir.

PN160

THE SENIOR DEPUTY PRESIDENT: Ms Regione, is there anything you want to say to me about the AWU position? I simply want to extend that opportunity to you, that is all.

PN161

MS REGIONE: Yes. No, we - - -

PN162

THE SENIOR DEPUTY PRESIDENT: Don't feel obligated.

PN163

MS REGIONE: We support the arguments that the AWU has put forward, but I know that, as you commented previously, Alistair Kentish from our national office has the main carriage of this issue, and I know that he hasn't had an opportunity yet to see the AWU submission, and it was faxed to me yesterday afternoon. So if I could reserve our position on that. It looked to me as though we would agree with what they are saying, but Alistair is really the expert in this matter. Thank you.

PN164

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Hanson, is there anything you want to say in this matter?

PN165

MR HANSON: Thank you, Commissioner. Obviously there is a limited amount that I personally can say with regards to our submission, having not done a great deal of work on it myself, and with Mr Llewellyn Jones otherwise occupied today, obviously. I think his instructions to me were to largely rely on the written submissions provided to the Commission and provided to both parties in this matter, and I think, on that advice, it is probably the best thing for me to do.

PN166

THE SENIOR DEPUTY PRESIDENT: Mr Hanson, I don't want to put you on the spot, but there is one particular issue where I need some clarification. Can I take you to paragraph 23 in that submission? Sorry, to paragraph 24. This relates to clause 43, and the paragraph simply reads:

PN167

This clause cannot be included into an enterprise bargaining agreement.

PN168

Now, the question that I have in that regard is, given the overall direction of the AWUs submissions I'm not at all sure whether that was what the author of the document intended to say, because if it was what was intended, then it would follow that the AWU is saying that the agreement ought not be certified. What I would suggest to you is that if you are not able to answer that question now, I am prepared to give an opportunity, which I will detail in a moment, for that issue to be clarified.

PN169

MR HANSON: Yes, Commissioner, that certainly seems something that perhaps Mr Llewellyn-Jones did not intend. Also after having looked at the AMWUs submissions which, as you stated, are quite comprehensive in their discussion of the various points and I note in particular, they bring up decisions in regards to the payroll deductions in their submission that Mr Llewellyn-Jones hasn't got in his submission. Perhaps it is best that we seek some further advice on that and provide further submissions in regards to that matter for you at some later date.

PN170

THE SENIOR DEPUTY PRESIDENT: The other comment I will make is that - with particular reference to clause 13 of the submissions, if Mr Llewellyn-Jones has the same dictionary that I have then I can indicate to you now that I will not be proposing to refer to the "redolence of managerial prerogative" in any decision that I might make. What I propose to the parties in this respect is that I intend to reserve my decision on the matter. I think that would probably come as little surprise given that this is one of the relatively early agreements which will require consideration of the extent to which the agreement provisions pertain to the employment relationship.

PN171

The matter will need to get in somewhat of a queue in my decision writing priority. I think it comes in at number four at the moment so on that basis, the parties might expect a delay in a decision of somewhere between 1 and 2 weeks. As a consequence, I consider that it would be appropriate and that it would not unnecessarily delay consideration of the matter if I gave the parties until the end of this week, that is, until Friday, 15 October, to provide any further written submissions in response to the submissions that have already been provided. In that respect, I would ask the parties to note that there may in fact, be a typographical error in the AWUs submissions relative to paragraph 24 of those submissions.

PN172

Those written submissions, if indeed, the parties choose to make any further submissions, will need to be provided to both the Commission and to each of the other parties. That means that by the time I come to look at the specifics of this particular matter, the parties will have had the opportunity, if they choose to do so, to respond to the various written advice and indeed, the oral submissions that have been provided by Ms Regione. Does any party have a problem with that approach? Very well, I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [10.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S2 SUBMISSIONS BY MR METCALF DATED 11/10/2004 PN130
EXHIBIT #AWU1 OUTLINE OF ARGUMENT FROM AWU DATED 11/10/2004 PN131
EXHIBIT #AMWU1 SET OF WRITTEN SUBMISSIONS FROM AMWU DATED 11/10/2004 PN132