AG2004/7345, Transcript of Proceedings [2004] AIRCTrans 4256 (3 November 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 978
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2004/7345

APPLICATION FOR CERTIFICATION
OF GREENFIELDS AGREEMENT

Application under section 170LL of the Act
by CBI Constructors Pty Ltd and Another for
certification of the Pinjarra Efficiency
Upgrade Project, CBI Constructors Pty Ltd and
AFMEPKIU Certified Agreement 2004

PERTH

11.04 AM, MONDAY, 25 OCTOBER 2004

PN1

MR D. PARKER: Employer Applicant in relation to this agreement, CBI Constructors Pty Ltd.

PN2

MR L. EDMONDS: Australian Manufacturers Union, sir.

PN3

THE DEPUTY PRESIDENT: No objection to - - -

PN4

MR EDMONDS: No, sir.

PN5

THE DEPUTY PRESIDENT: Mr Parker?

PN6

MR PARKER: Thank you, sir. I have had some discussions with my friend prior to the hearing and I am also in receipt of the Certification Report issued by the Commission, and as I understand it today, sir, there were two clauses in particular that were of some concern to the Commission. Given the nature of the clauses in discussion with my friend, it was thought appropriate that he perhaps address the Commission first in relation to those matters.

PN7

THE DEPUTY PRESIDENT: Yes. There is another item and I do not know whether I identified it, it appears to be okay and that is clause 29. You may wish to, if you are in a position to address me on that clause as well. Sorry, I did not identify that in the report I sent.

PN8

MR PARKER: Yes, sir. I may be in a position to take that to a certain point and perhaps if you still have queries about that then I might need to seek some further instructions on that point but perhaps, sir, if we deal with the other two matters first if I can suggest that, thank you.

PN9

THE DEPUTY PRESIDENT: Well, perhaps if I just mention to you, it would appear - with respect to clause 29 - it would appear that that clause does not provide any new rights as such but is more a provision that identify how the right that exists pursuant to the Act is to be exercised and the conditions associated with the exercising of that right. If that is what it does then I do not have any difficulty with it but if it does more than that then I may require some submissions on it.

PN10

MR PARKER: Yes, sir. I think certainly the crux of that clause is to make it plain what is agreed about the way in which rights of entry that are provided for under the Federal Act will be exercised so I think that is correct, sir, but perhaps if I can take a moment to think about whether there is anything further that I may need to address you on.

PN11

THE DEPUTY PRESIDENT: Yes. Mr Edmonds, you wish to say something?

PN12

MR EDMONDS: Yes sir, thank you, sir. If I could just briefly first address you on the certification of the agreement itself, sir. This is an agreement that provides for an agreement that covers work at the Pinjarra Efficiency Upgrade Project, sir. The agreement itself, sir, complies with the provision of Section 170LT of the Act in that it passes no disadvantage test, it provides for a dispute settlement procedure and a number of expiry date is specified in the agreement and the dispute settlement procedure, sir, is provided for at clause 15 of the agreement itself, sir. It is our submission, sir, that the clauses themselves - all clauses of the agreement do relate to the requisite relationship between the employers and the employees, and in particular, sir, if I can address you on clauses 16 of 6, clause 31 and clause 29. Perhaps if I can deal with clause 29 in the first instance, sir, which is the clause you have just raised. Clause 29 sir, essentially as you have observed doesn't grant any other rights, other than to prescribe a process whereby those particular rights will be exercised or prescribed a mechanism I suppose for right of entry to be exercised on the site itself.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MR EDMONDS: I would say, sir, in particular that right of entry is pertinent to the relationship, we also say that right of entry provisions are ancillary and machinery to the agreement itself, sir, in that it provides a mechanism whereby the union itself can participate under the terms of the agreement, certainly with respect to the dispute settlement procedure and its obligations under that particular procedure but also its obligations under the agreement itself, sir to ensure that the agreement itself is complied with. So that we would say that clause 29 certainly relates to the relationship and/or is ancillary and machinery to the agreement itself and ancillary and machinery to compliance with the agreement.

PN15

THE DEPUTY PRESIDENT: 293(a) makes it quite explicit that it is only exercisable in accordance with the Work Place Relation Act.

PN16

MR EDMONDS: Precisely, sir, so it does not confer any additional rights or any additional benefits and it certainly does not stray into the areas that perhaps some other agreements have strayed into which are to refer to issues like the parallel deductional those sort of things which would be - - -

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR EDMONDS: Additional benefits, not that we can see that parallel deductional does not relate to the relationships, sir, but just to say sir that those things are perhaps a bit more cloudy and this agreement certainly does not stray into any of those areas.

PN19

THE DEPUTY PRESIDENT: Most unlikely you can see anything with respect to agreements that had been made other than that they should be certified.

PN20

MR EDMONDS: Yes, sir, certainly sir. With respect to clause 31, sir, if we just say that this clause relates to the appointment of union delegates or shop stewarts under the terms of this agreement. As you will see, sir, under this agreement shop stewards or the union delegates have a role under this particular agreement. If I could refer you to this decision of Ross VP in National Union of Workers and K.L. Ballantyne, sir, the Laverton Site Agreement 2004, Vice President Ross talks about the role of shop stewards under the terms of this particular agreement sir and finds that it does relate to the employer, employee. A relationship insofar as it deals with issues whereby certain - it deals with issues whereby shop stewards or the union delegates have an obligation under the agreement or have a function to perform under the agreement itself, to ensure that that particular agreement is complied with.

PN21

So where it would say that that does pertain further relationships and we would also note that the original decision of Merkel J in the Electrolux decision did deal with the issue of shop stewards and their access to facilities in order to ensure they can comply with their duties under the agreement, sir, and he found that certainly access to telephone, facsimile and a lockable cabinet were things that were ancillary and machinery to the agreement itself.

PN22

THE DEPUTY PRESIDENT: Yes, there are two elements for the shop stewards clause as I see, it Mr Edmonds, one is the element that you have just referred to, the other is the specific element of a right to trade union training leave which you are probably just coming to but I note the decision of Vice President Ross in that regard in that leave regardless of the nature of the purpose of it, does pertain.

PN23

MR EDMONDS: Yes sir, essentially sir, that is how our submission is that essentially leave is leave and whether it is for trade union training or whether it is for annual leave, sick leave or bereavement leave or adoption leave because certainly having a child or having a relative die is not something that pertains to the relationship either, sir, but we would say the concept of leave itself, the concept of being paid for not attending work is something that does pertain to the employer employee relationship sir. So we would essentially say the decision in Ballantyne but it was also dealt with by SDP Lacey in the decision Transfield Worley and the Woodside project, sir, that essentially dealt with that with the issue of trade in and training leave as well. We would essentially say the simple explanation is leave is leave and the purpose of that leave is not important for the purposes of certifying the agreement.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR EDMONDS: If I could turn, finally sir, clause 16.6 of the proposed Certified Agreement, sir, 16.6 sir says that:

PN26

where work clothing is pursuant to this clause

PN27

and it talks about clause 16 there sir:

PN28

the employer should endeavour to ensure the clothing is of Australian manufacture.

PN29

We would say, sir, in the first instance that clause 16 itself is something that pertains to the relationship itself. Clause 16 talks about the supplying of protective clothing and equipment and footwear and we would say that obviously complies with the Act, sir, in that it does pertain to the requisite relationship but we would say clause 16.6 essentially does not create a legal obligation other than to say that the employee should endeavour to ensure the clothing is locally made, sir, and we would say that pertains to the relationship in that it ensures, I suppose, that the clothing that is supplied is of a certain standard for the employees concerned. And we would say that the standard of the clothing that is issued is something that does pertains to the relationship, so essentially, sir, we would say that the provision of clothing itself and the description of that clothing is something that does pertain to the relationship. So sir, we would say that clause 16.6 is merely part of that clause it does not create any additional obligations or anything like that.

PN30

THE DEPUTY PRESIDENT: Yes, it might, Mr Edmonds, fall within the sorts of provisions that may come with in the scope of paragraph 48 of VP Ross's decision, namely that it is provisions aspirational in nature rather than giving rise to rights and obligations on that basis not preclude the agreement being certified, that would seem to fit within that sort of description.

PN31

MR EDMONDS: Yes, sir, that is on the alternative reading of that clause but we would say on either reading it does not offend the Act, sir.

PN32

THE DEPUTY PRESIDENT: Yes.

PN33

MR EDMONDS: And as such it should be certified. Unless there is other further questions, sir, that is all I have got to say.

PN34

THE DEPUTY PRESIDENT: No, thank you, Mr Edmonds.

PN35

MR EDMONDS: Thank you, sir.

PN36

THE DEPUTY PRESIDENT: Yes Mr Parker.

PN37

MR PARKER: Sir, can I support the submission of my friend that the clauses that you have asked about in particular are clauses about matters that pertain to the employment relationship, if I can use that shorthand. Sir, can I just reinforce in relation to shop stewards and the clause 31 that deals with shop stewards. By way of demonstration as to the important role of shop stewards in relation to the employment relationship it is plain under the agreement that shop stewards have a role under dispute settlement procedure and indeed the following of the dispute settlement procedure is one part of, and is relevant to the payment of the project completion payment which is identified in clause 5.3(d).

PN38

So there is clearly an identified role for shop stewards in a way that is very relevant both to the operation of the agreement and the employment of employees more generally and, sir, what I would say in relation to the specifics of clause 31 is that in relation to access facilities to facilities these provisions are merely incidental or ancillary and if they are not that, then they are really provisions that provide some machinery for shop stewards to be able to carry out their role, which is as I have already identified an important role in the context of this agreement and, sir, yes there have been a number of other authorities in which this particular type of clause has not troubled both the court and the Commission.

PN39

Sir, in relation to the training leave, sir, I do not know if I have much to add other than what I have already said about the connection between the role of the shop stewards and other provisions under the agreement which are directly relevant to the employment of employees covered by the agreement and certainly on my instructions from the employer's perspective training which goes to improving the skills of the shop stewards in dealing with those matters particularly under the dispute settlement procedure, is very relevant to the operation of the agreement and the employment of the employees covered by the agreement.

PN40

Sir, in relation to the protective clothing, sir, I would certainly endorse Mr Edmonds' submission about the fact that the clause in general is plainly about a matter that pertains to the employment relationship, in that it relates to the provision of protective clothing and equipment and that provisions within a clause such as that, which deal with matters that go to the quality, perhaps the comfort and perhaps even the style, sir, albeit a minor matter, is still a matter that is relevant to the equipment that is being provided to the employees by the employer and which is relevant to meeting obligations under Occupational Health and Safety legislation. Sir, from that point of view I would submit that that is a matter - sorry, that is a provision about a matter that pertains to the employment relationship but, sir, even if you are not convinced that it is, in the sense that I have already described, is merely a matter that is incidental or ancillary to the provision of the clothing that is referred to.

PN41

But, sir, as you have quite rightly pointed out, perhaps relevant to this clause which is not relevant to perhaps some other sorts of clauses is the fact that it does not really create legal obligations on either side and it very much looks like an aspirational clause which as you note at paragraph 48 of Vice President Ross's decision in the Ballantyne case, he notes that that is probably a further category of provision, for want of a better term, in a Certified Agreement that should not trouble the Commission in relation to the requirements of section 170LI.

PN42

PN43

Sir, turning to right of entry and, as I say, I hadn't necessarily anticipated that that is a clause that might cause you some trouble so, sir, if you are still against us on that, I might seek to further persuade you, based on some further preparation. But, sir, I think firstly, the point that you've already made in relation to the wording of the clause is relevant and that is, that plainly it is talking about making sure that, or reinforcing if you like, sir, that there are rights of entry provided under the Workplace Relations Act and that the parties agreed on how those rights of entry are to be exercised.

PN44

But, sir, I think I'm obliged to say that Clause 29.3(b) probably does go further than the strict rights of entry identified under the Workplace Relations Act in the sense that it's dealing with a right of entry to investigate a suspected breach of the Mine Safety Inspection Act WA. Sir, that's a provision that recognises that there still may well be an issue about whether there are any State rights of entry in respect of a site that's covered by an agreement such as this with a provision such as this. But it's recognised that an issue such as safety, which is directly relevant to the employees on site, is an issue which may activate a dispute under the dispute settlement procedure or it may in fact be of concern to employees, and it's appropriate to recognise a right of entry in relation to that particular matter, provided it's exercised in accordance with the provisions of the Workplace Relations Act which relate to the investigation breaches.

PN45

Sir, I'd still say that that should not cause you concern in relation to whether or not union rights of entry are provisions that fall foul of the 170 LI requirements and, indeed, right of entry was one of the matters dealt with by Vice President Ross in the Ballantyne case. Sir, it does appear that his Honour was prepared to conclude that clause 45 of that particular agreement which related to right of entry, was incidental or ancillary to matters pertaining to the employment relationship and in particular, it related to maintaining the settlement reflected in the agreement and hence the making of the substantive provisions and making those effective. Sir, that's not the only decision in relation to right of entry and, indeed, his Honour goes at some length within his reasons to refer to the various authorities that are relevant to rights of entry, being matters that pertain to the employment relationship.

PN46

THE DEPUTY PRESIDENT: Depends very much on the wording of the clause, but I would think Mr - - -

PN47

MR PARKER: Sir, I think that's correct and there's no doubt you will need to turn your mind to the particular wording of these clauses, that's certainly relevant to what I've submitted in relation to the clothing clause, the protective clothing clause, sir. It's certainly relevant to the shop steward's clause and, indeed, that particular clause does not include some of the clauses that have fallen foul of these provisions previously, such as something to do with union membership or the like, which indeed seemed to be a problem in the Ballantyne case but, sir, I wouldn't have thought that there's anything in the wording in the right of entry clause that takes this particular clause 29 any further than the matters that have been dealt with in the authorities and in particular, in the collection of authorities that is the one Vice President Ross refers to in the Ballantyne decision.

PN48

THE DEPUTY PRESIDENT: Just one question with the issue you raised with respect to 29.3(b). Is there a right of entry for investigation of suspected breaches of the Mine Safety and Inspection Act? Are you aware, Mr Parker?

PN49

MR PARKER: Is there a provision under the Federal Act?

PN50

THE DEPUTY PRESIDENT: Yes.

PN51

MR PARKER: Under the Workplace Relations Act?

PN52

THE DEPUTY PRESIDENT: No, no, under the Mine Safety and Inspection Act 1994.

PN53

MR PARKER: Sir, I'm not aware of that, sir, no. Clearly, there is such a provision under the State Industrial Relations Act.

PN54

THE DEPUTY PRESIDENT: Yes.

PN55

MR PARKER: Which allows State Union Officials to investigate suspected breaches of that particular legislation, but I'm not aware of whether there's an equivalent provision under the Act itself.

PN56

THE DEPUTY PRESIDENT: But in any event, that right to enter is conditioned on two things in the agreement. One, that it's a suspected breach of the Act; and two, it's in accordance with the Workplace Relations Act.

PN57

MR PARKER: Yes, sir.

PN58

THE DEPUTY PRESIDENT: Including 29.2, that it's accredited officials that hold a permit. There's three, I suppose, and that is that it's in accordance with the agreement.

PN59

MR PARKER: Sir, absolutely in relation to 29.2, it's an important matter that these are accredited officials of the union part of this agreement who hold a permit under the Federal Act.

PN60

THE DEPUTY PRESIDENT: Yes. Just a moment, Mr Parker.

PN61

MR PARKER: Yes, sir.

PN62

THE DEPUTY PRESIDENT: Yes, thank you, Mr Parker. Anything further you wish to add, Mr Edmonds, arising out of that?

PN63

MR EDMONDS: No, sir, not at this stage, no.

PN64

THE DEPUTY PRESIDENT: Yes. I will reserve my decision on certification, that's not to be taken as an indication that the agreement will not be certified. There's only one issue I wish to have a closer look at, that is the provisions of clause 29.3(b), that is the right of entry provisions. Should I consider that there's any difficulty with that, I will provide you both with further opportunities to address me on it before I form a concluded view. I do not think there's a problem with it, but I just want to have a reflection on it. As far as the other provisions that have been raised, I don't consider that there is anything that does not pertain to the relationship or fall within the confines of section 170LI such as the agreement does not pertain to the required relationship or is ancillary, incidental or machinerarily related to the requisite provisions and with respect to the Australian made provisions, in any event, I consider that the provision is so insignificant as to not cause a barrier to the certification of the agreement.

PN65

In all other respects, the agreement has met the requirements of the legislation and of - in both respect of the agreement having been properly made, the application having been properly made, and the content of it not contrary to any of the provisions of the Act. So my inclination is to certify it, I just want to reflect on that one item before I do. Mr Edmonds, and I think it may also involve you Mr Parker, but there are a number of other agreements that are listed I think for tomorrow or the following day or fairly soon anyway, that are in effect mirror agreements of this agreement.

PN66

I don't think there's any benefit to be gained by formally going through the same process that we have this morning, so I will not require attendance at those listings, I'll keep them as listings but change them to E Listings if you like, and proceed on that basis. If there is any difficulty with this agreement being certified, then I'll call this one back on, not the others. If there is no difficulty with this one being certified, both this and the others, assuming they are direct replicas of this agreement, will be certified.

PN67

MR EDMONDS: Yes, thank you sir.

PN68

THE DEPUTY PRESIDENT: I will adjourn on that basis.

ADJOURNED INDEFINITELY [11.32am]