AG2004/7175, Transcript of Proceedings [2004] AIRCTrans 4536 (23 November 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2498
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/7175

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Another for
certification of the Clare and Gilbert Valleys
Council (AWU) Enterprise Agreement No 3, 2004

ADELAIDE

3.31 PM, FRIDAY, 12 NOVEMBER 2004

PN1

MR N. LLEWELLYN-JONES: I appear with MR R. SKUSE for the Australian Workers' Union.

PN2

MS L. JAMES: I appear for Clare and Gilbert Valleys Council in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, I have listed this matter this afternoon because it was originally intended this application be dealt with by way of what I call an "E Hearing". As a result, questions about the statutory declarations and the agreement were forwarded out to the parties and I have received responses from the parties. The protocol that I've established for E Hearings dictates that if there remain questions about which I'm not satisfied as a result of receipt of those E Hearing responses, then I list the matter for a formal hearing and as a consequence I've done just that.

PN4

It might help the parties though if I advise that there are, in effect, only three issues about which I seek further clarification from the parties. The first of those relates to the jurisdictional foundation for the agreement and in that regard the parties have referred to the Commission's dispute finding in C No 20948 of 1993. I have absolutely no doubt that this dispute finding by Commissioner Frawley made on 28 February 1994, establishes an interstate dispute. That is not the issue that I'm seeking clarification from the parties about.

PN5

Rather, it is to the extent that I can regard each of the terms of the agreement as being within the ambit established by that dispute. Further, I need to be satisfied that the issue, or that the relevant claim upon which that ambit is founded is itself a matter pertaining to the employment relationship. In the event that those two questions did not allow a conclusion to be reached, such that the agreement was capable of being relied upon in terms of section 170LO, it may be that the agreement could be relied upon in terms of section 170LP, insofar as it relates to an agreement about an industrial situation. In that event, the issue of interstateness might arise.

PN6

Now, I can say that having looked at the dispute finding in 20948 of 1993 relative to other matters, it is a comprehensive claim. I haven't looked at it in the context of this particular agreement and that is why I sought advice from the parties, so that might assist the parties in terms of explaining the first issue about which I seek clarification. The second issue relates to clause 22 and the question that I have there was set out in the email response, or question to the parties. Clause 22 relates to the healthy lifestyle program.

PN7

The issue that I have for the parties in that regard goes to the extent to which I can consider such a program pertains to the employment relationship, given particularly the variety of issues that can impact on a healthy lifestyle. Thirdly and lastly, the extent to which I can regard clause 25, which relates to training, as being a matter pertaining, or an incidental or ancillary provision. In that regard as I've indicated on previous occasions and as the parties have noted I have noted the conclusion reached by Vice President Ross in Ballantyne.

PN8

If the provision of training made any form of specific reference to the role of the training as it related to the function of a workplace representative, then, I think that question would be beyond doubt, but I do want to invite the parties to give me any further submissions relative to that clause too. Now, Mr Llewellyn-Jones, I don't necessarily require the parties address me on those three issues today, I'm happy to hear you if you are prepared to do so, but equally I'm quite happy to give the parties more time to consider this issue in this complex day and age.

PN9

MR LLEWELLYN-JONES: If it pleases the Commission. Commissioner, I have been advised the Commission's main concern was with respect to clause 25, Training, so in that sense I'm happy to address the Commission on that clause. In terms of the jurisdiction of this matter I have some material that I can provide to the Commission, so I'm happy to address the Commission on that clause.

PN10

However, if the Commission is unhappy with those responses I would possibly, because of the circumstances surrounding and the complications surrounding certification of enterprise agreements in this instance, week a further opportunity to provide submissions, either for a second hearing or written submissions, but I will attempt to address those concerns in this instance.

PN11

However, in terms clause 22 I have had no opportunity to review that clause in the context of this instance, so what I might do in those circumstances if it pleases the Commission, is address those two other issues first and at that point if I feel comfortable in addressing clause 22, having turned my mind to it throughout the duration of my submissions on clause 25 and the jurisdictional issue, I will address the Commission. If not, then I will ask to take up that offer, if that is possible.

PN12

THE SENIOR DEPUTY PRESIDENT: Well, I'm totally in your hands in that I'm happy to go down that path, or I'm equally happy to give you the opportunity to ponder upon the three issues and address them at a later stage if you want to do so.

PN13

MR LLEWELLYN-JONES: Thank you, sir. Look, if it pleases the Commission, I will address the Commission on trading in this instance.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR LLEWELLYN-JONES: In fact, Commissioner, if I could just turn to your own decision because at this instance as it stands, post Electrolux, there appears to be two different decisions regarding - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Which one of my own decisions?

PN17

MR LLEWELLYN-JONES: Scheffenacker, sir.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. I don't have that before me but I do recall it somehow, Mr Llewellyn-Jones.

PN19

MR LLEWELLYN-JONES: Yes, your Honour, that was a decision that you handed down on 28 October 2004.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. I don't recall the specific words in the agreement in question in that case, but I will look it up.

PN21

MR LLEWELLYN-JONES: Yes, that is fair enough.

PN22

THE SENIOR DEPUTY PRESIDENT: I have looked at each clause in each particular agreement in the context of the specific wording of that clause and that agreement.

PN23

MR LLEWELLYN-JONES: Yes, that is entirely right. Your Honour distinguished in fact that clause, which in that case was the Trade Union Training clause, from the decision of Vice President Ross in K.L. Ballantyne in this instance in the Scheffenacker situation your Honour found that that clause did not pertain to the requisite relationship between employer and employee, because it did not facilitate the resolution of industrial disputes.

PN24

At point 77 of your Honour's decision, you isolate two core elements which you then subsequently in paragraph 78 and 79, through to paragraph 80 and 81, determine allows - rather, prohibits the Commission from certifying the agreement on the basis of that clause. If my reading of your Honour's decision is correct those two core issues in terms of that clause appears to be that the leave can be granted at the discretion of the unions, that would be the first limb of concern. The second concern that your Honour rightly put was that the training courses were conducted by the unions, that would be the second limb of concern. Your Honour then went on to say that believed that:

PN25

There were instances where trade union training leave could pertain to the requisite relationship.

PN26

But in this circumstance because of those two above issues you were prohibited from certifying the agreement.

PN27

THE SENIOR DEPUTY PRESIDENT: I'm struggling a little with the second in that I don't recall the question of who actually conducts the training to be a fundamentally relevant consideration and I would have some difficulty conceiving of a situation where simply because a training program was conducted by a union, the program could not be held to be ancillary to a dispute resolution provision.

PN28

MR LLEWELLYN-JONES: It may well be that I've read your reasoning slightly incorrectly then, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR LLEWELLYN-JONES: If that is the case, I apologise to you and to the Commission.

PN31

THE SENIOR DEPUTY PRESIDENT: That is all right, Mr Llewellyn-Jones.

PN32

MR LLEWELLYN-JONES: In this circumstance, I mean, in terms of 77 which is the initial paragraph by where you reject the proposition of trade union training leave, if I read from that paragraph:

PN33

I have reviewed the agreement in this context. Clause 38 creates an annual grant of leave at the discretion of the unions. This leave is available to shop stewards. Training courses are to be either conducted or approved by the unions.

PN34

Then, you go on to say:

PN35

I am unable to characterise this clause as pertaining to the employment relationship as such.

PN36

You then go on in paragraph 79 to say that:

PN37

It is not ancillary or incidental.

PN38

Then you go on to clause 80, which is:

PN39

I have noted the conclusion reached with respect to the trade union training leave clause in the agreement by Vice President Ross in Ballantyne ...(reads)... employer and employees as such.

PN40

From that I derived that your two concerns were the two limbs of how you read the clause in 77, but it may well have been that the limb that you had the most concern about was the discretion of the unions. From my reading of Scheffenacker, they appear to be the two fundamental concerns that you had in terms of the Commission's decision in that instance. However, of course, as I've already said if my reading of that is incorrect I apologise to you and to the Commission.

PN41

Be that as it may this clause appears to be distinguishable from the clause in Scheffenacker, in this instance that being trade union training leave can only be conducted in circumstances where there is agreement for the time and the place and the type of training between the employee and the employer, so there is a blanket discretion or power of the employer to allow or to prevent leave from occurring at a time which is inconvenient for the employer and, as such, it fits more into the clause envisioned by Vice President Ross in K.L. Ballantyne. So we would say in that circumstance that it prevents any concerns of your Honour's previous decision in Scheffenacker.

PN42

However, there is a second point and this goes to the purpose of the leave itself, which would like to raise with the Commission because we understand the Commission's concern. There is an argument to propose that in terms of trade union training leave, the training itself which the trade union - the shop stewards would undertake, or the delegates would undertake may be a union strengthening clause, in the sense, the training may not be about how they can resolve industrial disputes as they arise in the workplace, or how they negotiate with management on behalf of members that they have there, or how they should present themselves in misconduct investigations, or the daily routine of any work site.

PN43

There is an argument that that leave - the training may in fact be used to facilitate teaching them tools of recruitment and it therefore may be a union strengthening clause and, therefore, may not pertain to the requisite relationship. In this set of circumstances, your Honour, we would point to the fact that in terms of this work site the work site is entirely unionised as it is.

PN44

The only purpose that this training could ever fulfil would be for these delegates to represent on a daily basis in a fairly, I might say regional area, where union officials may not be able to attend to represent the work force in the relationship with their employer in terms of those things that have already been submitted, misconduct investigations, line speed issues if there are ones, general issues which may arise in that work relationship which could be characterised as industrial disputes.

PN45

So when it comes to training in this instance for the purpose of this clause, if it pleases the Commission, we would submit that not only does it fall within the definition of a clause allowed by Vice President Ross in the decision, which is best referred to as K.L. Ballantyne, but it appears from my reading anyway to work through the concerns that the Commissioner pointed out in terms of your rejection in the decision of Scheffenacker but, just as importantly in terms of the realities of the workforce in this instance, the training could only be utilised in a way to prevent industrial dispute because the workforce is totally unionised, so therefore there would be no capacity to exploit the training from a union strengthening position.

PN46

If it please the Commission, that would be my submissions on training, in terms of that instance if that pleases the Commission.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN48

MR LLEWELLYN-JONES: Jurisdiction, if I can now turn to that is a slightly more complicated issue because, of course, it requires substantially going through the log of claims and the C Number dispute determining whether or not all that all those claims create a dispute which pertain but also to which this agreement would assist in settlement.

PN49

By virtue of this, as your Honour has pointed out, we would, if possible prefer to rely on the authority that your Honour has already presented in terms of the Port Pirie Regional Council Agreement where your Honour considered this C number and drew a considerable acceptance of the fact that it was a comprehensive log which did pertain and then included that the agreement which was, at that stage the Port Pirie Regional Council Agreement settled - went towards settling that dispute that C number.

PN50

In that instance, it would be wise then to turn towards, in our view, if we can rely on the decision of your Honour in that instance as an authority - to turn to the Port Pirie Regional Council decision and having gone through that we would submit that there is nothing that we can find in this agreement which substantially deviates from the agreement in the Port Pirie Regional Council. The phraseology is different, but substantially the issues are covered at the same and we would hope to rely on your Honour's decision in that instance to allow for jurisdiction to be determined in this instance because, in our view, the two agreements are drafted to cover the same grounds and my friend, Mr Skuse, in fact may be able to talk on that briefly because I understand that he drafted both those agreements in many respects to cover the same grounds.

PN51

THE SENIOR DEPUTY PRESIDENT: Can I take it with particular reference to clause 22 but in a different - which is the Healthy Lifestyle Program, but in a different context to the issue of whether that pertains that you would say that there is ambit for that sort of clause?

PN52

MR LLEWELLYN-JONES: Yes, your Honour, points out probably the one core difference between the two agreements which is the Healthy Lifestyle Program and as such, I suppose that clause contains two problems which in fact may be best dealt with in terms of written submissions. One, is does it pertain in its own right and two, then if it does pertain is it drafted in a way which can sufficiently be said to allow for the jurisdiction of that C number to be placed over this agreement. I accept your Honour's on that entirely, but if it pleases the Commission, with that clause being isolated "the exception", I would prefer to discuss that in submissions later.

PN53

THE SENIOR DEPUTY PRESIDENT: On a very brief look through the agreement that appeared to me to be the only problematical clause relative to the question of ambit.

PN54

MR LLEWELLYN-JONES: Yes, and look I - on your Honour's point on that it is both problematic because it may not pertain and it is also problematic because it is clearly the one distinguishing clause between that and the Port Pirie Regional Council Agreement. So in terms of that clause having isolated it as possibly the "problem clause" if it pleases the Commission to use that term, I would at this stage like to take up the Commission's offer to perhaps draft some submissions on that at a later date.

PN55

THE SENIOR DEPUTY PRESIDENT: Certainly. Now, how long do you need in that regard, Mr Llewellyn-Jones?

PN56

MR LLEWELLYN-JONES: I - - -

PN57

THE SENIOR DEPUTY PRESIDENT: I'm not trying to pressure you at all.

PN58

MR LLEWELLYN-JONES: No, no.

PN59

THE SENIOR DEPUTY PRESIDENT: I'm happy to grant you basically as long as you need because the longer you take the longer I have to catch up with a few other decisions.

PN60

MR LLEWELLYN-JONES: Well, I'm also conscious of the fact that the last time I set this time frame sadly not only was I hijacked from fulfilling some of my obligations under that time frame but couldn't attend at the next hearing date. So I am sort of - having been once bitten, I'm now twice shy. I would say possibly 3 weeks, that is because I'm in Melbourne all of the week after next and I think 1 week might be too short. So if it pleases the Commission, possibly a Friday 3 weeks' time.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Jones?

PN62

MS JAMES: Thank you, Senior Deputy President. We concur with my friend's remarks with regard to the jurisdictional matters and also with the training clause. There is something further I would like to add just with regard to clause 22, Healthy Lifestyle Program. This is, of course, you may recall council had a recent agreement with their inside workforce, this is just simply a - - -

PN63

THE SENIOR DEPUTY PRESIDENT: I don't, Ms Jones, I'm sorry.

PN64

MS JAMES: Okay, sorry. This simply is that clause reproduced for the outside workforce. Just for the sake of a consistent approach to all staff. The only thing I can say perhaps where we believe it does pertain to the contract of employment, or the matter between an employer and an employee is with regard to perhaps not the clause in its entirety but certainly with regard to skin cancer checks and that is - we believe that that would be ancillary to clause 23: Sun Protection, which talks about protective clothing.

PN65

I know you will be familiar with much debate over the wearing of clothing, long sleeved shirts and the such like. That has been subject to a dispute back - well, I believe you have been involved in perhaps about 12 to 18 months ago. So it is about providing base line to be informed of the employee's health status in regard to skin cancer and to make sure that employees do follow a skin protection process.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, I have no question about the sun protection clause 23. I think that can be clearly established as a clause that links back to clause 21. The clause about which I am raising questions is clause 22.

PN67

MS JAMES: Yes, no, I do realise that. All I was saying though in the final statement that is main clause 22, actually links to sun protection requirements that for employees to wear uniform.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, I can see that aspect of it does, yes.

PN69

MS JAMES: Sorry. So in terms of Occ Health and Safety it is all linked to that one program. Apart from that, sir, I don't have anything further to add.

PN70

THE SENIOR DEPUTY PRESIDENT: Do you want the opportunity to put in written submissions too, Ms Jones, or do you just want to take that as a situation where you may put in submissions or you may?

PN71

MS JAMES: Well, certainly I think that the parties should confer on what goes in to the Commission. So we would seek leave to do that.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. I will give the parties a period of 3 weeks in which to make written submissions. If during that 3-week period either or both of the parties decide they would prefer to make oral submissions and request a further hearing of the matter then I will list the matter for a further hearing. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [3.55pm]