AG2004/7848, Transcript of Proceedings [2004] AIRCTrans 4762 (7 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 9222
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2004/7848

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Downer Connect Pty Ltd and Another
for certification of the Downer Connect Pty
Ltd Certified Agreement 2004

MELBOURNE

10.46 AM, FRIDAY, 26 NOVEMBER 2004

PN1

MS A. GOOLEY: I seek leave to appear on behalf of the CEPU.

PN2

MR A. ABSOLOM: I appear on behalf of the CEPU.

PN3

MR D. SULLIVAN: I appear for the Australian Industry Group on behalf of Downer Connect.

PN4

THE SENIOR DEPUTY PRESIDENT: Sorry, you appear for?

PN5

MR SULLIVAN: Downer Connect.

PN6

THE SENIOR DEPUTY PRESIDENT: Are you an employee of Downer Connect?

PN7

MR SULLIVAN: Sorry, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Are you employed by Downer Connect or are you - - -

PN9

MR SULLIVAN: No, the Australian Industry Group.

PN10

THE SENIOR DEPUTY PRESIDENT: With AIG, yes. Yes, Mr Sullivan, do you have any difficulty with Ms Gooley's appearance?

PN11

MR SULLIVAN: Yes, we are a bit surprised why she is appearing, your Honour, seeing that - - -

PN12

THE SENIOR DEPUTY PRESIDENT: I don't know why you are surprised, I am not, given correspondence that is on the file.

PN13

MR SULLIVAN: Well, we have received no correspondence from the union, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: I see. Well, let me enlighten you. There is a letter from on CEPU letterhead dated 14 October 2004 over the signature of Peter Tighe, the national secretary addressed to Vice President Ross. It reads:

PN15

I am aware that an application is to be lodged with the Commission to certify an enterprise agreement between the CEPU, communications division and the company, Downer Connect Limited. I write to advise you that the communications ...(reads)... further information please contact me.

PN16

And it is signed Peter Tighe. Yes, Ms Gooley?

PN17

MS GOOLEY: Your Honour, I should advise you that I am appearing with Mr Benfell who is here to my right instructing me in this matter and should advise you that a copy of that letter was sent to Downer Connect and to the communications division to advise them of - to give them a copy of that letter.

PN18

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, now, Mr Sullivan, do you object, first of all, to Ms Gooley appearing as counsel?

PN19

MR SULLIVAN: No, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Ms Gooley. Now, it is a matter of who appears for the CEPU. I have two interests purporting to appear for the union. Of course the union is the registered organisation. Ms Gooley, I think I better hear you.

PN21

MS GOOLEY: As the letter from the national secretary indicated, your Honour, the national secretary was writing to advise the Commission that the agreement that purports to be before you is not an agreement made by the CEPU and authorising Mr Benfell to appear - to represent the union and then to instruct me to appear on behalf of the union in relation to this matter. And it might be appropriate for me to explain to you, your Honour, why this agreement has not been made and therefore is distinguishable between - from many other decisions that have been considered by the Commission where an agreement has been made, but then a party seeks to withdraw from it, because that is not the situation here.

PN22

We say the fundamental jurisdictional prerequisite that you need to be satisfied of is that there has been an agreement made between the CEPU and Downer Connect Pty Ltd and we say that there hasn't been. That they know that there hasn't been, that the communications division knows that it hasn't been and in fact it hasn't been made.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, has there been an agreement made between the communications division and the employer, has there?

PN24

MS GOOLEY: This is what I am instructed. There has been a document filed in this Commission. It is an application for the certification of agreement. The file was inspected yesterday and that agreement that was received - the application that was received on 20 October 2004, which was on the file as of yesterday, was an application for an agreement made between Downer Connect Pty Ltd and the Communications, Electrical and Plumbing Union, electrical division. Now, we can certainly say that no agreement has been made with the electrical division of the union in any form.

PN25

THE SENIOR DEPUTY PRESIDENT: So, with the union?

PN26

MS GOOLEY: There has been, as we understand, a document filed in this Commission that was signed by Downer Connect. As of yesterday there was not - there was no indication on the file who was purporting to sign this agreement on behalf of the union.

PN27

THE SENIOR DEPUTY PRESIDENT: Let me show you a document that was produced this morning.

PN28

MS GOOLEY: We understand, your Honour - - -

PN29

THE SENIOR DEPUTY PRESIDENT: Mr Baulk signed a letter saying:

PN30

Please find attached a statutory declaration concerning the Downer Connect Pty Ltd certified agreement. It is unclear whether the CEPU will be attending.

PN31

I don't know quite what that means. But there is a statutory declaration made by Mr Baulk dated 23 November in the usual form, R28 and accompanying his letter was a copy of the agreement. I assume it is the same agreement that is on the file purporting to be signed by Mr Noel Bretag, whose position is not specified, on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. I will show you those two documents - those three documents, Ms Gooley. Who is Mr Bretag?

PN32

MS GOOLEY: I am just trying to find that out. He, we understand, is an assistant secretary of the communications division and it is our submission that the communications division isn't authorised under the rules to enter into this agreement. The assistant secretary of the communications division isn't authorised to sign an agreement on behalf of the CEPU in these matters and they are the submissions that the CEPU wishes to put before you this morning.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. Are you in a position to deal with those submissions, Mr Absolom?

PN34

MR ABSOLOM: To a point, your Honour. I have been directed to appear by the divisional executive of the communications division of which Mr Brian Baulk is secretary. It may be also pertinent to note that Mr Baulk is also national president of the CEPU as well. We have entered into a number of agreements in this industry over - particularly over the last four years that I have been involved in the industry, in particular, the one that precedes this agreement. Some of those agreements have been signed by Peter Tighe, the national secretary; some have been signed by Brian Baulk.

PN35

So, as I said, I am directed appear here today as - from the communications division.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, what I am inclined to do, subject to hearing from the parties, is to treat this morning as a mention and directions hearing. There are difficult questions of law that arise relating to the rules of the union, their interpretation and in relation to whether or not there was authority on behalf of Mr Baulk to sign the agreement, or whoever signed it - Mr Bretag, rather. Whether there are issues of estoppel that arise and whether issues of ostensible as opposed to actual authority arise. They are very complicated legal questions that I have not had the necessity to turn my mind to for a long time.

PN37

And I suspect Mr Absolom, that without the assistance of highly qualified lawyers, you won't be able - you won't be in a position to assist me in support of your application. So what I am minded to do is direct Ms Gooley's interests - the Federal union, to file and serve full written submissions together with any evidence upon which it relies, whether it be witness statements in full or any other material, by a date which we will determine shortly. And then to require the entity that purports to be the union party to the agreement to do likewise within a certain date.

PN38

And then for Ms Gooley's client to reply and file material in reply by a certain date and we will list the matter for hearing after we have had the opportunity of having considered material placed before the Commission. Does anybody at the bar table oppose that course of action? No, very well, well, I will adopt that course of action. We will just go off the record for a moment to fix a timeframe.

OFF THE RECORD

PN39

THE SENIOR DEPUTY PRESIDENT: I have had some discussions with the parties and in the light of the developments I think it is appropriate that I mark the documentation that was received in the Commission today. There is a letter dated 23 November 2004 over the signature of Brian Baulk - B-a-u-l-k, the Divisional Secretary of the CEPU which attaches a statutory declaration in the usual form. I will mark these documents separately.

EXHIBIT #BAULK1 LETTER DATED 23/11/2004

EXHIBIT #BAULK2 STATUTORY DECLARATION MADE BY MR BAULK ON 23/11/2004

EXHIBIT #BAULK3 COPY OF CERTIFIED AGREEMENT SIGNED BY NOEL BRETAG ON BEHALF OF COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA DATED 23/11/2004

PN40

THE SENIOR DEPUTY PRESIDENT: And I note that BAULK3 is not stapled - it is held together by a paper clip. Now, I make the following directions. The union, as represented by Ms Gooley, and I refer to it in that fashion because there seems to be some debate as to who is representing the union - but Ms Gooley's interests are to file and serve full written submissions, together with any evidentiary material including full witness statements and any other material relied upon, by the close of business on 10 December 2004.

PN41

The interests represented by Mr Absolom, who also purports to appear for the union, are to file and serve the same - the identical matters to which I have referred by close of business on 21 January 2005. Downer Connect Pty Limited, if it chooses to do so, is to similarly file its documentation in the identical respect by 21 January 2005. Ms Gooley's interests are to file any material, in reply, by close of business on 11 February 2005 and the matter will be set down for hearing at 10.15 am on Tuesday, 15 March 2005. Yes, thank you. We will just adjourn briefly while I consider Mr Wainwright's matter.

ADJOURNED UNTIL TUESDAY, 15 MARCH 2005 [11.10am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #BAULK1 LETTER DATED 23/11/2004 PN40
EXHIBIT #BAULK2 STATUTORY DECLARATION MADE BY MR BAULK ON 23/11/2004 PN40
EXHIBIT #BAULK3 COPY OF CERTIFIED AGREEMENT SIGNED BY NOEL BRETAG ON BEHALF OF COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA DATED 23/11/2004 PN40