AG2004/8384, Transcript of Proceedings [2004] AIRCTrans 4957 (17 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 9361

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE
SENIOR DEPUTY PRESIDENT LLOYD
COMMISSIONER FOGGO

AG2004/8384

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LC of the Act
by Victorian Hospitals' Industrial Association
and Others for certification of the Victorian
Public Health Sector Maintenance Unions
Agreement 2004

MELBOURNE

9.34 AM, TUESDAY, 7 DECEMBER 2004

PN1

MR A. DJONEFF: I appear for the Victorian Hospitals' Industrial Association and the respondent members to this agreement.

PN2

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union.

PN3

MS C. CHEW: I appear for the Australian Manufacturing Workers' Union.

PN4

JUSTICE GIUDICE: Mr Djoneff.

PN5

MR DJONEFF: Thank you, your Honour. If the Commission pleases, this is a multi employer certified agreement application. It is an agreement of 12 months duration. It is a multi employer agreement for the grounds that are cited in the statutory declarations of the parties that have been furnished to the Commission. It is in the statutory declaration terms consistent with, if not identical with, the previous statutory declarations made in respect of the previous multi employer certified agreement certified by this Commission in June 2003.

PN6

The Commission will note that the terms of the agreement are very simple and only a very limited number of clauses. The agreement has all the statutory requirements that are required, a no extra claims clause, a dispute resolution clause. It is our submission, if the Commission pleases, that it is in the public interest that a multi employer certified agreement be made for the reasons advanced in the statutory declarations and I am happy to address those should the Commission so require. But I rather imagine the Commission may have another point of interest in this agreement.

PN7

JUSTICE GIUDICE: Yes.

PN8

MR DJONEFF: One rather suspects that clause 8 may have attracted your attention.

PN9

JUSTICE GIUDICE: We had noticed it, Mr Djoneff.

PN10

MR DJONEFF: Sorry?

PN11

JUSTICE GIUDICE: We had noticed it.

PN12

MR DJONEFF: It is certainly our contention that certainly every other clause that is contained within the agreement does not fall foul of what we at present understand to be Electrolux tests, although that is obviously a work in progress if I might put it like that, and certainly clause 8, if the Commission pleases, uses sub contractors. It was drafted and agreed on in a particular context pertaining to the public health sector and an emerging pattern of replacement of staff by contractors where there was not always evidence that that was the most cost efficient means of providing the work. Thus the clause was drafted to identify where circumstances that warranted examination would be raised.

PN13

It goes to the issue of security of employment and is reflective I suppose of the reality that exists in the public health sector in the maintenance area where there is a mix of work carried out by contractors or sub contractors, and also in house staff. Having looked at some of the decisions as it relates to contractors, I am conscious, your Honour, that this may not necessarily satisfy what we presently understand to be the Electrolux tests, and I think one of the options we may have is for the parties to perhaps furnish you with perhaps written submissions as to why this clause should be entertained in this context and perhaps at a time when the Commission's own views on the extent and the nature of Electrolux rules are crystallised.

PN14

JUSTICE GIUDICE: There is an issue about contractor provisions.

PN15

MR DJONEFF: Yes.

PN16

JUSTICE GIUDICE: Obviously some might be towards the uranium case end of the spectrum and some might be towards the Cox's case end of the spectrum.

PN17

MR DJONEFF: That is right.

PN18

JUSTICE GIUDICE: And there might be some ambiguity in some cases but the difficulty which on first blush this clause presents is that it attempts to regulate the use of contractors rather than in some way deal with conditions of contractors and employees.

PN19

MR DJONEFF: I think that is a fair observation, your Honour. It is fairly inescapable that in its wording it has that character.

PN20

JUSTICE GIUDICE: It is a question of whether a provision with that character pertains.

PN21

MR DJONEFF: Yes, your Honour, and the parties I think are prepared to give that further consideration and perhaps make further submissions in the light of emerging law if you like.

PN22

JUSTICE GIUDICE: Yes.

PN23

MR DJONEFF: For us mere industrial relations mortals. It was entered in good faith at the time it was entered into for quite legitimate and specific purposes but obviously with the emergence of the Electrolux decisions and the debate surrounding that, we would want to perhaps reflect on that and possibly re-cast it. Now I should point out as a matter of practicality the agreement expires in February 2005 and the parties are already engaged in negotiations for the next agreement, highly sensitised to Electrolux implications which of course we were not at the time this was negotiated and I should add that the agreement is in fact being implemented and applied and the workforce is receiving the benefits that the agreement provides.

PN24

JUSTICE GIUDICE: Yes.

PN25

MR DJONEFF: So in that sense some delay in the final certification of this is not critical in a practical sense. If the Commission pleases.

PN26

JUSTICE GIUDICE: Mr Djoneff, I suspect there is also an issue about an extension of time in this application.

PN27

MR DJONEFF: Oh yes, there is, your Honour. I have to say this is not entirely uncommon in this industry but we do seek for the Commission to exercise its discretion under 111(1)(r). The agreement was voted on during the course of July/August this year but to be perfectly blunt about it, the paperwork associated with bringing it to the Commission has been less than optimal. This particular workforce we are talking about is very stable with an extremely low turnover and given that the vote was virtually I think about 98 per cent in favour of the agreement, there is no reason to conclude or suspect that the composition of the workforce has in any appreciable way changed since the time of the vote. If the Commission pleases.

PN28

JUSTICE GIUDICE: Yes, thanks, Mr Djoneff. Mr Wainwright.

PN29

MR WAINWRIGHT: Well, your Honour, to begin with the extension of time question, the CFMEU supports the application for an extension of time in this matter. I am instructed that the composition of the workforce has not changed since the vote on 4 July, and the Commission can be confident that the workforce that approved the agreement then still supports its certification today. On the question of clause 8, I suppose we are in the Bench's hands in regard to that. Obviously our preferred approach would be for the parties to have an opportunity to go away and confer and research the law with regard to that particular clause.

PN30

As you have indicated, your Honour, there might be limited arguments that we can put forward. However we feel obligated to give that process a try and we are mindful of the fact that the parties are currently negotiating a new agreement and certainly hope to lodge a document with the Commission early next year. So we would seek directions from the Commission that the parties lodge submissions with you on the clause that has been identified and any other matters that the Commission may be concerned about, and obviously in formulating our response to you we will also be considering our position. However - - -

PN31

JUSTICE GIUDICE: How long would you like for that, Mr Wainwright?

PN32

MR WAINWRIGHT: Well, I was thinking about that before we began. I was thinking that it might be appropriate to have submissions lodged by 20 January. Then I considered the fact that the agreement runs until 14 February.

PN33

JUSTICE GIUDICE: Valentine's Day.

PN34

MR WAINWRIGHT: We could make a date, your Honour, I will do whatever I have to to get this agreement certified. But it might be more appropriate that we have submissions lodged within 2004. But as I say, in formulating those submissions we will be considering our position and the likelihood of success, and then taking any appropriate steps. So perhaps I can suggest, your Honour, that the last day that I am scheduled to work is I think Wednesday, 22 December, so perhaps it is appropriate to suggest that we have any submissions lodged to you by then.

PN35

JUSTICE GIUDICE: Yes, just before you go on with the other points, is that acceptable to you, Mr Djoneff?

PN36

MR DJONEFF: Yes, your Honour.

PN37

JUSTICE GIUDICE: Is the 22nd okay for you?

PN38

MS CHEW: Yes, I would support Mr Wainwright's submissions except for the offer of a date. I think that we understood that.

PN39

MR WAINWRIGHT: The only other thing I have to add, your Honour, is that in all other respects we say that the application meets the requirements of 170LC and 170LT, and should you not be concerned about any of the clauses, we seek to have the agreement certified.

PN40

JUSTICE GIUDICE: There is a requirement under LJ that there be at least one member of each of the organisations. A previous decision has addressed the issue of how that requirement applies to a multiple business agreement and I think the decision in that case was that as long as there is a member in at least one of the businesses, that that is enough. I take it that that requirement is satisfied.

PN41

MR WAINWRIGHT: Certainly, your Honour. We have at least one member employed in at least one of the organisations outlined in schedule 1 and that member is a carpenter and we are entitled to represent the industrial interests of that member.

PN42

JUSTICE GIUDICE: Yes. Yes, Ms Chew.

PN43

MS CHEW: I am similarly able to confirm that, and we have at least one member that the union is capable of covering. It is a maintenance worker at one of those employers.

PN44

JUSTICE GIUDICE: Yes, does anybody know anything about the CEPU? Then we would be confident they have got at least one member?

PN45

MR WAINWRIGHT: Yes, both divisions, your Honour. This agreement covers both electricians and plumbers and the electricians and plumbers employed in the organisations listed in schedule 1 are in the main, if not entirely, members of the CEPU.

PN46

JUSTICE GIUDICE: Yes, thank you. Well we can indicate that the extension of time we view favourably, so that should not be an issue. But the issue outstanding is the one that has been identified in relation to clause 8, the use of sub contractors. As indicated we shall expect to have written submissions filed by all parties who want to make submissions about that point by 22 December 2004, and we shall give our decision as soon as possible thereafter, although it is unlikely to be before January. Thank you for your assistance, we shall adjourn.

ADJOURNED INDEFINITELY [9.50am]