AG2004/8563, Transcript of Proceedings [2004] AIRCTrans 4990 (21 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 9402
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2004/8563

APPLICATION FOR VARIATION
OF CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
by Australian and New Zealand Banking Group to
vary re sub-clause 4.2.1 of the agreement

MELBOURNE

3.16 PM, FRIDAY, 10 DECEMBER 2004

Continued from 6.12.04

PN42

THE COMMISSIONER: Any change in appearances?

PN43

MR M. McDONALD: I now appear with MS T. LAVRANOS on behalf of the bank.

PN44

MR P. GARDNER: I seek leave to appear on behalf of the Finance Sector Union.

PN45

THE COMMISSIONER: Yes, leave is granted. Now, Mr Gardner, your client sought this matter.

PN46

MR GARDNER: Yes. Thank you, Commissioner. The matter has been relisted at the request of my client by letter of 7 December and we are grateful for that. We had understood, I must say - I would be assisted if I could have some clarification on this issue - that the Commission on the last occasion foreshadowed directions to be made or indicated an inclination, I think it was, to make directions in a particular form and we have proposed and provided some alternative directions yesterday afternoon. Does the Commission have those, or I have got another copy here if not?

PN47

THE COMMISSIONER: I do have the draft directions here.

PN48

MR GARDNER: And I think my learned friend has got those draft directions we provided yesterday afternoon.

PN49

THE COMMISSIONER: I think on the last occasion I said I would issue directions but I granted leave to the union to make some submissions on those if they wished to subsequently.

PN50

MR GARDNER: Well, we take up that opportunity, thanks, Commissioner. What we propose in these draft directions - and we submit that they really are framed to meet the matters before the Commission, and the matters before the Commission are, first of all, the ANZs section 172MD(6)[sic] application. And I don't want to go to the merits at all of that application but, for the purpose of pursuing the directions we seek, which, as I understand, are not agreed, it is necessary just to draw your attention, first of all, to the terms of the clause in question. And I have just extracted a copy because it is probably more convenient to provide it to you than to hunt around the materials for it.

PN51

What I am providing, Commissioner, is an extract from the ANZ-FSU Agreement 1998 and, in particular, clause 4.2.1 and attached to it are the Commission's certification documents in relation to the agreement. Clause 4.2.1 is the clause the subject of the application in the proceeding, and the Commission will notice that the application in the proceeding itself asserts simply that in paragraph 1, as a ground - that:

PN52

...clause 4.2.1 of the agreement is ambiguous or uncertain as to whether it authorises the ANZ to employ new or existing employees upon terms of employment whereby...

PN53

and then there is references to 152 hours a week and so on. For my client's part, it wants to know how it is said that the clause is ambiguous, and it is submitted that it is entitled to know that. In my submission, the way in which the bank's application has been formulated is a bit like saying that the clause is ambiguous and uncertain in the same way as it is on the question of whether unsuccessful applicants should be given chewing gum or something like that. There is just a departure entirely. My client, it is submitted, is entitled to know the case it meets, particularly in circumstances where the words, in order to be held - or the clause, in order to be found to be ambiguous or uncertain, need to be construed in the context of the agreement and they need to be susceptible to more than one meaning on an objective assessment.

PN54

Now, none of that is put. We don't understand the way it is put. And it should be recalled, Commissioner, that this requires, really, the identification of a jurisdictional fact, the absence of which deprives the Commission of the capacity to enter upon the exercise of a discretion. In other words, it is a statutory prerequisite for any variation to be made. It is not enough that the terms of the agreement might prima facie or arguably be said to be uncertain or ambiguous.

PN55

THE COMMISSIONER: Indeed, recently drawn to my attention. I understand, Mr Gardner.

PN56

MR GARDNER: Exactly. It must be so on an objective assessment and a mere contrariety of views isn't sufficient either. We observe, as well, that in order to remove this alleged ambiguity or uncertainty, the bank seems to need a thesis to do it, and that is contained in their draft order. So in both circumstances we do seek for a fair hearing of this application for the ANZ to file and serve an outline of its submission, including on the question of jurisdiction and beyond the mere assertion in the application that is submitted that we are entitled to that.

PN57

The second point, and it is picked up in the draft directions, is that the FSU makes application under section 111(1)(g) of the Act. And once we understand the case we really need to meet in terms of jurisdiction then that can be conveniently dealt with in the way we have set out in the directions and we will then be in a position to respond to the 170MD(6) application as to first of all whether there is an ambiguity or uncertainty objectively assessed. The material that needs to be gone to is some six years old, Commissioner, on the question of the substance of the case.

PN58

And it might be recalled, or it should be recalled, that the application or variation that arise from the exercise of the discretion is only exercised to remove the ambiguity or uncertainty that is objectively determined. It is not a question of rewriting the agreement in terms proposed by one or the other party but only in terms that were inherent in the agreement when it was made. That underscores the significance and the importance of us knowing how it is that it is said that it is ambiguous or uncertain and nowhere in the material is that provided.

PN59

It underscores the point about need and entitlement to know the way in which it is put because that actually informs as well the way in which the case itself, or the substance of the case, might be dealt with. Commissioner, the relevant officers in the FSU are away on leave in the period of January and as I am instructed, pressed in the period to Christmas. For my own part I have been retained for today and I understand I might have some role in the proceedings and I am on leave in January and that is an immutable fact of life with respect to the Commission.

PN60

The next observation we make is that the time frame within which we propose the matter be dealt with is reasonable in the circumstances and furthermore it is not one that can be said to prejudice the bank in any significant way balanced against the bank's delay in bringing the application. And can I draw the Commission's attention to, for the purpose of making good our point on this, the period of time that this issue has been hanging around. The first document I would like to provide or tender in fact is a letter from the ANZ to the FSU dated 6 March 2002. The Commission will see that it is addressed to the FSU.

PN61

THE COMMISSIONER: Just a moment I will mark that FSU1.

EXHIBIT #FSU1 LETTER TO MS MALONEY DATED 6 MARCH FROM MS KIMBERLEY REID

PN62

MR GARDNER: Commission will see that in the introductory paragraph Ms Reid indicates that she is satisfied that our standard letters are appropriate and consistent with our obligations. Over the page, at the top of page - the second page, there is a reference to three hours of work, rostered days off. Commission will see that she indicates that:

PN63

The bank believes the clauses you extracted and our practice in relation to RDOs is consistent with clause 4 of the EBA -

PN64

that is the clause in contention here -

PN65

and the third dot point where ANZ Business needs require a variation of the standard 19 day cycle over four weeks. Its existing employees and prospective employees have been asked to agree to a change to working hours.

PN66

So we have got in March 2002 the bank asserting its position in relation to the provision concerned. The next letter is a letter dated 8 November 2002, I seek to tender, from Andrew Webster head of People Capital - that is the bank's term not the union's.

PN67

THE COMMISSIONER: Excuse me a moment Mr Gardner. Yes, thanks, Mr Gardner. It is a letter from Mr Webster to Mr John Wilson dated 8 November which will be FSU2.

EXHIBIT #FSU2 LETTER FROM MR WEBSTER TO MR WILSON DATED 8 NOVEMBER

PN68

MR GARDNER: I thank the Commission. In paragraph two the Commission will see a reference to:

PN69

As explained in Kathy Tingate's letter to Mr Mairs it is the view of the bank that clause 4.2.1 of the agreement permits the bank and the staff member to reach agreement on changes to the standard working hours.

PN70

So there is still this, in November 2002, two years ago there is this backwards and forwards between the union and the bank on this issue. Then in May 2003 there is a matter before Commissioner Richards in the Commission under section 170LW and the ANZ in that provides a response in relation to issues raised in Commissioner Richards' proceedings and that response from the ANZ is dated 6 June 2003 and I seek to tender that.

EXHIBIT #FSU3 ANZ'S RESPONSE, DATED 6 JUNE 2003, TO ISSUES RAISED IN COMMISSIONER RICHARDS' PROCEEDINGS

PN71

MR GARDNER: And the Commission will see at paragraph 15 and 16 of that response the bank refers at paragraph 15 to:

PN72

Specific mechanisms within the Act in accordance with which the FSU could seek an interpretation.

PN73

And then in the next paragraph:

PN74

Alternatively the FSU could make an application to the Commission to vary the ANZ-FSU agreement to remove an alleged ambiguity or uncertainty in accordance with section 170MD(6) of the Workplace Relations Act.

PN75

So here we are in June 2003 - the bank saying, well, this is clearly a course and a course commending the union to take. And then in July 2003 there is a letter from - - -

PN76

THE COMMISSIONER: Was there a decision issued by the Commissioner in that case?

PN77

MR GARDNER: No. The bank as I recall from my reading opposed - I think proposed an arbitration arising out of that issue. The next correspondence is a letter of 18 July 2003 from the bank from Ms Reid to Mr Matson at the union and Commissioner I seek to tender that.

EXHIBIT #FSU4 LETTER DATED 18/07/2003 TO MR MATSON FROM MS REID

PN78

MR GARDNER: That letter, Commissioner, refers to a section 99 proceeding before you on 2 July 2003 and you will see in the second, third paragraph, that there is a reference to evidence to commence proceedings in the Federal Court under 178 for alleged breaches of clause 4.2, it means point one, and in there what is happening is that the bank is conscious in acknowledging that there are going to be some Federal Court proceedings and provides in order to truncate or simplify its obligations that might have arisen out of those proceedings it provides some admissions of fact that are then set out.

PN79

The purpose of tendering that material, Commissioner, is simply to illustrate that it is not as though all of a sudden this question of clause 4.2.1 of the agreement has cropped up out of mid nowhere and that the matter needs to be, on the bank's application, dealt with in great haste or without a fair and reasonable time for the union to undertake the necessary inquiries and searches and that it is not going to suffer any serious prejudice by the sort of program we have provided and proposed balanced against what can only be described as a really very significant delay in making the application when it has clearly been conscious of the issues between the parties in relation to the matter.

PN80

Turning specifically to the directions the Commission can see that we are seeking one notice in effect of what the alleged ambiguity or uncertainty is by way of an outline. Then the FSU, to put in its material in support of its 111(1)(g) and respond to the 170MD(6) and the ANZ would then, by 11 March, respond to the 111(1)(g) and have a reply on MD(6) and then the FSU would then put in its reply on the 111(1)(g) and all parties would have had fair opportunity to put the material before the Commission.

PN81

THE COMMISSIONER: What is the nature of the 111(1)(g) application?

PN82

MR GARDNER: It is 111(1)(g)(iv). One, two and three, Commissioner, I think are probably knocked out of place by 170L - - -

PN83

MR McDONALD: A3.

PN84

MR GARDNER: Thank you.

PN85

THE COMMISSIONER: Yes.

PN86

MR GARDNER: And in terms of the 111(1)(g)(iv) one might identify or one can immediately identify disputes including the underlying dispute in respect of which the certified agreement itself was in part settlement - it was a division 3 agreement. The second would be the proceedings before Richards and the third would be the proceedings before you. And they just spring to mind in an obvious way in terms of disputes and the way in which that might be formulated but again we would need some further time to formulate that.

PN87

THE COMMISSIONER: Thank you.

PN88

MR McDONALD: Listening to Mr Gardner does rather remind me of the scene from the Blues Brothers where Carrie Fischer is pointing a gun at John Belushi wanting to know why he did not make it to the wedding and he reels off excuse after excuse after excuse and I must say that the quality of Mr Gardner's submissions is not much better than Mr Belushi's excuses, Commissioner. The first point obviously to note is that this matter was before you last Monday in proceedings in which the FSU was represented, had the opportunity to make submissions, and as we understand it you did in fact make directions.

PN89

And that what in fact the FSU is asking you to do is to set aside those directions and substitute the directions in the form that they have proposed. It is to be borne in mind that the union has had the benefit, perhaps somewhat unusually, of having all of the material upon which the bank relies in support of its application since 1 December. And that material sets out comprehensively the basis upon which the bank presents its argument in support of its application under section 170MD.

PN90

The union says, well, we do not actually know what the nature of the ambiguity is. Well, Commissioner, if the union can dissuade you that there is no ambiguity on the face of the certified agreement then that is a sound jurisdictional argument which can be advanced in the course of the proceedings before you. And if that prevails then the application will fail but we would submit that it is readily apparent on the face of the application the base upon which it is contended that the agreement is ambiguous.

PN91

But, Commissioner, we are not adverse to, within the time frame for a hearing on 7 February, we are not adverse to filing contentions, an outline of argument, but in the ordinary course such contentions to be filed - such contention could be filed in the lead up to the hearing. But if, Commissioner, you are of the view that that should be done earlier we are in your hands. Our desire, and we do not shy away from it, is to preserve the hearing dates as scheduled to commence on 7 February. If, Commissioner, you are of a mind to direct that we file an outline of argument by Christmas Eve we will do so.

PN92

As to the immutable fact of Mr Gardner's leave, and the leave of Mr Matson, well, with respect, neither the union nor Ryan Carlisle are a one man band. The time frame, having regard from 1 December when the application was filed, the date which you provided of 21 January for the union to file its material is getting on for two months, Commissioner. Now, even taking into account the festive season, that is a generous period in which the union can prepare its material, having regard, Commissioner, and this is important. Having regard to the fact that these issues aren't new.

[3.37pm]

PN93

Mr Gardner places before you the correspondence in terms of the history of the matter. That is very much a two edged sword. It is not as though the union is being asked to consider, or look at issues for the first time. It has proceedings on foot in the Federal Court. Presumably instructions have been taken from relevant officers of the union for the purposes of the filing of the statement of claim in those proceedings. It is a matter which is well known and has been agitated in the past between the parties. So we would urge upon you, Commissioner, to retain the dates for the exchange of evidence that - - -

PN94

THE COMMISSIONER: When is the matter to be heard in the Federal Court? Do you know?

PN95

MR McDONALD: The matter is scheduled to be heard on 7 March.

PN96

THE COMMISSIONER: Yes.

PN97

MR McDONALD: Now, as for the section 111(1)(g) application, Commissioner, if the union wishes to press that matter, well, it can be heard concurrently with - it can be heard concurrently with the substantive application to be heard on 7 February. We must say that at face value it does seem to be a very flimsy argument indeed, that section 111(1)(g)(iv) in any way has got any bearing upon the matters which are before you. But if the union wants to agitate that point, well, that matter can be dealt with simultaneously with the hearing commencing on 7 February.

PN98

I should say, Commissioner, that the letters which Mr Gardner did tender, not apparent to us how they go to the question of delay. All they show is that there was an issue between the bank and the union, the bank having one particular construction of the way in which the clause operated, and the union having a different view. So we don't see those letters bearing on the re-drafting of the declaration - the directions which have been previously made. We would urge upon you, with respect, subject to any direction you may wish to make in terms of filing contentions, that the present time frame stay in place, if the Commission pleases.

PN99

THE COMMISSIONER: Thank you. Mr Gardner?

PN100

MR GARDNER: Just a couple of things, Commissioner. In relation to the history, could I make the observation that the history - two entirely different histories. The material filed by - on behalf of the bank, relates to 1998 and the process of making the award and agreement. It is that material that is six years or more old that is obviously presenting significant difficulties with the union, including a Mr Derrick, who is a New South Wales officer, not in the Federal office, who at that time had some role in it.

PN101

So it is an entirely different history. The history we are just referring to there is the background, the first time, or the times when the bank is clearly turning its mind to this sort of issue, and the reason we put it, or the relevance of it is that, for us to be now, with respect, pressed into this with extraordinary haste, doesn't sit comfortably with this issue that they have had a very great deal and a very long time to make the application they now make. So that is the first thing about history. It is an entirely different history and it requires a whole different basis of research to be undertaken.

PN102

The second thing is that my learned friend - he really doesn't identify any prejudice to the bank in the directions we seek. What he does is he fastens on some directions made by the Commission. I accept that they were made by the Commission.

PN103

THE COMMISSIONER: Well, on the last occasion the submission was put that there is often an observation made by the Court that where the Commission can determine a controversy that opportunity should be afforded to the Commission before the matter is taken to the Court. So in the sense that 7 March looms, that is a proposition that was advanced.

PN104

MR GARDNER: Well, I should deal with that then, Commissioner. Yes. The existence of the Federal Court proceedings, it is submitted, is not something that you should have regard to in setting a program to rush this through. If my learned friend's client was to make an application to the Federal Court, for the sort of reason you have just made, to stay the Federal Court proceedings because of something you might do, then they are entitled to do that. It will be opposed, but they are entitled to do it.

PN105

What my client does not want to do is to be running these proceedings on a rushed basis, on a basis where it can't really do justice to the proceedings, for no other reason than to accommodate some unspecified - but if it is the Federal Court proceedings, then they can make whatever application they like to, to the Court. But we wouldn't want the Commission to be using that as a basis to flog us to death, particularly in circumstances where it may still not be resolved, given the prospects of appeal by either side.

PN106

THE COMMISSIONER: Yes.

PN107

MR GARDNER: I think, you know, it just becomes - the Commission has been - had enough to do with these parties to be able to not sit comfortably in the knowledge that a determination by you, as a Single Member, would automatically be the end of the matter.

PN108

THE COMMISSIONER: I never make assumptions. Now, I think on the last occasion I asked the parties to confer to see whether or not it was possible to have some discussions about that. Do you know whether that has occurred, on your instructions?

PN109

MR GARDNER: I don't know, Commissioner. No, I don't.

PN110

THE COMMISSIONER: Do you know?

PN111

MR McDONALD: I think there was an approach made, but it unproductive. Not that I make any criticism about that.

PN112

THE COMMISSIONER: No, no.

PN113

MR McDONALD: It just reflects the - I guess, firmly - rather firmly entrenched positions of the parties.

PN114

THE COMMISSIONER: All right. So - yes. I was just concerned that I wouldn't want anybody to think that I was running headlong into an arbitral type proceeding without at least affording the parties the opportunity of resolving it through conciliation.

PN115

MR GARDNER: No. I think you can be comfortable about that, Commissioner. The final point we would make is that - and we don't say - we don't make this in any way, other than the proposition that - my instructions are clear - that the union really is not in a position to be able to comply and do justice to the case it needed to put. With the directions as they presently are, my client points to no prejudice. I am sorry. My opponent points to no prejudice.

PN116

MR McDONALD: Look, I will just respond to that point, the two that Mr Gardner makes.

PN117

MR GARDNER: Well, how many goes does he get, Commissioner?

PN118

MR McDONALD: Well, I am sure if I say something offensive you will want to say something, Mr Gardner. As to the different history, well, of course, Mr Matson, who has put forward - his absence is put forward as one of the principle reasons for an adjournment. Mr Matson wasn't around in 1998 with the union. Presumably isn't in a position to give any instructions in relation to the subject of Mr Baker's affidavit. As to the Federal Court proceedings, yes, we certainly don't shy away from the proposition that we are looking to have these proceedings heard and determined prior to 7 March. We don't think there is any cause for embarrassment in us proceeding on that basis.

PN119

We have made an application which, prima facie, we are entitled to have heard and determined, and there is no reason why that the proceeding can't be heard and determined in circumstances which extend to the union every opportunity to properly prepare and present its case, if the Commission please.

PN120

THE COMMISSIONER: Mr Gardner, do you wish to add anything? Well, gentlemen, you present me with a knotty problem that I am going to reflect on and simply reserve, and I will issue a decision on the matter quickly. The matter is adjourned.

ADJOURNED INDEFINITELY [3.48pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 LETTER TO MS MALONEY DATED 6 MARCH FROM MS KIMBERLEY REID PN62
EXHIBIT #FSU2 LETTER FROM MR WEBSTER TO MR WILSON DATED 8 NOVEMBER PN68
EXHIBIT #FSU3 ANZ'S RESPONSE, DATED 6 JUNE 2003, TO ISSUES RAISED IN COMMISSIONER RICHARDS' PROCEEDINGS PN71
EXHIBIT #FSU4 LETTER DATED 18/07/2003 TO MR MATSON FROM MS REID PN78