AG2004/1470, Transcript of Proceedings [2004] AIRCTrans 569 (13 February 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 10792

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

AG2004/1470

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Country Fire Authority and Others for
certification of the CFA Professional,
Technical and Administrative Agreement
2003

MELBOURNE

3.15 PM, MONDAY, 2 FEBRUARY 2004

PN1

MR R. JACKSON: I seek leave to appear on behalf of the Country Fire Authority.

PN2

MR P. ROZEN: I seek leave to appear on behalf of the United Firefighters Union with MR N. REIDY.

PN3

MR N. HENDERSON: I appear for the ASU.

PN4

MR T. O'LOUGHLIN: I appear on behalf of the APESMA.

PN5

THE COMMISSIONER: Any objection to the two applications for leave? No objection. Leave is granted. Mr Jackson.

PN6

MR JACKSON: If the Commission pleases. I appear to seek the certification of an agreement that we say has been reached between my client and the parties present at the table under division 2 of part VIB, a 170LJ agreement. The document, sir, I understand, is before you with the supporting statutory declarations. The reason that I am here and I suspect a lot of the other people are here is that it is our understanding that one of the parties to the agreement, the United Firefighters Union, which has not signed the agreement in accordance with the rules or provided a statutory declaration, has raised some issues.

PN7

Those issues have, in our view, been adequately addressed during the extensive history of this matter which has proceeded since the subject of it at least came before you in July last year and which were addressed in various items of correspondence and various information sessions and meetings that have comprised the negotiating process. Our submission is that under section 170LT the requirements of that section having been met, the Commission should certify the agreement today.

PN8

This agreement was made between the unions on 4 December at a meeting at the offices of the Australian Services Union, and Mr Koletsis from the United Firefighters Union had left our client in no doubt throughout the period leading up to and during the voting process and the members of the United Firefighters Union similarly were left in no doubt that the UFU urged a "no" vote, but that if the vote got up, it wished to be a party to the agreement.

PN9

That, of course, is consistent with the decision that you handed down in July last year in relation to the UFUs interest in the matter. We say that - and I am mindful of the time today that there is no time to go into legal argument - but under Walker's case there is no reason why either this application cannot be certified or agreement be certified, with the UFU, if it no longer wishes to be a party, struck from the text of the agreement; or, alternatively, there is no reason why you cannot waive the non-compliance with rule 48 via rule 6, leave the United Firefighters Union in on the basis of the reasoning in the recent decision of Senior Deputy President Kaufman in the Alcheringa Hostel decision, applying the reasoning of Senior Deputy President Lacy in the Group 4 Securitas decision on the basis that an agreement has been reached between the parties principal that a valid majority, for the purposes of the Act, voted on the basis that the UFU opposed it, but would be a party if the vote got up, that the correspondence from the UFU has never at any stage said "we withdraw" or words to that effect, let alone at a time sufficiently early in the proceedings to be effective to withdraw as in the Alcheringa case, and that the UFU has had ample opportunity, has chosen to be passive in the negotiations, certainly comparatively speaking, that took place during the latter half of last year, that there has been 13 information sessions between 9 and 15 December last year, each of an hour to an hour and a half's duration, at which the UFU position was explained in the terms that I have put it to you now, and accordingly, there has been no misleading of the voting population in the sense of those who are called upon to either approve or disprove of the agreement, and that at the end of that process, given that the Commission under section 110 of the Act should act in equity and according to the merits of the matter, you have power, we say, to certify an agreement that was voted up 264 to 92.

PN10

There is a public interest in the employees concerned receiving a pay rise backdated to October last year and given that a majority of that size voted it up, with members of the UFU not under any illusion as to their union's position, it cannot be the case that, in the words that were used in the Alcheringa decision, "a party should not be able to avoid certification of an agreement by failing and refusing to comply with the rules", and that is our position here. We say that insofar as there are any particular concerns in relation to the operation of the agreement as opposed to whether there is an agreement, they can be dealt with, if they are raised, by the appropriate undertakings being given.

PN11

And we say there is no ambiguity or any other impediment to certification and the issues that have been raised by the UFU, to the knowledge of the CFA in correspondence, for instance, that the UFU was not a party to the award - true it is that the word "award" had been left in the draft agreement from a time prior to the UFUs coming into the picture, but my client is happy to give an undertaking in relation to equal treatment of all union parties under 170LV and to notify all affected employees. And it would be the case that the authority would rely on the Coles v SDA decision. Because of the time I haven't gone - I am doing no more than outlining this, Commissioner.

PN12

The final point that the CFA was aware of is that if it were said that there was some ambiguity in relation to salary structure, we say that there is none on the face of the document and the authorities are clear that you could only move to that point, of course, once an agreement was certified under 170MD, but you have got to identify an ambiguity, and the relevant clause doesn't raise one. It simply refers to the introduction of a seven-level pay structure and the position of the parties is - we certainly understand it is the position of the ASU and APESMA that it is clear who is covered and what the pay points and salary structure is and it is not necessary to have all 420-odd, I think it is, or 240 positions - 420 positions listed in an agreement.

PN13

You can have a banding structure and that is common in enterprise agreements. But in any event, the CFA is anxious, if there is a need, to be in the hands of the Commission in relation to any required undertakings in that regard as well. In essence, Commissioner, that is the position of the CFA. It seeks certification and I do have a memorandum of understanding here in relation to APESMA and CFAs understanding of entry points and progression of engineers and scientists, another memorandum which covers administrative employees providing support for incidents. In other words, there has been work done by the parties to ensure that it is clear in the operation of the agreement just how any and all of the provisions should work. If the Commission pleases.

PN14

THE COMMISSIONER: Yes, perhaps it is appropriate I hear from Mr Rozen and try and gauge the nature of the opposition, if there be opposition, to the certification of this agreement and we will take it from there. Mr Rozen?

PN15

MR ROZEN: Thank you, Commissioner. There is opposition to the certification. The nature of the opposition is that what is purportedly before the Commission is an application for - or, rather, what is before the Commission is purportedly an agreement made pursuant to section 170LJ. As the Commission is well aware, one of the requirements of such an agreement is that it has been approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement. A valid majority is defined in section 170LE.

PN16

The UFUs position is that it is not clear on the face of the agreement which classifications are covered by the agreement. To the extent that it is clear, there are four identified classifications in appendices to the agreement and the material that has been filed before the Commission indicates that considerably more employees than the employees who fall within those classifications were given the opportunity to vote and, in fact, many of them did vote on the agreement. So the point is a simple one. The UFUs principal contention is that there has not been compliance with section 170LJ(2) because there is not a match between the employees, and the classifications into which they fall, that voted and the employees, and classifications into which they fall, covered by the agreement.

PN17

The Commission will see from clause 3.2 of the agreement that it is said to apply to all of the employees who are employed in any of the classifications covered by this agreement. That is obviously a circular scope clause and one is, therefore, left to look at the remainder of the agreement to determine which classifications fall within it and which don't. Obviously, that is a task which requires a close examination of the document but our examination of it reveals that the classifications that are specified are those set out in appendices 1 to 4, which commence on page 19 of the document going through to page 22 of the document.

PN18

Ultimately, it is a question for the Commission as to what the scope of the document is and that scope must be determined not according to the intention of the parties, subjectively expressed, but rather, according to the terms of the agreement. If our contention as to the agreement's scope is correct, then I think it will be common ground amongst the parties that there were people in classifications beyond those four who participated in the vote and, if that is right, then a valid majority within the meaning of section 170LE, as considered in cases such as the Full Court decision in Re AIRC, CFMEU and Others, has not approved the agreement as is required.

PN19

What flows from that is there is no valid application before the Commission and there is no jurisdiction to certify the agreement. The UFU also seeks the opportunity to place before the Commission alternative arguments about the nature of the ballot and the employer's compliance with the other requirements of section 170LJ, in particular, the obligation to take reasonable steps to ensure that the terms of the agreement are explained to all relevant persons.

PN20

In all likelihood, we would need to seek to cross-examine the maker of the statutory declaration, at least the document upon which the CFA relies; that is Ms Lewis. I haven't seen the other stat decs that have been filed. It is unlikely that anything would flow in terms of the need for cross-examination of the makers of those statutory declarations but there will need to be some evidentiary basis upon which we ask the Commission to draw certain conclusions. I would anticipate - - -

PN21

THE COMMISSIONER: Does that arise regardless of the earlier point you made or is it a subsidiary point to the earlier point?

PN22

MR ROZEN: Sorry, sir, I am not sure I follow.

PN23

THE COMMISSIONER: Well, as I understand it, and putting it in very shorthand terms, you are saying that the electorate is wider than the people who are covered by the agreement.

PN24

MR ROZEN: Yes.

PN25

THE COMMISSIONER: And, therefore, there is no valid majority. That is your first point.

PN26

MR ROZEN: Yes.

PN27

THE COMMISSIONER: Your second point is that in some way the explanation given to the employees in respect of the agreement was deficient and you would seek to have further evidence on that.

PN28

MR ROZEN: Yes.

PN29

THE COMMISSIONER: Are those two points connected in any way or are they two separate points?

PN30

MR ROZEN: They are conceptually two separate points. However, the need for the cross-examination of Ms Lewis is, at least in part, applicable to the first point, the bare jurisdictional point, if I could call it that, because the material presently before the Commission - unless there could be agreement between the parties and it may be that it is not controversial what are the range of classifications that voted and so on, but we don't have that material. We has sought it and it hasn't been provided to us.

PN31

THE COMMISSIONER: I am not sure how much of a meeting of the - it might be better if we went off record but I have heard what you have got to say. Are there any further points that you want to make at - I am certainly not going to decide it on the basis of what has been put to me so far.

PN32

MR ROZEN: No, I wouldn't expect - I was just going to add that I don't think it is a long point. I think half a day would suffice for the hearing of it, but subject to what others have to say.

PN33

THE COMMISSIONER: We might just go off the record and go into conference because I suspect nothing that Mr Jackson said was in anticipation of what you have put to me, as I apprehend it.

PN34

MR ROZEN: I don't think it was and, in fairness to Mr Jackson, the point that I have raised here is not one that has been dealt with - - -

PN35

THE COMMISSIONER: Yes. So I think that is why I want to go off the record and just see whether - because who knows? We will go off the record.

OFF THE RECORD

PN36

THE COMMISSIONER: These proceedings are adjourned for 15 minutes.

SHORT ADJOURNMENT [3.40pm]

RESUMED [4.40pm]

PN37

THE COMMISSIONER: Yes, Mr Jackson.

PN38

MR JACKSON: If the Commission pleases, had the benefit of the time that you have generously allowed us, Commissioner, and the position of my client is this, that first of all, as a matter of clarification, the underpinning award to the agreement we say has never covered the issue of classifications in the detail that my learned friend has proposed. It has historically been an award which contains nine levels in its most recent incarnation of pay rates with an agreed work or job evaluation process between the parties, and that same model has been translated by the new agreement from nine into seven.

PN39

Now, as a matter of history, I guess, we say that that award, which goes right back to the early '90s and was simplified, as we understand it, by yourself, sir, has the same ambit as the agreement. The agreement covers those whom the award covers. It is no wider than the award, it is no narrower than the award, and that explains the approach taken in the terminology of the agreement. The other thing that we would want to say is that in the time that Mr Koletsis, then of the UFU, was sitting at the table, the issue was not raised then and if it had have been something where the parties didn't know who the people covered by the agreement were, you would think it would have come up at that time. But we understood that the ASU and APESMA knew who was covered amongst their people and the UFU never raised it as an issue during the meetings from July onwards of last year.

PN40

In addition to those matters of clarification, if there is still an issue preventing the certification of this agreement then we say that there is a solution under section 170LV of the Act and that is for the Commission to accept an undertaking from my client, through me, today in relation to the operation of the agreement. What Mr Rozen has raised is a matter which he says under 170LT provides or at least is a matter that he says goes to valid majority and would give, therefore, in our submission, if he were right, which we say he is not, but if he were, some reason not to certify under 170LT, in particular, 170LT(5), which says if the agreement was made in accordance with 170LJ, which this is, or division 3, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely approved the agreement.

PN41

And as I understand Mr Rozen's argument he says, well, it is insufficiently clear that it was a valid majority because you can't tell on the face of the agreement who was subject to it and therefore were the ones who are required to have genuinely approved it and form the valid majority. We say that there is a way around that and we say that it would be in the form of an undertaking in these or similar terms, which my client will be prepared to give:

PN42

(1) The Country Fire Authority undertakes, within seven days, to provide to the Australian Industrial Relations Commission a list of the classifications or job titles of all 502 employees to whom a ballot paper was supplied; and

PN43

(2) the CFA undertakes within seven days to provide to the union parties and to all affected employees a list of current classifications or job titles that come within the scope of operation of the agreement, and are referred to by clauses 3.2 and 29, being those employees engaged in professional, technical and administrative roles within CFA and who are not otherwise covered by a certified agreement, but excluding executive officers as defined in the Public Service - Management - Act.

PN44

We would be prepared, sir, to make that undertaking for the purposes of section 170LV and in our submission, on the basis of the authorities that relate to 170LV, particularly Coles Myer Logistics v SDA, a decision of Commissioner Richards of October last year, this goes to operation; it is a matter of clarity; it is a matter of making abundantly clear how the coverage clause and classification clause would apply on the ground, and it is a matter of going to LT to show that there was, in fact, a valid majority because you will be able to see, sir, by matching the 502 with their job and then referring to the list of jobs to make sure they are all there that the concern about a valid majority is alleviated.

PN45

In relation to the second issue my learned friend raised, it has been said that there are some issues in relation to the information process in respect of which the UFU wishes to cross-examine Barbara Lewis, Director of Human Resources of the CFA, regarding explanations given to employees. It raises interesting issues about the right to do that but I don't really want to go there. I don't think there is any argument that certainly the UFU would have a right to intervene, even if they aren't a party, not having signed the agreement.

PN46

But, in any event, we say that whatever concern they have should be alleviated by the fact that as I understand it is supported by the other unions, APESMA and ASU, throughout the process there was a frequently asked questions website established; there was a telephone hotline, a dedicated hotline established; there were 13 information sessions at which Ms Lewis spoke at 12 and that when you take into account the process, and it is set out in the materials but I certainly am in a position to provide a chronology of major events that show the exhaustive nature of the process, that should not, given the provisions of section 110, given the public interest in ensuring that these backdated pay rises are flowing through to employees, should not prevent you from certifying the agreement.

PN47

We finally make the point that the issues that have been raised were raised after - insofar as they have been raised previously and I don't think the issue in relation to Barbara Lewis was, I still don't know what it is, but the issues have been raised after the vote. There was UFU involvement and, indeed, presence at information sessions. There was opportunities to raise this in a timely fashion, which may have been early enough, in theory, to attract an Alcheringa-style result, but that is not the case here. The vote was taken and it is only in January that the letters from the UFU started to raise with the CFA various issues which we say were addressed in the correspondence. But insofar as they weren't, we have sought now to address them and would, accordingly, submit that the agreement should be certified.

PN48

If you are against me on that, Commissioner, and you do not consider that that is possible and if, for one reason or another, we are confronted with a position where the clause should be redrafted and put again to the vote, my instructions are that the CFA would want the timetable for that to be as tight as possible within the legislation. It is in the interest of the organisation and the employees that this period of uncertainty be brought to an end and that if there is to be a new vote, it be within a tight timeframe.

PN49

THE COMMISSIONER: Yes. Well, in regard to that latter matter, I don't propose to decide that without having heard full argument about the matters that are in dispute. I know I have made a suggestion in that direction but that wasn't in any way meant to avoid that. Mr Henderson, I think it is probably best I hear from you and Mr O'Loughlin before I hear again from Mr Rozen.

PN50

MR HENDERSON: Yes, thank you, Commissioner. We support the application for certification of the agreement and we rely on the statutory of Darrell Cochrane, which is filed with it. In relation to the controversial matters, we support Mr Jackson's submissions on behalf of the CFA and, simply put, we say that in our submission the undertakings which he proposes are adequate, in our view, to allow the Commission to certify the agreement and we urge the Commission to do that and I think that is all we would say at this point. We would simply reserve our position subject to what UFU may put.

PN51

THE COMMISSIONER: Yes. Thank you. Mr O'Loughlin.

PN52

MR O'LOUGHLIN: Commissioner, the association would only be repeating what the ASU says but just to add to it that directly a part of these negotiations and especially mindful of some of the things Mr Jackson has put here this afternoon regarding UFUs participation in the negotiations, on that basis we would support the submission that has been put by Mr Jackson. If the Commission pleases.

PN53

THE COMMISSIONER: Yes. Thank you. Mr Rozen, I am not seeking to close this matter off in any sense at all and I think, as I indicated off record, I propose to make transcript available and give you the opportunity to consider what has been put and take further instructions and then make a submission at a later date, but feel free to make some submissions at this point if you wish.

PN54

MR ROZEN: I should just indicate that I do undertake to seek further instructions on the matters that have been put.

PN55

THE COMMISSIONER: Very good. We might go off record to discuss further programming of this matter.

OFF THE RECORD

PN56

THE COMMISSIONER: These proceedings will adjourn until 10.15 am on Wednesday, 11 February unless, of course, I am advised by the parties that they don't wish to proceed with the agreement that has been lodged under the reference AG2004/1470. The proceedings are adjourned to that date.

ADJOURNED UNTIL WEDNESDAY, 11 FEBRUARY 2004 [4.55pm]