C2004/1767, Transcript of Proceedings [2004] AIRCTrans 670 (19 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS

O/N 9213
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2004/1767

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

ROTARY OFFSET PRESS

Notification pursuant to section 99 of the Act
of a dispute re alleged threat to terminate
employees for not signing Australian Workplace
Agreements

SYDNEY

2.38 PM, MONDAY, 9 FEBRUARY 2004

PN1

THE COMMISSIONER: May I have the appearances, please?

PN2

MS A. PERKINS: If it please the Commission, I appear for the Printing Division of the AMWU, New South Wales, and I have with me MR F. WHITE, Father of the Chapel, Rotary Offset Press Pty Limited.

PN3

MR J. TAMPLIN: Commissioner, I appear for the Printing Industries Association of Australia, a member company of Rotary Offset Press Pty Limited and accompanying me today is MR B. HANSEN and MR G. HALLABY from the company.

PN4

THE COMMISSIONER: Thank you. Yes, Ms Perkins.

PN5

MS PERKINS: Thank you, Commissioner. This is the AMWUs application re threatened dismissal of employees for failure to sign Australian Workplace Agreements. Commissioner, just a brief history of the matter, we have two members, Geoffrey Gallan and Matthew Harr, who just over three months ago were employed at Rotary Offset as printers on the night shift. At the time of their employment, I am informed by the members, they were required to sign as a condition of getting the job a document saying that they would agree to sign an AWA at a later date.

PN6

At the time of being asked to sign this document as a condition of starting at Rotary Offset, the members were aware that (1) they had not sighted the terms and conditions, they had not sighted the AWA at all, the AWA was not shown to them at the date of the commencement of their employment. It was shown to them at a later date but on the date they were actually asked to make that commitment, it was a commitment to a document sight unseen, they were not aware of the terms or the conditions of that AWA. In fact, in the case of one of the members, I believe that the AWA has gone from an original document that had a length of 12 months to a length of, I believe, two years now, so the time that the document has been in his possession has actually changed.

PN7

The members were offered no cooling-off period, no opportunity for any legal advice or representation, nor were they made aware of their rights as far as representation or cooling-off period and, as I said, they had not sighted at the time the terms and conditions of these AWAs. The AMWU believes that no one could consider it reasonable to extract a promise from someone to sign a document that was sight unseen. They signed this document saying that they would sign an AWA at a later point, though they had not seen the AWA.

PN8

Some months went by and they both passed their three months probationary period and they were found to be acceptable and nothing was said. On 2 February this year the AMWU held a mass meeting which endorsed the serving of a log of claims on the company under section 170MI of the Act for the purpose of making an enterprise agreement with Rotary Offset. The next morning we served the company with the notice of intention to reach an agreement, if I could hand that notice up, and I will make a copy for my files. Within a day or two of the company receiving this notice I was contacted by the delegate and the shift concerned and told that the issue of the AWAs had re-emerged and that the members were being put under pressure to sign the AWA. They have said to me that they feel if they don't sign the AWA their employment will be terminated. They don't wish to sign the AWA. They wish to be part of the collective agreement that the majority of members at Rotary Offset have endorsed the union to pursue. The members have elected a consultative committee and they very much want to be part of that.

PN9

The union has a view that the employees are current employees of Rotary Offset for the purposes of section 170WG and the company by putting any pressure or duress on these members is in breach of section 170WG of the Workplace Relations Act which says that a person must not apply duress to an employer or employee in connection with an AWA or ancillary document. We say this on the basis of standards which I would take the Commission to, I don't actually have it here, CPSU v Employment National, I believe that string of cases was called I think the Sanka Litigation, a series of cases of CPSU v Employment National, which basically upheld the position that you cannot threaten an employee when employed with termination for not signing an AWA and this is indeed in breach of section 170WG.

PN10

The AMWU is seeking today reassurance for our members and the AMWU that they will not be in any way injured in their employment or harassed over their refusal to sign these AWAs. We would be seeking to have these assurances on transcript, I think that would put our members' minds at rest. Obviously if these reassurances cannot be given the AMWU will be making immediate application under section 127 of the Act for orders re the threatened dismissal of these employees.

PN11

THE COMMISSIONER: Thank you. Yes, Mr Tamplin.

PN12

MR TAMPLIN: Thank you, Commissioner. I would like to pass up a contract of employment for Mr Geoffrey Gallan and I will pass a copy over to my friend. I also hand up a copy of Mr Matthew Harr's contract of employment. We do not have the signed copy, it is in another file. I would seek to tender those in this matter.

PN13

THE COMMISSIONER: I will mark these as exhibits, exhibit T1 in the case of Mr Gallan and exhibit T2 in the case of Mr Harr.

EXHIBIT #T1 CONTRACT OF EMPLOYMENT OF MR G. GALLAN

EXHIBIT #T2 CONTRACT OF EMPLOYMENT OF MR M. HARR

PN14

MR TAMPLIN: Thank you, Commissioner. If I could take you to Mr Gallan's document which is dated 13 October, it states in general the position that is set out and the reporting lines would be to the Production Manager who will be responsible for the completion of all production and technical aspects assigned to him. On the next page is says wage confidentiality, annual leave, probationary employment of three months and at the base of it it points out AWA, under the heading, AWA. It says:

PN15

Your employment conditions are covered in the AWA to be signed by yourself as agreed between yourself and RAP being Rotary Offset Press. Any variation to the AWA is specified in this agreement, in this employment contract. This offer of employment is conditional upon your acceptance of the attached AWA and the office of the Employment Advocate's ratification of the AWA. Please note that you must consider the terms of the AWA for a minimum period of 14 days before signing the AWA. This is a legal requirement. This means that the AWA cannot be signed until 30 October 2003.

PN16

If I could take you to the next page, sir, it says:

PN17

Geoffrey, please acknowledge your acceptance of these terms of contract and accept my warmest wishes welcoming you to Rotary Offset Press Group on a permanent basis.

PN18

It is signed by the Managing Director and then signed by Mr Gallan and dated 16 October 2003, three days after the date of the correspondence. It says underneath:

PN19

Enclosed, one copy of this letter to be signed and returned; two job description, one copy to be signed and returned; AWA to be signed after two weeks and returned for approval; AWA information statement; employee handbook, back page to be signed and returned.

PN20

It is the same process with Mr Harr, if I could take you to exhibit T2, Commissioner, it says in the middle of the page:

PN21

Indicative salary package, based on the approved Australian Workplace Agreement, AWA, night shift loading 30 per cent additional.

PN22

If I could take you to the next page, it says it in identical terms regarding the AWA again, and the next page, we do not have the signed original but we do have it available, it is in his file and the file is sealed at the moment. It states under "Enclosed" the same thing as in the previous contract.

PN23

Commissioner, the issue is, when the company became aware that the employees had not returned their signed AWAs it sent them correspondence. I will pass up this correspondence and hand copies over to my friend. If I could take you to the one marked Matthew Harr, ROP memo dated 4 February:

PN24

In going through our employee records I notice we do not have a signed copy of your Australian Workplace Agreement on file. The AWA was issued to you with your letter of employment on 29 October 2003, copy attached. I have attached two copies of your current AWA to this memo. Please sign and return them to me by 5 February 2004. Do not hesitate to contact me on..... if I can be any assistance in this or any other regard.

PN25

At the time of the engagement of the employees they were given the hand-out sheet by the company regarding AWAs and their provisions and it was done prior to signing the contracts of employment. If we take a purely contractual argument, there has been an offer, there has been consideration between the parties to that offer, something of worth was exchanged between the parties, we say there has been very clear certainty to the point where it is not vague, it is not unclear, it is certain as to the terms of employment, then there has been acceptance as to those terms of employment. This has been endorsed by both employees in their signatures to the contracts.

PN26

Now that these employees are asked to complete the terms of contracts, very conveniently or just by coincidence we suddenly find out that they want to change those terms of contract and become part of the bargaining group. From the point of view of a contract, an employment contract, which this is, they are bound by the terms of it. If they don't complete the terms then they are in breach of the contract and it is open to the company to pursue that matter, that is, terminate the contract of the employees. It is open to them to do that. The alternative is that they complete the terms of the AWA and hand it back to the company as they agreed to in the initial contract. It is as simple as that.

PN27

We say, Commissioner, that as far as being in breach of the provisions of the Act, section 170WF, it says hindering AWA negotiations, 170WF(1):

PN28

A person who is not a party to negotiations relating to an AWA or ancillary document must not use threats or intimidation with the intention of hindering the negotiations in the making of the AWA or ancillary document. For this purpose party to negotiation includes a bargaining agent.

PN29

We have not been informed as to whether the union is acting as a bargaining agent nor have we got anything in writing from any of the employees. Further, in 170WG(1):

PN30

No duress on employer or employee. A person must not apply duress to an employer or an employee in connection with an AWA or ancillary document.

PN31

Now, the threat of a 127 order could reasonably be called intimidation, given the signed conditions of employment of the employees, and all we are seeking that they do is complete that contract of employment and the conditions of their employment. The threat to take us to a 127 order is in our submission intimidation.

PN32

THE COMMISSIONER: Who made that threat?

PN33

MR TAMPLIN: My colleague did in her opening submissions. If the Commission pleases, unless there are some further questions you wish to ask, perhaps it would be worth while going into conference on the matter.

PN34

THE COMMISSIONER: I think it might be.

PN35

MR TAMPLIN: Just for completeness, Commissioner, my friend referred to a matter that she relied upon with the CPSU and I have that, but there is a significant judgment by Kenny J of the Federal Court, the Australian Workers Union v BHP Iron Ore Pty Limited. It sets out quite clearly in our submission that we are pretty close to the mark in what was found to be reasonable in that position, if the Commission pleases.

PN36

THE COMMISSIONER: Thank you. Yes, Ms Perkins.

PN37

MS PERKINS: Commissioner, I have been informed by the members in question that the AWA was not attached to the first letter that they were asked to sign, that they actually received the AWA some days and in one case one week after they were asked to sign the document, so at the time of signing this document, one dated the 30th for Geoffrey and the other one dated the 29th for Matthew, they informed me, the AWA was not attached.

PN38

I would also point out, Commissioner, that the time for the signing of the AWA was in one case two weeks after 13 October and in the other case two weeks after 29 October. I think that everyone would agree that that time has well and truly expired without the AWAs being pursued by the company. The AWAs were resurrected a long time after the expiry date for them to have been signed, for them to have been valid.

PN39

I haven't had a lot of experience with AWAs but I would presume that as with all agreements, you have to have a cooling-off period and it has to be signed within a certain time. I don't know what the boundaries are on that but I would certainly say that there was no pursuing of that after the two weeks had expired. They were only resurrected, as I said the timetable speaks for itself, 24 hours after the union served under section 170MI of the Workplace Relations Act.

PN40

I have also been informed that with Geoffrey's AWA which he did get about a week after he had signed this letter, so he signed this letter without signing that AWA, that the original AWA he had been given was for 12 months and that the AWA that has been resurrected in the last week is actually for two years. I would put that going from a 12-month to a two-year AWA substantially changes that. I am not aware that that is the situation in Matthew's case.

PN41

I would have to take issue with the idea that somehow I have threatened or intimidated anyone. I think the AMWU has remedies available to it through this Commission and I think exercising our right to access those remedies can hardly be threats or intimidation. Certainly as far as talking to the members involved are concerned, there has been no interference on my part or threats of intimidation, I have simply had two very frightened men come to me and ask, what do I do, I don't want to sign this, I had to sign that document to get a job, it's tough out there, I didn't see it at the time, I don't want to sign it, I'm a member of the union, I want to be part of the collective agreement.

PN42

I have listened to them and taken their concerns on board and said that I would get this issue in front of this Commission as quickly as possible to see if we could get them some reassurances. I really don't think I have acted in a threatening or intimidating manner by trying to get their concerns in front of this Commission. Thank you, Commissioner.

PN43

THE COMMISSIONER: Mr Tamplin, you mentioned two options. Are they the only two options in your company's list? There is a third.

PN44

MR TAMPLIN: That is to do nothing.

PN45

THE COMMISSIONER: Yes.

PN46

MR TAMPLIN: Then why have a contract of employment. On the one hand my friend says it wasn't a contract of employment because they didn't get the agreement from later on, but they still signed it. The wording was "this is conditional on an AWA." I accept the point, I accept that, but they still signed it and it's not as if it is Philadelphia lawyer fine print stuff, it is three full clear paragraphs. In one instance it even says it under his salary.

PN47

If I remember my days in the trade, sir, I always took a great deal of interest in the salary and what was written around it and I would be amazed if a person hasn't read it based on the approved Australian Workplace Agreement, in particular Mr Matthew Harr, and the other gentleman, he has signed it and dated it.

PN48

THE COMMISSIONER: I think in the circumstances I will adjourn into private conference.

NO FURTHER PROCEEDINGS RECORDED [3.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #T1 CONTRACT OF EMPLOYMENT OF MR G. GALLAN PN14
EXHIBIT #T2 CONTRACT OF EMPLOYMENT OF MR M. HARR PN14