AG2004/1560, Transcript of Proceedings [2004] AIRCTrans 750 (26 February 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 6137
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2004/1560

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Alcheringa Hostel Incorporated
for certification of the Alcheringa Hostel
Incorporated Employment Agreement 2004

MELBOURNE

9.09 AM, MONDAY, 16 FEBRUARY 2004

PN1

MR I. DOUGLAS QC: I seek leave to appear with my learned friend MR F. TURNER for the applicant.

PN2

MR R. NIALL: I seek leave to appear as counsel for the Australian Nursing Federation which seeks leave to intervene in the application.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted to counsel to appear.

PN4

MR NIALL: If your Honour pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: What is the attitude of the employer to Mr Niall's application for the leave for the ANF to intervene Mr Douglas?

PN6

MR DOUGLAS: As I understand it, your Honour, intervention is sought pursuant to section 43(2)(a) of the Act.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MR DOUGLAS: Further, your Honour, I am aware of the fact that a certificate with respect to section 170LK(4) that is a certificate pursuant to subsection 170KA(1)(a) was granted by the Registrar, Deputy Registrar on 23 December.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. I haven't seen it but - yes?

PN10

MR DOUGLAS: It does exist your Honour, and my friend, for the record, I presume, will provide your Honour with a copy.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR DOUGLAS: The only query I have, your Honour, is whether the person who the certificate was issued in relation to still remains an employee of Alcheringa. If my learned friend says that person remains an employee, then I don't object to the intervention.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Niall?

PN14

MR NIALL: Can I first tender to your Honour a certificate as to request a representation invitation issued by the Deputy Industrial Registrar on 23 December 2003?

EXHIBIT #ANF1 CERTIFICATE DATED 23/12/2003 ISSUED BY DEPUTY INDUSTRIAL REGISTRAR

PN15

MR NIALL: If your Honour pleases I am instructed that request pursuant to which that certificate was issued has not been withdrawn and I am also instructed that the employee in respect of which the certificate relates is also an employee currently at Alcheringa. That being so, your Honour, your Honour is in my respectful submission constrained to grant leave to the union to intervene pursuant to section 43(2)(a).

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Niall. Leave is granted.

PN17

MR NIALL: If your Honour pleases.

PN18

THE SENIOR DEPUTY PRESIDENT: Now, gentlemen, I have had a quick look at the file and the statutory declaration of Ms Rough, together with its attachments. There is a fair bit to it obviously. I listed the matter as soon as practical after receiving the application. How are we to proceed?

PN19

MR DOUGLAS: Well, your Honour, as I understand it my learned friend intends to make an application for this matter to be adjourned pending the decision on the appeal against your Honour's decision of last year. Your Honour, that appeal was filed on Friday, notice of appeal, and I presume my learned friend will provide you with a copy of that for the record.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps Mr Niall will make his application then Mr Douglas.

PN21

MR DOUGLAS: Yes, your Honour.

PN22

MR NIALL: Yes, my learned friend - that is in fact the case, your Honour. I apply for your Honour to adjourn the proceedings. Your Honour will recall on 23 January of this year, your Honour delivered judgement on the application of the ANF for certification of an agreement under division 2. That was the LJ agreement by which your Honour dismissed the application for certification. On Friday I am instructed the ANF filed a notice of appeal from your Honour's order and decision and I can hand up a copy of the notice of appeal that was filed on Friday, your Honour.

EXHIBIT #ANF2 NOTICE OF APPEAL

PN23

MR NIALL: The position is this, your Honour. The union wishes to prosecute its appeal from your Honour's judgement with a view to having the LJ agreement certified. In my submission, for two reasons, the matter - this matter, that is the application to certify the LK agreement will be adjourned. The first reason is that if your Honour was to proceed to certify this agreement, the LK agreement, that would significantly affect and reduce the efficacy of the appeal because the agreement first in time, to paraphrase, take precedence. And that is provided for in section 170LY.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR NIALL: Your Honour, section 170LY(1) provides while a certified agreement is in operation subject to this section it prevails over an award or order of the Commission to the extent of any inconsistency with the award or order and it has not effect to the extent of any inconsistency with another agreement certified before it whose nominal expiry date is not passed. Now what would happen, your Honour, if we are right in our appeal on the LJ and the Commission we expect ought to have either certified it, or taken steps to, but in the meantime the LK agreement certified it would lose the efficacy of the appeal significantly.

PN26

And in my submission that is an appropriate basis for the adjournment of these proceedings to allow the party to prosecute its appeal brought in accordance with the Act is the first point. The second and related point, your Honour, is that it is clear that the agreement, the LK agreement was put to the employees at Alcheringa on the basis that it would not be operative if the LJ agreement was certified. That is it was always put and could reasonably be read to be put as a fall back position in the event that the Commission doesn't certify the LJ.

PN27

THE SENIOR DEPUTY PRESIDENT: Where do I see evidence of that?

PN28

MR NIALL: If your Honour goes to the statutory declaration which has been filed and in the time that your Honour set, your Honour might have seen an attachment H to that, which is the way the agreement was explained to the employees at Alcheringa. I won't take you to the principal part of the statutory declaration but it says that this was the explanation provided to employees. If your Honour goes to attachment H, paragraph 1 and it says, paragraph 1:

PN29

Alcheringa recently opposed certification of the LJ. Many of you gave evidence...

PN30

Then skipping a paragraph:

PN31

If the LK agreement is certified by the Commission, it will take the place of the Nurses and Health Services Award which are currently applied to you. This agreement can only become operative if the Commission does not certify the LJ agreement.

PN32

So it was clearly put and clearly is to be read as saying you can vote for this agreement comfortably even if you support the LJ agreement because this won't operate or this will only become operative if the LJ agreement doesn't kick in. Now, the position is, at first instance, with respect, your Honour, is dismiss the application for certification but the processes in relation to that are continuing and will be prosecuted with all due haste by the union. So in my submission, for those two reasons - one is that it would significantly affect the utility of the appeal and, two, the agreement was put forward only on the basis that it would be certified if the LJ agreement was not certified, and that process not being complete, in my submission, it would be appropriate to adjourn these proceedings to allow the appeal to be prosecuted.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, I take it that this notice to the employees was put out pending my decision, was it?

PN34

MR NIALL: Your Honour's decision was 23 January and this was distributed, I think, in December but I - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MR NIALL: - - - can tell your Honour that. I am - - -

PN37

MR DOUGLAS: It was prior to your Honour's decision, certainly, your Honour. Yes.

PN38

MR NIALL: 24 December, your Honour, so it was prior. Now, on the other side of the ledger, in our submission, little or no prejudice would flow from an adjournment of these proceedings. It is clear that, firstly, little time has elapsed since the agreement was made. Secondly, to the extent that the employees might be prejudiced it is clear that the agreement itself contemplates back pay from February 2003 so they would not be prejudiced if there was a short adjournment to allow the appeal to proceed.

PN39

In terms of the employer we can't perceive there would be any prejudice which would outweigh the two - three considerations which I have put to your Honour, that is, the appeal, the way that it was put forward, and secondly, the absence of prejudice to employees. So for those reasons, your Honour, we would submit your Honour that your Honour ought to adjourn these proceedings pending the appeal. If your Honour pleases.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Niall. Mr Douglas?

PN41

MR DOUGLAS: Your Honour, we oppose the adjournment. Can I say this very briefly. In terms of that paragraph in attachment H, the letter that went to the employees, the Commission in fact did refuse to certify the LJ agreement. Your Honour, we submit that section 170LT(1) is paramount in relation to this matter. It provides that the Commission must certify this agreement if certain conditions are met. We say those conditions are met. In fact there is a valid application before your Honour. Section 170L of the Act provides that an object of this part, and that is part VIB, division 1, the relevant part of the Act - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Sorry, what section is that again?

PN43

MR DOUGLAS: 170L, your Honour, the object section.

PN44

The object of this part is to facilitate the making and certifying by the Commission of certain agreements, particularly at the level of a single business or part of a single business.

PN45

Section 170LA(1) provides:

PN46

The Commission must, as far as practicable, perform its functions under this part in a way that furthers the objects of this Act and, in particular, the objects of this part.

PN47

Object 3(d) provides for agreements with respect to wages and conditions of employment being made between employers and employees at the workplace level. And section 170LA(3), of course, removes the Commission's section 111(1)(g) power with respect to public interest as far as agreement of this kind are concerned. Your Honour, could I just take you to the wording of LT. 170LT(1) provides:

PN48

If an application is made to the Commission in accordance with division 2 or 3 to certify an agreement...

PN49

We say such an application has been made and that it is a valid application. The section continues:

PN50

The Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met.

PN51

And that provision, we submit, is paramount in these circumstances. We say that the requirements of this section are met. Or we can demonstrate that they are in fact met and that in those circumstances, your Honour, there is no basis for an adjournment to be granted.

PN52

THE SENIOR DEPUTY PRESIDENT: Mr Douglas, if the matter is to proceed, how would you envisage it proceeding? It obviously won't be concluded before 10 o'clock this morning when I am sitting on the Full Bench.

PN53

MR DOUGLAS: It depends, your Honour, on the attitude that my learned friend takes to the process that would follows and that is to say the certification process.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR DOUGLAS: But we are in your Honour's hands as to time. If your Honour can't sit beyond 10 o'clock then at some other time today that might be convenient or some other time. But we would press for the process to continue as soon as possible.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes, I gather from the correspondence from the ANF that it has a good deal to say about whether or not the agreement is capable of certification and whether or not it meets the no disadvantage test. But perhaps I should hear from Mr Niall as to how he would expect his case to proceed.

PN57

MR NIALL: That is so, your Honour. We do have quite something to say and we also would seek to cross examine Ms Rough on the statutory declaration as to matters pertaining there. It wouldn't finish before your Honour has his obligations on the Full Bench this morning at 10.

PN58

THE SENIOR DEPUTY PRESIDENT: No, that is clear.

PN59

MR NIALL: That is clear, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: How would you see the matter proceeding if it were to proceed?

PN61

MR NIALL: If it was to proceed I would anticipate that my learned friend would seek to rely on the statutory declaration.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR NIALL: We would then cross-examine Ms Rough. That would take some time.

PN64

THE SENIOR DEPUTY PRESIDENT: But any idea of how long that would take because I may be able to proceed after lunch if I choose - well, if I decline your application for an adjournment?

PN65

MR NIALL: It is difficult to say, your Honour, but perhaps in the order of half an hour to an hour.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. Do you intend to call any evidence at all?

PN67

MR NIALL: No, your Honour. No, I don't your Honour. And then put submissions to your Honour which would take half an hour or so.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes.

PN69

MR NIALL: While I am standing your Honour can I just briefly reply to one thing my learned friend said in relation to section 170LT?

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, of course.

PN71

MR NIALL: What we say, your Honour, is - Mr Douglas says that they have got an agreement. And we say, well, we had an agreement first in time and we had it and it ought to have been certified. Now, that didn't find favour with your Honour but we do seek to explore our rights under the Act.

PN72

THE SENIOR DEPUTY PRESIDENT: And you say LT applies equally to your agreement as it does - - -

PN73

MR NIALL: Precisely.

PN74

THE SENIOR DEPUTY PRESIDENT: - - - to Mr Douglas'. Yes.

PN75

MR NIALL: Precisely, your Honour. And if your Honour were to proceed on the LK, your Honour would, we suspect, be cutting us off at the knees without having our opportunity to exhaust the provisions under the Act. And your Honour will see from the notice of the appeal this doesn't raise simply a question of fact or - it raises, in my respectful submission, some important issues about the ability of parties to withdraw from the agreements. Your Honour distinguished his Honour, Senior Deputy President Lacy's decision but there hasn't been a Full Bench decision on that and it is, in our respectful submission, the sort of serious matter which would then well entertain an application for leave. And it is not simply, on any stretch of the imagination, a holding provision or a spoiling provision.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes

PN77

MR NIALL: They are serious matters which we would seek to put forward to a Full Bench. They are the matters, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks, Mr Niall. Mr Douglas, anything else?

PN79

MR DOUGLAS: Yes, your Honour. If your Honour decides to proceed, then we would ask for time to be put aside or made available this afternoon. I have one additional statutory declaration to tender and maybe I should provide that to your Honour and to my learned friend now. It is a declaration of David Hutchins.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes.

PN81

MR DOUGLAS: It is in. I am sorry. Well, David Hutchins is present. That declaration goes to the conduct of the ballot. If the matter does proceed this afternoon could I request for the sake of his convenience - he is present in court - that his cross-examination, if any, be dealt with first.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR NIALL: Your Honour, I can indicate for the convenience of, hopefully, the Commission and the witness, we don't seek to cross-examine Mr Hutchins.

PN84

MR DOUGLAS: Thank you.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN86

MR NIALL: So, your Honour, we would be content for that, at the appropriate time, to be tendered and the witness can be excused.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I would like to think about the matter of the adjournment. If we resume at 10 to 10 that should give me sufficient time to give you a decision on the question of the adjournment and to vacate the Court before the Full Bench convenes. So we will adjourn until 10 to 10.

PN88

MR DOUGLAS: If your Honour pleases.

SHORT ADJOURNMENT [9.28am]

RESUMED [9.54am]

PN89

THE SENIOR DEPUTY PRESIDENT: I have decided to grant the adjournment. It is clear that if I were to certify the LK agreement, it would tend to make the appeal against the LJ agreement somewhat fruitless. It would certainly negate the effect of a successful appeal were the Full Bench to certify the agreement that was made under LJ, but, more importantly, I have regard to attachment H which, quite properly, at the time indicated that the LK agreement would only operate if the LJ agreement was not certified.

PN90

Having regard to the events that have taken place, were I to certify the LK agreement prior to the appeal and the appeal was successful, the information to the employees would not be accurate, again, I emphasise, due to no impropriety whatsoever on behalf of Alcheringa, and that might of course leave employees feeling aggrieved in that the LK agreement would operate, despite the LJ agreement having been certified. So in those circumstances, it seems to me appropriate to adjourn this matter. As Mr Niall points out, if the LK agreement is certified, employees will not be disadvantaged, having regard to the way in which it will commence operation.

PN91

I can indicate that during the adjournment I spoke with the President and told him of this matter and the urgency of listing an appeal. He has taken that on board. It is unlikely it would appear that the appeal would be heard in March but it is not impossible. It is more likely, however, that the appeal will be heard in April. So I will adjourn the Commission.

ADJOURNED INDEFINITELY [9.57am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ANF1 CERTIFICATE DATED 23/12/2003 ISSUED BY DEPUTY INDUSTRIAL REGISTRAR PN15
EXHIBIT #ANF2 NOTICE OF APPEAL PN23