AG2005/3791, Transcript of Proceedings [2005] AIRCTrans 1093 (6 May 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 11404-1

COMMISSIONER TOLLEY

AG2005/3791

APPLICATION BY TOLL NORTH PTY LTD T/AS TOLL REFRIGERATED (VICTORIA) & TRANSPORT WORKERS' UNION OF AUSTRALIA-VICTORIAN/TASMANIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3791)

MELBOURNE

9.56AM, THURSDAY, 28 APRIL 2005

Adjourned sine die

PN1

MR S AMENDOLA: I seek leave to appear on behalf of the company in relation to this application.

PN2

MS H RYALL: I appear for the Transport Workers' Union in this matter.

PN3

THE COMMISSIONER: I presume that there is no opposition to leave?

PN4

MS RYALL: No, sir.

PN5

THE COMMISSIONER: Yes. Leave is granted Mr Amendola.

PN6

MR AMENDOLA: If the Commission pleases?

PN7

THE COMMISSIONER: Yes. Mr Amendola?

PN8

MR AMENDOLA: This is an application to certify an agreement pursuant to Part VIB Division 2 of the Workplace Relations Act. The agreement being the Toll Refrigerated (Victoria) Certified Agreement 2005. There are perhaps a number of issues in relation to it, Commissioner. The first is that the application was not filed within the 21 days specified pursuant to section 170LM and that is a matter to which I will come to in due course and, Commissioner, the other matter of course about, which in a jurisdictional sense, the Commission has to be satisfied before it certifies an agreement is that the terms of section 170LI are met or what I could perhaps compendiously describe is that the Electrolux issues are dealt with.

PN9

THE COMMISSIONER: Yes.

PN10

MR AMENDOLA: There are a number of clauses, Commissioner, where that issue may arise, and what I would seek to do is perhaps to refer the Commission to a Full Bench decision of the Commission in the Schefenacker case which sets out the approach that the Commission ought to take in relation to dealing with the certification of such agreement and then go to the clauses that I perceive may be an issue and to address you in relation to those.

PN11

THE COMMISSIONER: Yes.

PN12

MR AMENDOLA: If I can provide the Commission with a copy of the Schefenacker decision?

EXHIBIT #A1 DECISION OF SCHEFENACKER

PN13

MR AMENDOLA: That decision dealt with a number of agreements which had either been certified or not certified where there had been appeals made to a Full Bench of the Commission. The Full Bench in that particular case sought to look at the Electrolux decision and to seek to reconcile it in terms of the way the Commission ought to approach applications for certification. At paragraph 47 of the decision, Commissioner, which is at page 15 of the Print that I have given to you, it set out in summary, a very good summary if I may say so, the way in which the Commission ought to approach applications for certification.

PN14

Rather than necessarily read through it, I would just let the Commission go through it at its own pace. But it makes it clear that there are jurisdictional issues pursuant to LI, and that the Commission has no jurisdiction to certify an agreement unless the agreement answers to the description in LI, it sets out in subparagraph (b) what it is that has to meet that jurisdictional prerequisite. A test is then set out in subparagraph (c), and subparagraph (d) refers to those sorts of provisions, which, whilst they may not in a direct sense pertain, would be seen as being something that can remain in an agreement without giving rise to LI issues. And the approach that the Commission ought to take is also set out in subparagraph (e), that one has to look at it in the context of the agreement as a whole, and any relevant evidence.

PN15

The point is made in subparagraph (f) that the mere fact that a clause confers some rights on a union does not of itself lead to the conclusion that the clause does not pertain. In this particular agreement, Commissioner, there are a number of clauses to which I think I am bound to take you. The first of those is clause
6, which is under the heading of, Contracting Out. The relevant parts of clause
6 to which I need to address the Commission, are 6.2 and 6.4, which refers to a situation where the company seeks to contract out and, in effect, seeks to regulate the basis upon which the employees and contractors ought to be remunerated if there is such contracting out.

PN16

In the Schefenacker case, Commissioner, there was a clause in very similar terms, maybe not quite as direct but in very similar terms, it was considered by the Full Bench, and the relevant clause is set out at paragraph 71 of the Schefenacker decision at page 26, and it is 17.6 where the relevant clause says:

PN17

The Company will instruct the labour hire agencies to increase the wage rate of their employees working at the Schefenacker Vision Systems Australia by the same percentage that is listed in this Agreement.

PN18

So, whilst in that situation, Commissioner, it really was relating to the increase in the wage rate as opposed to the equivalent as it were, the Full Bench, in its considerations, came to a conclusion at paragraph 83, which is on page 29, it had referred to a previous decision, and if I can take you to the second sentence of paragraph 83, the Full Bench said:

PN19

The intent of clause 17.6 is that employees of labour hire agencies working at Schefenacker should receive the same increase as the Schefenacker employees will receive under the agreement. This is sought to be achieved by obliging Schefenacker to give that directly to the agencies.

PN20

Whether that means will be effective or not, the intent is that the relationship between the cost of labour supplied by the agencies, and the cost of labour of Schefenacker's employees will be relatively the same after the agreement as it was before. For that reason we think that the subclause pertains to the relationship between Schefenacker and its employees. It directly concerns the security of employment of employees covered by the agreement.

PN21

THE COMMISSIONER: Yes. 6.4, in the agreement before the Commission, is not as direct, is it? It talks about best endeavours, which you and I might have when we get out of bed, but are often thwarted throughout the day.

PN22

MR AMENDOLA: That is so, Commissioner, it is a best endeavours clause. It is in the same genus though, I would say.

PN23

THE COMMISSIONER: Yes. Well, yes. Well, in the area anyhow.

PN24

MR AMENDOLA: Commissioner, it is a bit perhaps problematic, there is a decision of the Federal Court in Wesfarmers, that suggests that clauses of this nature don't pertain. But the latest Full Bench authority, I would say, is Schefenacker, which would tend to a view that in a situation where you have an attempt to equalise the payment made to subcontractor employees to those that are made to the direct employees, that that is seen as pertaining.

PN25

THE COMMISSIONER: Yes. Well, on the reading of the draft as it was before the Commission, before the matter was called on for hearing, I base my sense of these clauses, as I always do, as they take my eye. And I was aware of Schefenacker, and didn't feel that 6.4 transgressed that in any way, so I am comfortable with it.

PN26

MR AMENDOLA: If the Commissioner pleases.

PN27

THE COMMISSIONER: As to the Federal Court, well, one of these days they might do some real work.

PN28

MR AMENDOLA: There is an appeal in that particular case, as it stands, I feel Commissioner, I feel as I deal with all of the matters or the provisions in this, that I am duty bound to raise these matters.

PN29

THE COMMISSIONER: No, I don't quibble with that, but I just make my comments clear in respect to 6.4 in any event.

PN30

MR AMENDOLA: I understand, Commissioner. The next provision is in clause 9, and specifically, in clause 9.1 and 9.4, if I can deal with 9.1 first. The clause says:

PN31

The company will take all reasonable precautions and exercise due diligence to ensure compliance by management, employees and contractors to the provisions of laws relating to road transport.

PN32

In so far as it is a clause that asks the company to take reasonable precautions and exercise due diligence in relation to management employees it is unexceptional in terms of whether or not it pertains. On the issue of whether or not a clause in those terms in respect to contract relevantly pertains, may well be an issue. On its face it doesn't readily pertain.

PN33

THE COMMISSIONER: However, given the latter-day publicity about some transport companies being fined because of transgressions of their employees, I think it might pertain.

PN34

MR AMENDOLA: Well, Commissioner, I understand. As I said, I just feel duty bound to raise the issue. Transport companies use a mixture of employees and contractors, and presumably one would want the same standard applied, but it may well be said that the same standard of caution, in any event, applied. But it may be said that in respect of contractors, it doesn't obviously pertain, but if the Commission believes that in the broad sense it pertains, I am content with that.

PN35

THE COMMISSIONER: Yes.

PN36

MR AMENDOLA: 9.4, Commissioner, is the next clause. It says:

PN37

The company agrees to participate in industry discussions concerning freight rates.

PN38

That, on its face, I wouldn't think pertains, but it's almost an aspirational clause. If I can go back to the Schefenacker decision, the Schefenacker decision did talk about, at paragraph 47, subparagraph (d)(iii):

PN39

Provisions that do not pertain to the relationship but they are so trivial they can be disregarded -

PN40

THE COMMISSIONER: Yes, the second half of that- - -

PN41

MR AMENDOLA: Yes:

PN42

- some aspirational provisions which do not impose any enforceable legal obligations on a party to the agreement might fall into this category.

PN43

It may be said that, participating in discussions, I can understand why there might be a desire to participate in discussions about freight rates for reasons in relation to remuneration but I would submit that that is aspirational, and in that sense not an impediment in itself to the certification of the agreement. Although, on its face, it does not readily of itself necessarily pertain.

PN44

THE COMMISSIONER: Yes, well, the Commissioner's experience in those areas is that it is wonderful to have those discussions and all the parties walk out the door and do the opposite thing anyhow.

PN45

MR AMENDOLA: Well, my submission is that I think that it might be seen as an aspirational term that is not an impediment for the purposes of certification of the agreement. The next provision to which I need to take you is clause
11, Commissioner. Clause 11, and more particularly, 11.2(b)(c) and 11.3. If I can perhaps I address them specifically, and again, ask you to look at the Schefenacker case that was one of the many clauses that were considered by the Full Bench in that case was a right of entry clause and insofar as the Schefenacker clause was concerned the relevant clause is set out at paragraph 93 which is at page 31 of the decision where the clause says:

PN46

An official or officer of the union shall have the right to enter the employer's establishment with the permission of the employer for the purposes of conducting legitimate union business.

PN47

And the Commission then set out the Murray Bridge clause which is not one to which I prefer the Commissioner, and it was one that the Full Bench found, pertained. The Commission then went through a review of a number of the authorities and came to a conclusion ultimately contrasting the provision in the Schefenacker agreement with that in the Murray Bridge agreement. The relevant part of the decision is set out at paragraph 119, which is at page 38, and it is about a third of the way down, paragraph 119:

PN48

In applying Archer we think it should be confined to a right of entry for the purpose of ensuring the observance of the award and other matters related to ...(reads)... of entry confined in the fashion we have indicated may be included in an agreement that satisfies the requirements of section 170LI.

PN49

And then at paragraph 120 the Full Bench stated:

PN50

Applying this reasoning, we have reached the conclusion that the provision in Schefenacker does not pertain to the relevant relationship, being a right expressed to be for the purpose of conducting legitimate union business.

PN51

It is within that context that one has to look at clause 11, Commissioner. In going through clause 11, 11.1 is unexceptional. It is just that each employee shall be given a copy of the agreement. 11.2(a) merely states that the company recognises the delegates who are elected by the employees as the onsite representatives of the union. Again, I don't think that there is any issue whether or not something pertains in relation to that clause.

PN52

11.2(b) does, however, say:

PN53

Subject to prior approval of the designated managers, the designated manager, delegates will be allowed reasonable time to conduct legitimate union business/recruitment with company employees.

PN54

And one would have to say that that is problematic, I think. Whilst the Full Bench's decision was confined to right of entry it did suggest that something that related to legitimate union business could go beyond just something that pertains and one might argue that delegates business that is related to the recruitment of company employees might pertain to the relationship between a union and the employees but not necessarily the employer as such and the employees as such.

PN55

11.2(c) is the right of entry provision, and it says:

PN56

Subject to prior and acceptable arrangements being made with management, an authorised TWU representative is entitled to enter at all reasonable times upon the premises and interview and/or meet any employee, but not so as to interfere unreasonably with the carrying out of the business.

PN57

It might be said that a clause in those terms is unqualified. It is just to come in and meet and interview admittedly at reasonable times but isn't otherwise qualified. There might well be an argument that within the context of this agreement and the clause being within this agreement it should be implied that it is for the purposes of the agreement alone but I have to say it doesn't say that. And there was a decision - as the Commission, in a case in which we were involved, quite rightly pointed out - you're not necessarily bound by the decisions of your brother or sister members of the Commission at first instance - - -

PN58

THE COMMISSIONER: They provide guidance.

PN59

MR AMENDOLA: But Senior Deputy President Hamberger in a decision recently re-stated the principles in Schefenacker to refuse certification of an agreement that was said to be unqualified. I have got a copy of that decision, and it is a brief one, Commissioner.

EXHIBIT #A2 DECISION OF SENIOR DEPUTY PRESIDENT HAMBERGER

PN60

MR AMENDOLA: That was a decision handed down by Senior Deputy President Hamberger on the 26 April, two days ago, where clause 32 which is the bottom of paragraph 42 - paragraph 4 is the relevant provision which says:

PN61

That an official of the union party to this agreement may enter any work site subject to the following: The official will notify the relevant manager and the official will pursue any grievance arising from his right of entry in accordance with the dispute settlement clause.

PN62

At paragraph 5, Senior Deputy Hamberger sets out that relevant part of Schefenacker that I have already taken the Commissioner to. At paragraph 7, he indicated submissions were presented to the Commission that clause 32 did pertain to the employment relationship as it required the union official to pursue any grievance arising as a result of entering the work site in accordance with the dispute avoidance procedure outlined in the agreement. At paragraph 8, he said that this submission cannot be sustained, while clause 32 does specify the union official will pursue any grievance arising from his right of entry in accordance with the dispute avoidance procedure. It does not confine entry to purposes that pertain to the relations between employers and employees. Under 32, a union official would be able to exercise his right of entry for purposes which do not pertain to the employment relationship. Paragraph 9, he said it was further submitted by TCI that the requirement at clause 32 to notify the company prior to entry would confine matters to entry to matters pertaining. He rejected that argument and said that it precluded certification. You might ask, Commissioner, why am I bringing this to your attention? And again, I just say that I think that I am obliged, because it is my duty.

PN63

THE COMMISSIONER: At the risk of being accused of being overly blunt, I think you would be silly if you didn't. On behalf of your client, of course.

PN64

MR AMENDOLA: Insofar as 11.2(b) is concerned, the stated purposes, I think, would have to be said to be beyond what might be seen to pertain.

PN65

THE COMMISSIONER: Yes.

PN66

MR AMENDOLA: 11.2(c) isn't qualified, but it may be argued that to the extent that it appears in the agreement relating to the agreement that it is implicitly qualified but one could see a different view being taken. The last clause is 11.3, which says:

PN67

The union will be given a reasonable opportunity, including induction processes, to recruit new workers as members, and introduce this agreement, and, where it exists, the business side agreement, including the terms and conditions of employment. Accordingly, a time will be allowed for the delegates to discuss such matters with new employees as soon as practicable.

PN68

Now, that is a compendious clause, but one of the parts of the compendium is to recruit new workers. If the Commission were minded to take the view that
11.2 (b) (c) and 11.3 could well preclude certification, it may be that it might be appropriate, rather than so determining, to allow the parties to discuss further clause 11. Because it may mean that there might be changes, it might mean that there is a further vote, and it might mean it might otherwise be dealt with. And, if not, well, the Commission can then make a decision.

PN69

THE COMMISSIONER: Yes.

PN70

MR AMENDOLA: They are the only clauses to which I would take the Commission. I would otherwise rely on the statutory declarations that have been filed. There is also the issue, and I say this for the sake of completeness, Commissioner, of the application having been filed beyond the 21 days, and if I can just briefly address you in relation to that, because there is authority on that particular issue. There is a decision of the Commission that I seek to take you to being a decision of Deputy President McCarthy. It was handed down in Perth on the 13 November.

EXHIBIT #A3 DECISION OF SENIOR DEPUTY PRESIDENT MCCARTHY

PN71

MR AMENDOLA: The member of the Commission, very usefully, went through a number of the decisions dealing with the issue. The relevant parts of the decision that I would wish to take the Commission to are paragraphs 71 and
72, which are at page 14 of the decision.

PN72

Commissioner, I could take you through all of the decision, but the nub of it is at paragraphs 71 and 72. 71:

PN73

The purposes of the legislation both from a consideration of the objects and direction of section 170LA as to how the Commission is intended to fulfil its ...(reads)...prevents certification of the agreement as this would frustrate the fulfilment of the objects of the Act and the Part.

PN74

What that means, in my submission, Commissioner, is that you do have jurisdiction to consider an application that is made out of time and if you otherwise took the view that it was capable of certification the Commission could, if otherwise satisfied of the sorts of matters that are raised in paragraph
72, extend the time for the certification of the agreement, and then certify it. Insofar as the delay is concerned, Commissioner, it wasn't a deliberate delay. Most of the administration, from my client's perspective, took place in Queensland, the agreement came to our office a day late, and we did what we needed to do.

PN75

And what I am about to say is not intended with any criticism, it is just a fact, as it were. We sent it to the TWU for the completion of the statutory declaration that the federal secretary had to complete, and also for the purpose of signing the agreement. Once that was done, we filed. Now, that did result in a delay, but it was not a deliberate delay. I am not suggesting that it is acceptable, but it was really just one of those things, Commissioner.

PN76

THE COMMISSIONER: Well a day's delay often compounds, unfortunately, both sides.

PN77

MR AMENDOLA: Yes, Commissioner. In relation to the position in respect of employees who would be covered by this agreement, there has been no change in the composition of the workforce that has voted on the agreement. Those are my instructions. I am not sure I am able to take the matter any further, Commissioner, but subject to what my learned friend has to say about clause 11, in terms of the discussion that has taken place between us, if you are of the view that that creates difficulties, then it would be my submission that perhaps the best thing to do is to adjourn the proceedings rather than to rule on it at this point, if the Commission pleases.

PN78

THE COMMISSIONER: Yes. Thank you Mr Amendola. Ms Ryall?

PN79

MS RYALL: Thank you, Commissioner. We support the submissions of Toll and we also ask that you extend the time for filing in this matter. As my learned friend has suggested, we didn't receive the documents to prepare for filing until, I think, 6 April. At that time our federal secretary was away and we arranged for those documents to be signed and returned at the earliest opportunity, and since there has been no change to the work force in that time - - -

PN80

THE COMMISSIONER: From memory, that went back to Queensland to be signed by the - - -

PN81

MS RYALL: The president, yes. Yes, that was probably, that could possibly be part of it. I would have to look at the back of the agreement. It has been signed by John Allan, but I believe he was actually in Australia, so they cannot be signed by the president, they have to be signed by the federal secretary.

PN82

THE COMMISSIONER: Yes. I am aware of the rules of the Transport Workers Union of Australia, Ms Ryall.

PN83

MS RYALL: Commissioner, we do seek certification of the agreement in the terms sought, but we do acknowledge that if there are matters within this agreement that are found not to pertain to the agreement, there is no doubt that it will not meet the requirements of section 170LI, and that would then require that you cannot certify it. In that case we would also support the submissions of our friend in that we would ask for the matter to be adjourned. Thank you, Commissioner.

PN84

THE COMMISSIONER: Yes. Thank you. Well, firstly, the proper reasons have been given for the matter being filed out of time, and the points have been made by both sides that there was no deliberate attempt to obfuscate. Accordingly, pursuant to section 111(1)(r) of the Workplace Relations Act the Commission extends the time for filing of the agreement. The points raised by Mr Amendola, and raised properly in the Commission's view, in respect to, specifically, clause
11, in respect to 11.2(b) and (c) and 11.3, may be cause for concern. However, the Commission is not of a mind to reject the certification of the agreement at this time.

PN85

It would be unfair to both parties, especially with the Commission's knowledge of the good working relationship that prevails between the parties. Accordingly, the Commission adjourns this matter sine die and directs that the parties have further discussion about the content of the agreement. The matter will be re-listed on application by either party for certification or otherwise. I don't think I need to say anything more on the record about that, it would probably be most unwise if I did. Thank you, ladies and gentlemen, the Commission is adjourned.

<ADJOURNED INDEFINITELY [10.28AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DECISION OF SCHEFENACKER PN12
EXHIBIT #A2 DECISION OF SENIOR DEPUTY PRESIDENT HAMBERGER PN59
EXHIBIT #A3 DECISION OF SENIOR DEPUTY PRESIDENT MCCARTHY PN70