AG2005/4154, Transcript of Proceedings [2005] AIRCTrans 1287 (9 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11723-1

COMMISSIONER RICHARDS

AG2005/4154

APPLICATION BY GRIFFITH UNIVERSITY & NATIONAL TERTIARY EDUCATION INDUSTRY UNION-QUEENSLAND DIVISION
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4154)

BRISBANE

12.02PM, FRIDAY, 27 MAY 2005

Reserved for Decision

PN1

MR D WEDGWOOD: I appear on behalf of AHEIA for the university with MR K GREEDY.

PN2

MS C GRANT: I appear on behalf of the National Tertiary Education Industry Union.

PN3

THE COMMISSIONER: Thank you for your joint written submissions in relation to this matter. I have received those, of course, and I have read those if that's of assistance to you in terms of how you want to proceed this morning. There are only those matters before us and we don't need to deal with any other issues for purposes of the application in its, for want of a better word, consistency of the requirements of Division 2 and Division 4 of the Act. It is only those issues in relation to subclause 50.4 bullet points 2 and 4 that are of relevance and these are the matters I asked you to address in your written submissions, which you have done so and so really the task today is to submit what you would like to submit in relation to any further articulation or enhancement or whatever of those written submissions. Mr Wedgwood.

PN4

MR WEDGWOOD: Commissioner, I won't go through the formalities then, if you're satisfied with the application.

PN5

THE COMMISSIONER: Yes. There are no other considerations.

PN6

MR WEDGWOOD: There is for completeness, however, and I should draw it to your attention that the university statutory declaration at 1.4 and 6.1 does have a box-ticking omitted. It had to come to my attention and I formally just seek the Commission's indulgence under 111(1)(q) to just correct those technical errors.

PN7

THE COMMISSIONER: Not being a part of the Act, and I probably don't need to exercise powers other than you to tell me what was intended and I think they're mirrored in the other statutory declaration.

PN8

MR WEDGWOOD: Not quite, Commissioner. In 1.4 it should say yes, it's a part of the business and it is the university's view that it is a distinct operational or organisational part. It is a matter of consistent contention between universities generally and the NTEIU that they say it's not a distinct organisational and/or operational part of the single business. In the end nothing turns on that because the parties are on common ground that, even if that were so - - -

PN9

THE COMMISSIONER: It's either or.

PN10

MR WEDGWOOD: - - - the fact that the other staff are covered by a general staff agreement which in general reflects the entitlements. Appropriately, there is no disadvantage to anyone who's not incorporated within the part.

PN11

THE COMMISSIONER: Sorry, just run me by that again. Why do you say that there's no implication?

PN12

MR WEDGWOOD: The requirement is that if it is a geographically distinct part or a distinct operational or organisational unit within the single business that is the end of the matter. If it is not, then the Act requires that the Commission has to be satisfied that the agreement does not define that part in a way to exclude employees that should reasonably be covered by it and are so disadvantaged by being so excluded.

PN13

THE COMMISSIONER: This is LU8? Yes, it is.

PN14

MR WEDGWOOD: LU8, that's correct, yes. Given that, however perceives the separation of those parts of the university into academic and general staff, there exists a general staff agreement which incorporates similar benefits and entitlements and therefore there's no disadvantage. So whether you stop before you get to LU8 or when you get to LU8 it's common ground that there's no disadvantage.

PN15

THE COMMISSIONER: In either scenario there's not an implication for the jurisdictional basis of the agreement.

PN16

MR WEDGWOOD: Correct. The other point is just - - -

PN17

THE COMMISSIONER: That's right. The other one?

PN18

MR WEDGWOOD: - - - literally a clerical error in 6.1. Neither box was ticked and of course the first one saying the agreement was genuinely approved by a valid majority of employees should be. Sorry, and 6.2 should actually say 29 April, the date of the closing of the ballot, but again I think you're correct that the NTEIU statutory declaration includes those facts.

PN19

THE COMMISSIONER: Thank you, Mr Wedgwood. Are there any other matters of that sort?

PN20

MR WEDGWOOD: Not that I'm aware of, Commissioner. I suppose my next question was simply, is the Commission of the view that some further submissions on the points that have been raised are required, other than the so far written submissions, if I may ask the question?

PN21

THE COMMISSIONER: That's an interesting question. I haven't formed a view as yet. I've read the submissions and it's just a question now whether there's anything you want to add for the purposes of supplementing the arguments that you've presented or not.

PN22

MR WEDGWOOD: Commissioner, in that case I will supplement, shall we say, perhaps the points that have been put in writing so far. In relation to dot point 2, Commissioner, in the written submission your attention was drawn to the decision in Macquarie University enterprise agreement of Duncan SDP and I'm not sure whether you have a copy of the decision in that case, but I did bring a spare, if that's necessary.

PN23

THE COMMISSIONER: Yes, if you have one there.

PN24

MR WEDGWOOD: Certainly. In relation to dot point 2 in the Griffith University agreement that you raised in the earlier request for consideration, the text of that dot point is very similar to the provision in the Macquarie University of clause 5.07.04 which is on page 9 of the decision of Duncan SDP and it provides for the university supplying the staff member with union information brochures if such brochures have been provided to the university by the union.

PN25

In his decision at the bottom of page 10 in paragraph 6, running onto page 11 of the decision, he adopted the reasoning of the NTEIU submissions which were supported by the university and those submissions at paragraph 47 on page 17 mounted the argument that it was a matter that pertains and Duncan SDP adopted those reasonings in forming his judgment on that particular point. So we would say that there's a precedent in terms of establishing a very similar clause that it meets the requirement.

PN26

In the matter of Ballantyne and again, Commissioner, I know you'd referred to it but I did bring a copy of that if necessary.

PN27

THE COMMISSIONER: Sorry? You have a copy of Ballantyne - - -

PN28

MR WEDGWOOD: You referred to Ballantyne, Ross's VP decision in Ballantyne.

PN29

THE COMMISSIONER: I know Ballantyne so I don't need a copy of that.

PN30

MR WEDGWOOD: In the question of Ballantyne the question of the provision of that information and access to the worksite for a variety of purposes, including recruitment, was approved by Ross VP so I think that point is consistent with both Ballantyne and with Macquarie.

PN31

THE COMMISSIONER: Sorry, bullet point 4?

PN32

MR WEDGWOOD: Bullet point 4, if I may go through it. In relation to bullet point 4, again I want to deal with the matters by Ross in Ballantyne. At paragraph 59 Ross VP made the points that he rejected the submissions of the AIG and ACCI which was that any clauses which give unions or their representatives rights are almost by definition not clauses that pertain to the employment relationship and hence cannot be included in a certified agreement. He said:

PN33

This is a false premise. The task to be undertaken is one of characterisation.

PN34

So we would say that one needs to characterise the clause and then look at it in context and that was a fundamental part of the written submissions that we made earlier, Commissioner.

PN35

In relation to the question of the clause itself, as well as the issue of whether the matter per se pertains to the employment relationship, I would say that it may also be considered, if that is not a convincing argument to the Commission, that it may further be considered to be a question of being either incidental, ancillary or machinery within the agreement. In Ballantyne at paragraphs 71 and 74 Ross VP makes the point that there are a variety of High Court authorities for recognising that incidental to or machinery or ancillary can be included in agreements even if not of themselves a matter that pertains. Indeed, at paragraph 74 he said he rejected the contentions advanced by ACCI that incidental, ancillary or machinery provisions in a certified agreement must support the operation of particular substantive clauses. This too is inconsistent with Spicer which he quoted in paragraph 71, the High Court decision in that particular case.

PN36

What we would say there is that it is therefore possible to regard the fourth dot point as being incidental, ancillary or a machinery provision without necessarily happening to draw it back to a specific provision of the agreement, but rather to look at it in the context of a whole again, as we said in the written submissions.

PN37

That being said, Commissioner, you asked to compare specifically with the point that was raised by Ross VP in relation to 44.4 and that matter is raised in Ballantyne at paragraph 151. Also in paragraph 151 Ross VP considered paragraph 44.2 which said:

PN38

Delegates will be allowed, subject to prior notification to their supervisor, reasonable paid time to conduct on-site business, including recruitment with workers.

PN39

That was deemed by Ross VP to be a matter which pertained and we would say that the fourth dot point in the Griffith University agreement is very similar to 44.2.

PN40

THE COMMISSIONER: Isn't 44.2 about delegates in relation to leave?

PN41

MR WEDGWOOD: No.

PN42

THE COMMISSIONER: It's not a leave provision.

PN43

MR WEDGWOOD: It is specifically in relation to and it is headed Delegates On Site Business. I think Ross VP may have come to the view that it was a matter pertaining because an underlying aspect of it was leave but I would say in the same context the question of the reference in the fourth dot point to reasonable union representative access involves, underlying that question, the fact that the individual concerned is allowed to absent themselves from their workplace before they go to see another person. So there's an underlying component in relation to union representatives in that case.

PN44

THE COMMISSIONER: Are you saying these two classes, the union official and the representative are one and the same or they're both employees, are they?

PN45

MR WEDGWOOD: No, Commissioner. I would say they're two different classes. I'm addressing firstly what is the second class which is the representative in that case so there's an underlying matter, namely their capacity to absent themselves from the workplace to go elsewhere within the workplace.

PN46

There is in relation to the question of an external union official in relation to again Ballantyne at paragraph 179, clause 45 of the Ballantyne Agreement, the right of entry which said:

PN47

An authorised union representative is entitled to enter at all reasonable times upon the premises and to interview any employee but not so as to interfere unreasonably with the employer's business.

PN48

That particular clause was found by Ross VP to be a matter pertaining. So the two components of the individuals involved in the fourth dot point in the Griffith University, namely union officials external to the workplace, and union representatives whose normal job is in the workplace, capacity to be within the workplace for any purpose is a matter pertaining and clearly therefore, to be in that location for some sub-purpose, if you like, or some particular purpose, we would say also must be a matter pertaining.

PN49

The next question is, that that being the case that within the context of the agreement as a whole, those individuals are in a position to be there, that the provision in the fourth dot point is either ancillary or incidental or probably more particularly a machinery provision in relation to that. You asked, Commissioner, to distinguish the question between that dot point and the point in 44.4, I think, if I'm correct, yes, 44.4 of Ballantyne which Ross VP found not to pertain.

PN50

The point that I would make in response to that is that very specifically the fourth dot point in the Griffith University agreement says:

PN51

Subject to three days prior notice and approval by the university.

PN52

That is, it specifically provides for a machinery exercise of both an obligation to the relevant representatives to notify the university and for the university to be in the position to approve or reject the attendance upon a particular workplace. We would say that relates to the employment relationship between the employer and those employees who it may be proposed to be visited, regardless or their status or otherwise of a union member or not, because it continues to ensure that the university has the right to, if it so chooses, restrict access to a particular worksite and that's a matter which clearly pertains to the employment relationship between the employer and the employee because there may be occasions where, for instance, in chemistry laboratories or in particular in teaching situations where the university very specifically wants to control access to locations within its campus.

PN53

We would say therefore that the dot point can be regarded as a machinery provision to other matters which clearly are regarded as matters that pertain.

PN54

THE COMMISSIONER: So what do you think Vice President Ross actually decided there?

PN55

MR WEDGWOOD: Sorry, Commissioner?

PN56

THE COMMISSIONER: What did Ross VP actually decide there?

PN57

MR WEDGWOOD: What Ross VP decided is that clause 44.4, which said:

PN58

The union will be given opportunity to recruit -

PN59

as it should say:

PN60

workers as member. Accordingly, adequate time will be allowed for the delegates to discuss union matters with new workers as soon as practicable.

PN61

In paragraph 170 he said:

PN62

Contrary to the submissions advanced by the NUW and the ACTU.

PN63

Commissioner, in relation to those particular points at paragraph 155 the NUW and the ACTU founded their argument on the basis of Cram that recruitment was a matter that pertains to the employment relationship and in fact, subsequently, in his considerations Ross VP addressed the ACCI interpretation of that and at paragraph 162 he said:

PN64

Cram says nothing about recruitment into union membership of persons already employed which is clearly the subject matter of clause 44.4 of the proposed agreement.

PN65

That is, he rejected the arguments that Cram was authority for the clause. We don't seek to rely on Cram because I recognise that, as Ross VP said, it was about the recruitment to employment, not the question of recruitment to union. That having been said, the question of allowing of time off for representatives and allowing of access for any purpose and allowing access for union officials for any purpose, both were found by Ross VP to pertain. We would say the underlying matters pertaining in the fourth dot point are in fact those two issues.

PN66

The matter may be a little more clarified in that in relation to the general principle, the arguments were put to Ross VP that a matter that is stand alone, independent and autonomous, had to be considered on its own and that in fact I think it's fair to say that he considered 44.4 in that context, that it was tested on its own, independently, we would say that that is not a proper characterisation of the fourth dot point in the Griffith University agreement because it relates to at least two matters which separately from this dot point have been found to pertain and the specific provision that makes it subject to notice by the union party and secondly, approval by the university distinguishes it from 44.4 in Ballantyne.

PN67

Beyond that at this point, Commissioner, I don't have anything further.

PN68

THE COMMISSIONER: Thank you, Mr Wedgwood. Ms Grant, do you have anything to add?

PN69

MS GRANT: Commissioner, just to note that the NTEIU supports the additional submissions made by Mr Wedgwood.

PN70

THE COMMISSIONER: Thank you for those submissions, Mr Wedgwood. I'll call for transcript and consider them. On that basis the decision is reserved. Thank you. We're adjourned.

<ADJOURNED INDEFINITELY [12.26PM]