AG2005/4360, Transcript of Proceedings [2005] AIRCTrans 1480 (7 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12025-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/4360

APPLICATION BY COULTHARD WELDING PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/4360)

ADELAIDE

10.45AM, TUESDAY, 28 JUNE 2005

PN1
MR I LAW: From the Motor Trade Association of South Australia. With me today, I have MS K LEDIAEV also from Motor Trade Association,
MR G PEDERSON, director from Coulthard Welding and MR S DICKINSON, one of the employees who is covered by the agreement before you today.
PN2
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Law. I can advise the parties that I've read the agreement and I've also read the employer statutory declaration. Mr Law, following your request, I provided the opportunity for this hearing to proceed without the requirement for an employee declaration. What I'm going to do this morning, is deal first of all with the process that was followed in terms of making this agreement, before moving to the agreement itself and I only have one question in that regard. Now, Mr Law can you give me a copy of the notice of intention to make this agreement?
PN3
MR LAW: Yes, your Honour.
PN4
THE SENIOR DEPUTY PRESIDENT: Mr Law, that notice of intention was provided to all the employees on 27 May, is that the case?
PN5
MR LAW: That's correct, your Honour, with a copy of the proposed agreement as well.
PN6
THE SENIOR DEPUTY PRESIDENT: Have you got a copy of this notice in front of you?

EXHIBIT #C1 NOTICE OF INTENTION TO MAKE AN AGREEMENT

PN7
MR LAW: I do, your Honour.
PN8
THE SENIOR DEPUTY PRESIDENT: If you can go to paragraph 4 for a moment. The paragraph in that regard has two critical components. The first reflects quite clearly the requirements set out in section 170LK(4) of the Act, in so far as it reflects an invitation, or a statement of right, in that if an employee seeks to be represented by a union of which they are member and which is entitled to represent them, they can do so. The second sentence - sorry the last sentence in that paragraph 4 is an entirely problematic one by virtue of a Full Commission decision, the name of which escapes me for the present time, which drew a distinction between an employee having the right to nominate a union and the employee being required to tell the employer if they wanted to exercise that right.
PN9
Now, I'm just mentioning that at this stage because that's going to inform a critical question that I'll need to put to Mr Dickinson.
PN10
MR LAW: The phrasing of that, of course, is mine, your Honour. So I'd just like to note that it wasn't intended to read that it is required, more a request for the expediency of dealing with the matter that Mr Pederson being notified so that arrangements could be made.
PN11
THE SENIOR DEPUTY PRESIDENT: I can understand that. I am obligated to have regard to Full Commission decisions.
PN12
MR LAW: Certainly.
PN13
THE SENIOR DEPUTY PRESIDENT: Whilst I can understand the basis for those particular words, perhaps more easily sometimes than I can understand
Full Commission decisions, I am obligated to have regard to those decisions. I presume there were no such requests put to Mr Pederson?
PN14
MR LAW: No.
PN15
THE SENIOR DEPUTY PRESIDENT: Nor indeed any union requests to
Mr Pederson?
PN16
MR LAW: No, your Honour.
PN17
THE SENIOR DEPUTY PRESIDENT: Now, Mr Dickinson you're here today as an employee representative, is that the case?
PN18
MR DICKINSON: What, sorry?
PN19
THE SENIOR DEPUTY PRESIDENT: You're here today as an employee representative?
PN20
MR DICKINSON: Yes.
PN21
THE SENIOR DEPUTY PRESIDENT: Were you elected as such, or how did you come to be the employee representative?
PN22
MR DICKINSON: I was asked by Graeme to come along and represent the employees.
PN23
THE SENIOR DEPUTY PRESIDENT: I see. So you didn't play any role as an employee spokesperson in the negotiation of the agreement, is that the case?
PN24
MR DICKINSON: No, we were on an even par.
PN25
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN26
MR DICKINSON: We were all on even par - - -
PN27
THE SENIOR DEPUTY PRESIDENT: I see. Now, have you seen this document that I've marked C1? This is the notice of intention to make the agreement.
PN28
MR DICKINSON: I don't recall it, no. I didn't take much notice of any documents that came through.
PN29
THE SENIOR DEPUTY PRESIDENT: Take a moment to read it. I need to know that you received that document on or about 27 May.
PN30
MR DICKINSON: I can't say I can recollect seeing this.
PN31
THE SENIOR DEPUTY PRESIDENT: Let me look at it this way, what was your understanding of the right that you had to have a union involved in discussions - in representing you in discussions with the employer about the agreement?
PN32
MR DICKINSON: I understood we could get representation if we needed to.
PN33
THE SENIOR DEPUTY PRESIDENT: How did you reach that understanding?
PN34
MR DICKINSON: Simply through what Ken may have said, or something that's come about, I'm really not sure. Perhaps it was through this, I just can't recall reading it.
PN35
THE SENIOR DEPUTY PRESIDENT: I see. Can I take that a step further? As an employee, had you wanted to have a union involved in those discussions, what would you have done?
PN36
MR DICKINSON: I would have said to see Graeme or Darryl in the office.
PN37
THE SENIOR DEPUTY PRESIDENT: To do what?
PN38
MR DICKINSON: Ask how we go about getting - - -
PN39
THE SENIOR DEPUTY PRESIDENT: Getting a union involved. Are you in a position to tell me that you've discussed this agreement with all of your fellow employees?
PN40
MR DICKINSON: I went and asked them all today if they were happy with this agreement .....
PN41
THE SENIOR DEPUTY PRESIDENT: Are you aware of anybody who sought to have a union involved?
PN42
MR DICKINSON: No.
PN43
THE SENIOR DEPUTY PRESIDENT: Was union involvement suggested at all in the process of negotiation of the agreement?
PN44
MR DICKINSON: I don't recall the union being .....
PN45
THE SENIOR DEPUTY PRESIDENT: I see. Can we take that a step further? What I'm anxious to ascertain, is whether or not there was any mention made of a union being involved from the perspective that employees had to advise the employer, in accordance with this notice, if they wanted to have a union involved. That is, did it put anybody off, did anybody alert you to being put off - contacting a union by virtue of the fact that they had to advise Mr Pederson?
PN46
MR DICKINSON: No. No mention of anyone needing to notify the union or having to go through Graeme, continually.
PN47
THE SENIOR DEPUTY PRESIDENT: So there was just no mention of unions at all?
PN48
MR DICKINSON: Not through any of us employees.
PN49
THE SENIOR DEPUTY PRESIDENT: When was the first time you remember seeing the agreement?
PN50
MR DICKINSON: I couldn't pinpoint when that was - probably a couple of months back.
PN51
THE SENIOR DEPUTY PRESIDENT: Was the only ever one draft of the agreement?
PN52
MR DICKINSON: I think there was a couple of different forms that we went through .....
PN53
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Pederson [sic]. Mr Law, was the agreement changed at all from the draft, which was provided to employees on 27 May?
PN54
MR LAW: No, it wasn't, your Honour. The matter, as I have outlined this, is a simple matter to make one minor variation to the award to allow employees to request and the employer to agree to the taking of annual leave in a more flexible way than currently provided by the award. The draft that I provided on 27 May, at that time, I ran through the notice of intention and went through all of the points there and explained what was in it, as well as going through the terms of the agreement explaining that it left the two relevant awards essentially in tact, other than the flexibility provisions contained in the agreement for annual leave and long service leave. That included going through the right to union representation but it's, I guess, something that Shaun has - it has slipped his mind in the intervening period.
PN55
THE SENIOR DEPUTY PRESIDENT: Mr Dickinson, does Mr Law's statement help you at all, do you agree with it or not?
PN56
MR DICKINSON: I do recall going through all the information.
PN57
THE SENIOR DEPUTY PRESIDENT: So, do you still recall there being more than one draft of the document?
PN58
MR DICKINSON: I really haven't paid much attention to it - the draft...... I just had a simple understanding of the ..... - going on.
PN59
THE SENIOR DEPUTY PRESIDENT: Mr Law, can I then take you to the agreement itself. The only question that I have about the agreement itself relates to the dispute resolution procedure.
PN60
MR LAW: Yes, your Honour.
PN61
THE SENIOR DEPUTY PRESIDENT: Clause 7.2 envisages that:
PN62

Should a matter remain unresolved, it would be referred to the Commission for assistance to settle the dispute.

PN63
It continues to say:
PN64

For these purposes the Commission may, at its discretion, appoint a board of reference for the purpose of setting a dispute.

PN65
As an alternative to the appointment of a board of reference, do the parties say to me that the Commission could convene a conference, or as a last resort, arbitrate on the matter in dispute? There's no right or wrong answer, I'd just rather know, now.
PN66
MR LAW: That's something you need to have an answer on at the moment, your Honour? It's not something that I've discussed specifically. So, I don't have any instructions on it at the moment.
PN67
THE SENIOR DEPUTY PRESIDENT: I don't need any answer now because I'm going to need to take away the information provided to me, relative to the processes followed, and have a look at that particular decision - the name of which slips my mind at the present time. So, that will take me a few days and if you can advise me of the shared position of the parties, relative to clause 7.2 in the meantime. My Associate will give you an email address and you can email advice to us in that regard.
PN68
MR LAW: I need to get the question straight, your Honour, I haven't jotted it down.
PN69
THE SENIOR DEPUTY PRESIDENT: To repeat, the issue relates to clause 7.2. 7.2 provides the discretion for the Commission to appoint a board of reference. Do the parties also hold the view that the Commission is empowered under this clause to either conciliate the matter or to arbitrate upon the matter in dispute?
PN70
MR LAW: Thank you.
PN71
THE SENIOR DEPUTY PRESIDENT: I need to make it clear, what I'm looking for is some form of response, which indicates both the employer and the employee position. There is no right or wrong answer, other than I can clearly only act on an answer that is consistent. In that, if one group says one thing and the employees say for instance another thing, I'm going to struggle with this.
PN72
MR LAW: So there are three answers, there's conciliation, there's arbitration or there's conciliation or arbitration.
PN73
THE SENIOR DEPUTY PRESIDENT: There are as many as the parties want. Of greater moment is the fact that they might be consistent.
PN74
MR LAW: Thank you.
PN75
THE SENIOR DEPUTY PRESIDENT: Let me make a couple of comments. With the exception of section 170LK(4), I'm satisfied that the process that was followed was consistent with the requirements of that section 170LK. I'm also satisfied that the agreement itself deals with matters that relate to the relationship of the employer and its employees. I'm satisfied that section 170LT, with the exception of how I should understand the dispute resolution process, has been met and that section 170LU would not dictate against certification of the agreement.
PN76
So that, if I can satisfy myself that this notice of intention meets the requirements of the Act and if you provide advice to me about the dispute resolution process, then I'd propose to certify the agreement from the date upon which I received that advice. If, on the other hand, I can't be satisfied as to the content of the notice of intention, then I will not be able to certify the agreement and you'll need to repeat the process. In that event, I'd provide a reason in a documented form as to why it is I've reached that conclusion and set out the process that you might follow for the future to avoid such a problem recurring.
PN77
MR LAW: One thing I'd seek to flag, your Honour, is after we started this process, I was reminded of the enterprise flexibility provisions within the award. I made some enquires from what I can gather from the Registry, there isn't anybody that knows of it having been used but it appears to be a process that could have been used for this particular form of situation. So something, if I could perhaps discuss with you if it comes to that, about what process might be required to use that and whether that might be a simpler process to achieve the aims of the parties.
PN78
THE SENIOR DEPUTY PRESIDENT: That's something for the parties to consider. I'm not going to be able to help you a lot in terms of giving you advice about what the award means in that circumstance.
PN79
MR LAW: I was more looking at what sort of process you would require, given that there appears to be no precedent for it. I could make an application - but to smooth the transition if you had some news on what might be needed, rather than coming before you and then having to go away, if there was some way we could consider that.
PN80
THE SENIOR DEPUTY PRESIDENT: That's something that you'll need to consider, Mr Law if you want to make application to talk to me about that, you can do that. In the event that I wasn't able to certify this particular agreement, my normal approach would be to lay out what you would need to do to certify it or to repeat the process so as to achieve certification and to give the parties the opportunity to repeat that process without the need to come back into the Commission. So that might also be another factor to consider.
PN81
MR LAW: Thank you.
PN82
THE SENIOR DEPUTY PRESIDENT: But let's cross that bridge when we get to it. I'll go away and read the authorities, which I will need to have regard to and wait to hear from you in terms of the dispute resolution provisions.
PN83
MR LAW: Is it something that might be of assistance to contact any of the other employees who've signed and been a party to this agreement, your Honour?
PN84
THE SENIOR DEPUTY PRESIDENT: I can only deal with information I'm given. There's a risk that we'll spend so much time and money chasing this rabbit down its warren, that the benefits associated with that process will be outweighed. I'll go away and look at the material I've been given and if I can certify it then I can assure that I'll be forwarding the certificate to you as soon as possible.
PN85
MR LAW: Thank you, your Honour.
PN86
THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [11.05AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 NOTICE OF INTENTION TO MAKE AN AGREEMENT PN6