AG2005/4381, Transcript of Proceedings [2005] AIRCTrans 1666 (8 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12320-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2005/4381

APPLICATION BY AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-SOUTH AUSTRALIAN BRANCH & BAE SYSTEMS AUSTRALIA PTY LTD
s.170MD(2) - Variation of certified agreement by employer or union
(AG2005/4381)

ADELAIDE

11.16AM, MONDAY, 25 JULY 2005

PN1

MR P YOUNG: I appear for BAE Systems.

PN2

MR C FENNEY: I appear on behalf of the AMWU and its members.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, I can advise the parties that I've read the statutory declarations and I've read the extension agreement, I think is the right terminology for it. I have no questions at all about the approach that has been followed in this matter, as it seems to me that the Act does provide for an extension of the agreement provided the current 3 year maximum is not exceeded. However, I do have a couple of issues. Perhaps if I go to the one that causes me most difficulty in terms of the agreement itself. That is clause 30 of the agreement, which relates to union membership. That clause says that the company will continue to deduct union dues through the payroll if requested.

PN4

The Act requires that in looking at the proposed variation of the agreement, that I certify the agreement as varied as if it were a new agreement in terms of the operation of section 170MD3. The issue of union dues paid through the payroll was dealt with at some length by a full Commission in a decision colloquially known as Schefenacker. The Commission has in that decision, determined that the earlier High Court findings in Portus v Alcan precluded the incorporation of payroll deductions for union dues in an agreement, on the basis that it did not pertain to the relationship of the employer and its employees as such.

PN5

Now, I am very happy to let the parties have the opportunity to either address me now on that particular question, or to take the issue away and ponder upon it and provide me with some further advice, but I thought I should flag to you now that I see a potential significant difficulty in terms of that particular clause.

PN6

MR YOUNG: Thank you Commissioner. Perhaps start with Schefenacker. We just had a discussion about it earlier and the fact that the matter that the Commission has raised escaped both our attention prior to today, in terms of not being a matter which pertains to the relationship between employer and employee. We wondered whether it might be able to be done on the Commission's approval on the basis that it is simply the extension of an existing agreement. This is not a new issue - sorry the variation of the agreement - this is not a new issue raised as a part of the variation. This part of the agreement simply continues to operate by that means, and may not be called .....

PN7

THE SENIOR DEPUTY PRESIDENT: I am not sure how I would climb over the requirements of section 170MD3(b) in that regard Mr Young. Have you got a copy of the Act?

PN8

MR YOUNG: I don't have a copy of the Act.

PN9

THE SENIOR DEPUTY PRESIDENT: My associate will loan you one as long as you give it back to her, otherwise you'll be in deep trouble.

PN10

MR YOUNG: I will give it back. 170MD3?

PN11

THE SENIOR DEPUTY PRESIDENT: 170MD3 and in particular MD3(b).

PN12

MR YOUNG: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: In any event, I am not sure that I would be doing you any great favour, because if indeed the full Commission is correct in its conclusions in Schefenacker, then it puts the validity of the agreement in its current form under somewhat of a cloud. If I then vary the agreement and ignore that particular component, I am not sure that the variation would sustain the test established in that Electrolux amending legislation. I need to stress to you that I'm very happy to take that on board if you want me to and consider it at some more length.

PN14

MR YOUNG: I can't recall, no I don't think we were in Court by that provision.

PN15

THE SENIOR DEPUTY PRESIDENT: You are Schefenacker again are you?

PN16

MR YOUNG: You need to be satisfied that the whole agreement is one which is required to approve with that provision in it, I don’t think that that says the agreement. I can't recall Commissioner, whether it is possible to overcome the problem, I was given an undertaking for when we need go back.

PN17

THE SENIOR DEPUTY PRESIDENT: No, I can’t address that problem with an undertaking. Schefenacker again makes that absolutely clear. Unless you want to argue that there is some capacity to deal with that particular clause and the context of the Schefenacker decision, you are going to need to take the agreement away and repeat the process. I can do everything possible to facilitate that, in that I wouldn't necessarily require a new application to be made, and I would be quite happy to receive a revised extension agreement. I would need some more statutory declarations, simply confirming the process that was followed, but I can say to you that subject to one other question that I'll raise with you in a moment, if I was provided with that revised extension agreement and the new statutory declarations, I would endeavour to deal with the matter off the papers, rather than needing a further hearing.

PN18

MR YOUNG: Yes, thank you Commissioner.

PN19

THE SENIOR DEPUTY PRESIDENT: The outstanding issue that I would require some clarification on relates to clause 25, and this is headed Reserved Matters. It lists a range of matters to be dealt with during the life of the agreement or at the next enterprise bargaining negotiation period, that is July 2005, and I was going to seek some clarification from the parties as to how I should construe that particular provision. It may be that you don't need to answer that question now, and you might want to take it on board so as to provide me with a written answer when you resubmit the agreement.

PN20

MR YOUNG: I think Senior Deputy President, I can indicate that that is part of the agreement that is being extended, and there was no requirement to change. Part of the agreement has been varied and the only effect to the variation is to extend the term of the agreement without changing any of the substantive provisions. There has been discussion actually prior to July 2005 in relation to those reserved matters, knowing a substance came of those provisions, and so there was no need for any further variations in the agreement, other than the extension I've just heard. So, the consideration and discussion contemplated by clause 25 has in fact heard and probably has no further work to do at this stage. I think it likely that some of those matters will come up for discussion at the next round of negotiation during the course of things, but that particular clause has done it's work.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Fenney that reflects your view does it?

PN22

MR FENNEY: Yes sir, that does reflect my view.

PN23

THE SENIOR DEPUTY PRESIDENT: I think that deals with clause 25, leaving only the issue of clause 30 for you to ponder upon. If as I said, I am provided with the revised agreement and statutory declarations after at least a 14 day period, then I'll endeavour to deal with them without the need for a hearing, and hopefully that will allow for certification of the agreement in its varied form with effect from the date upon which I receive that material. If there is something unforeseen which might impact on that certification process, then I'll advise the parties and reconvene a hearing, but I can’t see that at the present time. Are you happy with that approach Mr Young?

PN24

MR YOUNG: Yes thank you sir.

PN25

THE SENIOR DEPUTY PRESIDENT: Mr Fenney? Very well, I'll adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [11.26AM]