AG2005/2214, Transcript of Proceedings [2005] AIRCTrans 1936 (20 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12777-1

COMMISSIONER GREGOR

AG2005/2214

APPLICATION BY JOHN HOLLAND ENGINEERING PTY LTD & CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, WA DIVISIONAL BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/2214)

PERTH

2.00PM, TUESDAY, 06 SEPTEMBER 2005

Continued from 28/7/2005

PN1

MR J LONG: I seek leave to appear on behalf of the applicant in this matter.

PN2

MR T KUCERA: I seek leave to appear for the Construction, Forest, Mining and Energy union.

PN3

THE COMMISSIONER: Leave is granted gentlemen. Yes Mr Long?

PN4

MR LONG: Thank you Commissioner, this matter was last before the Commission on 28 July 2005 on application by John Holland for certification of an agreement known as the John Holland Pty Limited Western Region, New Metro Rail Package A Project Certified Agreement 2005.

PN5

The matter, Commissioner, as you will recall, was adjourned following the Commission's decision at that time not to certify the agreement on the basis of concerns raised about the certifiability of clause 7.5 dealing with the issue of employee training. And in particular I refer the Commission to clause 7.5.1 of the draft agreement as it then stood. That clause originally compelled the company to make training payments into the CFMEU Education and Training Fund, for the provision of training John Holland employees.

PN6

I can advise the Commission today that a revised clause has now been inserted into the amended draft agreement, copies of which I believe the Commission has now received. The affect of the revised clause, if I might take you to clause 7.5.1 of the amended draft Commissioner, says in its terms:

PN7

A training allowance must be paid by the company to a fund agreed upon by the company and the Union for the provision of training for employees covered by this agreement.

PN8

And then the clause continues. So the revised clause does not compel payments to be made into the Union fund, but rather requires agreement between the Union and the Company as to the type of fund into which these moneys are to be paid. If we have understood the Commission's earlier concerns expressed, that amendment by agreement should satisfy hopefully those concerns. One further and final amendment has been made to the draft agreement and that is at clause 7, specifically 7.1 right of entry, has now been - - -

PN9

THE COMMISSIONER: Before you depart from 7.5, you say it is a matter pertaining?

PN10

MR LONG: In our submission it is a matter pertaining, Commissioner. Although I was not appearing on the last application, I understand that the basis of the Commission's concern at that time was in relation to the proposition that training moneys ought to be paid only into one specified fund.

PN11

THE COMMISSIONER: No, my concern was, I was asking the parties did they think it was a matter pertaining.

PN12

MR LONG: Yes, well I am happy to make a brief submission in relation to that Commissioner.

PN13

THE COMMISSIONER: If you would thanks.

PN14

MR LONG: In our respectful submission in order to determine whether or not the particular clause in question satisfies the matter pertaining attest, it is necessary to go briefly to the genesis of that test, which as the Commission knows was expressed in the Electrolux decision previously enunciated by the High Court. Helpfully Commissioner, that matter was considered by the Full Bench of this Commission in the matter of Rural City of Murray Bridge Nursing Employees Enterprise Agreement 2004, an application before the Full Bench by the ANF and the Rural City of Murray Bridge in what was in fact, a trilogy of cases along with an application to certify an agreement called the Shefenacker Vision Systems Australia Certified Agreement, but also a third agreement known as the Latrobe University Children's Centre Enterprise Bargaining Agreement 2004.

PN15

I apologise Commissioner, for not having a copy of that decision to hand up to you, but may I refer briefly from the relevant parts of that judgment. At page 4 of that decision the Full Bench said:

PN16

Electrolux can be said to be authority for at least two propositions relevant to this case. The first is that earlier cases dealing with the construction of the term, 'Matter pertaining to the relationship of employers and employees' applies to the construction of section 170LI.

PN17

Then further on in that judgment at page 5 Commissioner, the Full Bench said:

PN18

The second important proposition to emerge from the case is that an agreement which contains a matter which does not pertain to the relationship of employers and employees subject to a qualification which we shall come to, cannot be the subject of a valid application for certification.

PN19

Which of course are both well understood principles both by this Commission and the Courts. The more relevant aspects of the judgment in our respectful submission, for the purposes of today's application, can be found on page 23 of that decision. That part of the decision, Commissioner, dealt with the issue of trade union training leave. The Full Bench was asked to consider in relation to a trade union training clause, whether or not that particular clause could be said to be a matter pertaining to the relationship between employer and employee in their capacity as such.

PN20

The conclusion reached by the Full Bench in that particular case was that a trade union training leave clause as proposed in the Shefenacker Certified Agreement, was in fact a matter pertaining to the relevant relationship. Indeed the Full Bench said at page 24 of that decision:

PN21

In our view the provision does pertain to the relevant relationship. It provides for paid leave of absence for a specified purpose. There is no basis for a distinction between a provision of paid leave of absence for that purpose and any other of the many purposes for which paid leave may be provided.

PN22

And further the Full Bench says:

PN23

Trade union training leave has for many years been regarded as a matter which pertains to the relevant relationship.

PN24

Then finally at paragraph 92 of the decision, the Full Bench says:

PN25

For these reasons we have concluded that the provision for shop steward training leave in Shefenacker pertains to the relevant relationship.

PN26

In our respectful submission, those comments are helpful and relevant to determining whether or not the particular clause in question today ought be regarded by the Commission as a matter pertaining. The parallel in our submission is clear, clause 7.5.1 effectively provides for the payment or a method by which payments can be made, in relation to the training to be provided by employees employed by John Holland.

PN27

As was indicated in the Full Bench's decision in Shefenacker, the relevant enquiry is to determine whether or not it is a clause providing for paid leave of absence for a specified purpose. And of course 7.5.1 is just that, providing - - -

PN28

THE COMMISSIONER: Just say that again?

PN29

MR LONG: We say that in order to determine whether or not the clause is a matter pertaining, it is relevant to enquire as to the purpose of the payment and the purpose of the payment in relation to clause 7.5 is to provide for the attendance of John Holland employees at certain training courses from time to time.

PN30

We would say the payment for an attendance at those training courses, in much the same way as the trade union training leave clause, would be a matter pertaining, is indeed a matter pertaining to the relationship between an employer and an employee in their capacity as such. So we say there is a clear parallel to be drawn between the type of trade union training leave provision under consideration in the Shefenacker decision and the particular clause which is before the commission this afternoon. In summary, it is our submission that on a proper application of the principles identified in Shefenacker together with the relevant clauses ….. in that case, it is readily open for the Commission to conclude that clause 7.5.1 is indeed a matter pertaining in the relevant sense and on that basis is capable of certification by this Commission, if it please you.

PN31

THE COMMISSIONER: Yes, thank you.

PN32

MR LONG: I might move on, Commissioner, at that point.

PN33

THE COMMISSIONER: Yes.

PN34

MR LONG: A further and final change has been made to the amended agreement. That is clause 7.1 right of entry, has now been deleted in favour of the statutory right of powers which are already set out under part 9 of the Act.

PN35

THE COMMISSIONER: Okay.

PN36

MR LONG: The Commission should also have before it a statutory declaration of Darren Nelson.

PN37

THE COMMISSIONER: Yes, I have.

PN38

MR LONG: Dated 2 September, and my learned friend advises me that he has also filed a statutory declaration dated 6 September.

PN39

THE COMMISSIONER: Yes, I have got that, yes.

PN40

MR LONG: And in view of the matters contained in those two statutory declarations, Commissioner, we submit that there is a proper evidentiary basis to satisfy the requirements under section 170LT of the Act, and accordingly respectfully request that the amended agreement before you be certified. Finally, Commissioner, in the event that the Commission proceeds to certify the agreement today, there is in any event a final submission which we would need to make in which we foreshadowed in correspondence to the Commission previously, dealing with the dismissal of certain other applications currently on foot.

PN41

THE COMMISSIONER: Yes, okay, thanks. Mr Kucera?

PN42

MR KUCERA: Yes, Senior Commissioner, we would submit that the agreement may be certified for the reasons that we would say that the agreement passes the no disadvantage test and all of the relevant material upon which you would need to base a decision that this agreement is capable of being certified is contained in the relevant statutory declarations, one that has been filed by myself the other that has been filed by Mr Nelson.

PN43

There are a number of other matters that we wish to raise, firstly in terms of the employee training, we would make a submission that the matter is a matter pertaining. I am not able to provide it now, Senior Commissioner, but I can provide it to you subsequently if you are amenable to that, there have been a number of agreements that have been certified in Victoria for the building and construction industry that contain a similar provision for the payment of training levies and the provision of training to employees. Those agreements provide for the payment of training levies to a fund that has been agreed upon by the parties to the agreement. The advice I have received is that the Commission has already certified those agreements on the basis that it is a matter pertaining.

PN44

Another way of looking at the relevant employee training provision is simply this, is that the agreement contains provisions relating to the provision of income protection insurance and other type of insurances that are provided under the agreement. Those matters have elsewhere in decisions of the Commission, been found to be matters that pertain to the employment relationship. What we submit is another way of looking at it is - and I think the analogist suggestion was, that was made by my friend Mr Long, was that employee training could be looked at in the same way as trade union training leave. Well another analogist situation is I suppose the contingent benefits that exist in relation to the provision of income protection insurances.

PN45

Funds in that sense have been set aside for the provision of income protection insurances in the event employees are required to submit claims for injuries that they sustained when they are sick and injured but do not arise in the course of their employment. We would say that the position is much the same for training, where an employee needs to obtain further training that is both of direct benefit to him and to his employer, there has been provisions set aside so that that employee would be able to obtain training at no cost to the employer. We would submit that it is a reality that employees on this project would be required to undertake training during the life of the agreement because there are more and more tougher industry training requirements, as an example I suppose I would refer to green cards, tilt up and precast construction methods now require training courses to be undertaken.

PN46

There is also traffic controlling because this project is in close proximity to freeway and other busy traffic areas. As we would submit, Senior Commissioner, there is obviously going to be a direct and tangible benefit for both the employer and the employee. What the payment of the training funds do is that there is money set aside for the payment of that training so that it is at no cost to the employee. But additionally if you look at the clause in totality what it does is it also provides for a process by which the employee applies for training, that training is approved so that there is minimal disruption to the employer's operations. Ultimately we would conclude that in our submission, that it is a matter that pertains to the employment relationship and on that basis we would say is capable of inclusion in an agreement that can be certified by you.

PN47

The agreement, Senior Commissioner, contains a dispute resolution procedure. In our respectful submission the agreement should be certified on the basis that the Commission is empowered to settle disputes over the application and operation of the agreement as contemplated by section 170LW. This is a project of considerable importance to the public, as has been submitted by a number of people, not just myself by my friends in other proceedings and other people, and on that basis we would say that it is desirable in the public interest that the Commission be empowered to settle disputes as contemplated by that section of the Act.

PN48

Beyond that, Senior Commissioner, I do not have any further submissions to make, other than to say that the right of entry provision was removed from the agreement by way of clarification more than anything, there was correspondence that was sent to the employer regarding this and it was agreed that right of entry would be exercised in accordance with the applicable provisions under the Industrial Relations Act, so sections 49(h) and 49(i) of the State Industrial Relations Act. Beyond that Senior Commissioner, I do not have anything further to submit, and as I submitted earlier I am happy to provide you with print references in relation to those Victorian agreements that now contain similar training provisions.

PN49

THE COMMISSIONER: Okay, all right. I am just going to adjourn for a couple of minutes to consider that argument on the matter pertaining, I will be back in a little while and give you my answer then. Thank you.

<SHORT ADJOURNMENT [2.19PM]
<RESUMED [2.27PM]

PN50

THE COMMISSIONER: I just wanted to look at some case law because this is worrying me. This is what I am thinking at the moment, I do not think Shefenacker is on point. Trade union training leave is not an analogist to what is proposed by this clause.

<OFF THE RECORD

PN51

THE COMMISSIONER: The Commission has had a conference with the parties off the record and will now adjourn until a time to be advised to the parties, to further deal with this matter.

<SHORT ADJOURNMENT [2.29PM]
<RESUMED [2.35PM]

PN52

THE COMMISSIONER: Thanks gentlemen, please be seated. Really, the last matter before we adjourned, I can now - I have had long enough at a keyboard to get the authority - 172127CLR353 re Portis ex parte ANZ Banking Group Limited, Industrial Law 101, and it is Steven J.

PN53

Near the end of his reason for decision at the top of the page, he talks about the relations of employers and employees and says:

PN54

I would conclude that this is not such a dispute and would do so for the reason that it does not appear to me that either of the broad aspects which the relations of employers and employees are concerned, namely the performance of work by the employee and the receipt of reward for that work from the employer.

PN55

I did not, when we were previously together yesterday deal with the other four matters because Mr Long your letter had made the disposition of those conditional upon the certification.

PN56

MR LONG: Yes.

PN57

THE COMMISSIONER: And I just assumed wrongly it appears, that you would want to leave that. I am happy to deal with them and to identify them as application C205 of 1080, an application to stop prevent industrial action, application BP20051050 application for initiation of a bargaining period. Application BP2051064 application for termination of bargaining period and application AG205 of 2124 application to certify an agreement. They are the issues now I raise for you to address me on if you wish?

PN58

MR LONG: Firstly I would thank the Commissioner for drawing that authority to our attention and obviously we will develop some further submissions in relation to that point before the Commission - - -

PN59

THE COMMISSIONER: Can I suggest it might be useful if you just put them in in writing so that you do not have to come back? It might be that that might expedite the matter for you if there is a satisfactory answer and the parties can have a discussion about what they are going to put in. I am saying that because I have got work out of the city in the next few days, but a written submission will find me and I will be able to deal with it while I am away rather than waiting for when I come back. I am happy to do that if that is what the parties wish?

PN60

MR LONG: We would be happy with that course, Commissioner and to make arrangements between the parties formerly for an exchange of those submissions.

PN61

THE COMMISSIONER: Yes, thank you very much.

PN62

MR LONG: Finally, in having obtained some further instructions, Commissioner, we would like to continue the course set out in the earlier correspondence. That is that the balance of those applications that the Commissioner just referred to, in fact be held over pending the outcome of the Commission's deliberations on the certification.

PN63

THE COMMISSIONER: Okay.

PN64

MR LONG: Thank you.

PN65

THE COMMISSIONER: All right, fine. Do you agree to that Mr Kucera?

PN66

MR KUCERA: I am not adverse to it Senior Commissioner.

PN67

THE COMMISSIONER: Yes, well they will be held over pending the outcome of the certification of 2214. If you just stay in contact with Madam Associate, because she will be in my chambers for the next few days and she will be able to contact me all the time and I would be happy to deal with the matter as I say, while I am away. So thank you very much gentlemen, the Commission is now adjourned.

<ADJOURNED INDEFINITELY [2.39PM]