AG2004/8848, Transcript of Proceedings [2005] AIRCTrans 196 (31 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10097

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2004/8848

s.170LK - agreement with employees (division 2)

APPLICATION BY ENDEAVOUR PETROLEUM PTY LTD
(AG2004/8848)

SYDNEY

12.47PM, TUESDAY, 18 JANUARY 2005

PN1

MR B THOMPSON: I seek leave to appear on behalf of the employer, Endeavour Petroleum Pty Ltd in relation to this agreement, which has been made in accordance with section 170LK of the Workplace Relations Act. We seek to have this agreement certified pursuant to section 170LT of the Act.

PN2

MR J RYAN: I appear for the Shop Distributive and Allied Employees Association, and I appear in this matter pursuant to section 43(2)(a) of the Workplace Relations Act, and I do so on the basis that the association was requested by an employee to meet and confer with the employer, pursuant to section 170L, or as a result of the notice being given by the employer, pursuant to section 170LK(4). The association did meet and confer with the employer, pursuant to section 170LK(5). In order to ensure that the employer understood its obligations to meet and confer with the union, and that we were properly authorised pursuant to section 170LK(4), the association did obtain a certificate under section 170LKA.

PN3

THE SENIOR DEPUTY PRESIDENT: Which the Commission now has on the file?

PN4

MR RYAN: Yes. And on the basis of that certificate, that stands as proof of the status of the association being requested to meet and confer with the employer, and we would submit that pursuant to section 43(2)(a) we are now a party to - pursuant to the language of 43(2)(a) the Commission must, on application, grant leave to us to intervene in these proceedings. We formally seek that leave. If the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: When you read section 43(2), after section (a) there is a semi-colon and the word "and", and then it goes on to (b). Is the SDA an organisation that proposes to be bound by the agreement?

PN6

MR RYAN: No. But we are not relying upon 43(2)(b). We are relying upon 43(2)(a). Because 43(2)(b) is an exception, or it says:

PN7

Except as mentioned in paragraph (a).

PN8

So if an organisation falls within paragraph (a) then that stands alone. If the organisation does not fall within paragraph (a) then they must not be granted leave to intervene, except if they are proposing to be bound by the agreement. But as we only rely upon 43(2)(a) we don't need to address any of the issues of 43(2)(b). If the Commission pleases.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Ryan. Mr Thompson, what would you like to say on the matter?

PN10

MR THOMPSON: Your Honour, in relation to the certificate mentioned by my friend Mr Ryan it may - I also don't question that a certificate has been issued. I wonder how the registry, in issuing such a certificate, has managed to determine that the employee, or the alleged employee who claims to be represented by the SDA is actually an employee? What I would like to do is hand up to your Honour a copy of a list of employees who are employees covered by the agreement just so that we can determine that the employee who has requested such representation is, in fact, an employee covered by the agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: When you read section 170LKA that is the basis on which the Deputy Industrial Registrar, or the Registrar more correctly, may issue a certificate. And it says:

PN12

If a Registrar is satisfied (a) on application by an organisation of employees that an employee has made a request in accordance with subsection 170LK(4) to the organisation who represent the employee in a meeting conferring with the employer about a proposed agreement; or (b) on application by an employer that after making such a request the requirement of subsection 170LK(5) for the employer to give a reasonable opportunity to the organisation to meet and confer about the proposed agreement has, because of subsection 170LK(6) ceased to apply to the employee the registrar may issue a certificate to that effect.

PN13

Then it goes on, in subsection(2):

PN14

The certificate must not identify any of the employees concerned. However it must identify the organisation, the employer and the proposed agreement. (3) the certificate is for all purposes of this Act evidence that the employee or employees made the request, or that the requirement has ceased to apply.

PN15

You will appreciate from that that the certificate I have before me doesn't specify the name of an employee and, in fact, it is the responsibility of the Registrar, in accordance with that section, to be satisfied that an employee has made a request in the relevant section.

PN16

MR THOMPSON: I only make the suggestion because I know that my client, the employer in these circumstances, was never asked to confirm that any request was made by an actual employee. I, for the purposes of completeness, did ask my client to provide a list of employees so that we might check this fact. But up until this point I don't know that it has been verified. I understand your point though, your Honour, regarding the fact that the certificate stands alone as evidence, and remain somewhat concerned that neither myself nor my client has been involved in verifying any such request. And for the record, I have been a party to a number of other applications where it has eventuated that requests for representation have not been made by people who are employees, or covered by the agreement.

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, anything further you wish to add?

PN18

MR RYAN: I have become very athletic jumping through the hoops that the Registrar has set. If the Commission pleases.

PN19

THE SENIOR DEPUTY PRESIDENT: You are certainly looking very fit and lean Mr Ryan. Gentlemen, unless there is anything further, I propose to adjourn, and unless other matters preclude this course, to reconvene at 1.45. But that will only be a very short re-convention, because you will have noticed from the listings that I have listings from two o'clock on. So in other words, that will be brief.

<LUNCHEON ADJOURNMENT [1.05 PM]
<RESUMED [1.48 PM]

PN20

THE SENIOR DEPUTY PRESIDENT: Ladies and gentlemen, I have had the opportunity to consider what has been put in relation to Mr Ryan's application for leave to - Mr Ryan just remind me, in all the organising of papers to resume this one, and also to begin video conferences down at level seven at 2 pm., in relation to Endeavour Petroleum, the application was for - - -

PN21

MR RYAN: It is by the association for leave to intervene, pursuant to section 43(2)(a).

PN22

THE SENIOR DEPUTY PRESIDENT: So it is the application for the SDA to intervene?

PN23

MR RYAN: Yes. And that is relying upon the certificate issued under 170LKA.

PN24

THE SENIOR DEPUTY PRESIDENT: Indeed. So I had it right but I just hesitated when I opened the file again. Having considered the matter I am satisfied that I should grant leave to the SDA to intervene in that matter, on the basis of section 43(2)(a), and the certificate which has been handed up. I think also, Mr Thompson, when we called the matter on I may not have actually granted you leave to appear as well, which I now do. In discussions with my associate about the time for listing of this matter, I think there was the request from the SDA that subject to having standing to intervene, that there would be a request for access to the file and, accordingly, adjournment would be appropriate in that case?

PN25

MR RYAN: Yes, we would seek to have access to the file for the purposes of copying the material on the file, and particularly the statutory declaration, so that we can give proper consideration to that, and it would be our intention to cross-examine the deponent of that statutory declaration to rely upon the certification process.

PN26

THE SENIOR DEPUTY PRESIDENT: Mr Thompson, anything you want to say in relation to that?

PN27

MR THOMPSON: Only that for the expediency it might be useful that if after having a chance to review the file the SDA could make any written submissions prior to a hearing, whether than cross-examining. I was thinking of ways that we might be able to expedite the process, and written submissions by that party might be helpful.

PN28

THE SENIOR DEPUTY PRESIDENT: And are there views on the appropriate location of any further proceedings?

PN29

MR THOMPSON: In Sydney.

PN30

THE SENIOR DEPUTY PRESIDENT: The reason I raise that is that there was correspondence about a video conference.

PN31

MR THOMPSON: Yes. We are instructed by a client in Victoria, but they have requested that the matter be heard in Sydney, with us in Sydney. That is our instructions from that party.

PN32

THE SENIOR DEPUTY PRESIDENT: Mr Ryan.

PN33

MR RYAN: Obviously I would prefer it in Melbourne to save the expense, but to the extent that if the employer is asking for it to be dealt with in Sydney we can certainly come up to Sydney whenever required.

PN34

THE SENIOR DEPUTY PRESIDENT: Gentlemen, in relation to timing, what would be an appropriate adjournment, in your estimation?

PN35

MR THOMPSON: As soon as possible. We are prepared for the matter now, but in relation to timing, I would also ask that given that the proceedings have commenced today, and given that the issues that have necessitated the making of this agreement is the introduction of the common rule awards in Victoria, and that now time is of the essence because those awards have been introduced, that the Commission consider whether or not any such application for certification might be back dated to today's date, if that application is successful?

PN36

THE SENIOR DEPUTY PRESIDENT: That is a matter that could be argued when the matter is set down, but just thinking about availability, the second half of next week would give everybody sufficient time?

PN37

MR RYAN: Absolutely.

PN38

MR THOMPSON: Thursday next week. Friday I am out.

PN39

THE SENIOR DEPUTY PRESIDENT: So your request is that it be the Thursday of next week?

PN40

MR THOMPSON: Wednesday or Thursday, yes.

PN41

THE SENIOR DEPUTY PRESIDENT: Wednesday is the Australia Day holiday.

PN42

MR THOMPSON: Sorry, Thursday.

PN43

THE SENIOR DEPUTY PRESIDENT: My chambers will send out the listing but as things stand at the moment Thursday is a possibility, and we will proceed on that basis unless something else gets in the way. On that basis we will adjourn the Endeavour Petroleum matter.

<ADJOURNED ACCORDINGLY [1.54 PM]