AG2005/2279, Transcript of Proceedings [2005] AIRCTrans 2044 (4 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12889-1

DEPUTY PRESIDENT MCCARTHY

AG2005/2279 AG2005/2278 AG2005/2280 AG2005/2281

APPLICATION BY BRUNEL TECHNICAL SERVICES OFFSHORE PTY LTD & AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-WESTERN AUSTRALIAN BRANCH AND OTHERS
s.170LL- Greenfields agreement (Division 2)
(AG2005/2279)

APPLICATION BY BRUNEL TECHNICAL SERVICES OFFSHORE PTY LTD
s.170XF determination of designated award
(AG2005/2278)

APPLICATION BY TOTAL MARINE SERVICES PTY LTD
s.170XF determination of designated award
(AG2005/2280)

APPLICATION BY TOTAL MARINE SERVICES PTY LTD & AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-WESTERN AUSTRALIAN BRANCH AND OTHERS
s.170LL- Greenfields agreement (Division 2)
(AG2005/2281)

PERTH

12.00PM, TUESDAY, 20 SEPTEMBER 2005

PN1

THE DEPUTY PRESIDENT: I will deal with all of these matters together.

PN2

MR L JOYCE: I appear on behalf of the Australian Mines and Metals Association. I seek leave to appear as agent on behalf of Brunel Technical Services in matter 2279 of 2005.

PN3

MR M LLEWELLEN: I appear on behalf of Total Marine Services Pty Ltd in matters AG2005/2280 and AG2005/2281.

PN4

MR D McLANE: I appear on behalf of the AMWU.

PN5

MR L EDMONDS: I appear on behalf of the CEPU in all three matters, sir.

PN6

MR W ALLEN: I appear on behalf of the AWU.

PN7

THE DEPUTY PRESIDENT: Can we deal with the XF applications first. I take it there is no award that applies to employees of these companies either federal or state, is that the case?

PN8

MR LLEWELLEN: In terms of the Metal Trades General Award applies by manner of common rule the work being undertaken falls within, well, most of it falls within the boundaries of the state award in any event. That award would be binding in terms of certainly a number of the classifications covered by the agreement for both Brunel and for Total Marine Services. The other agreement we have named for the sake of completeness is the AWU Construction and Maintenance (Western Australia) Award 2003 which is the other award that has been used to cover pipeline work in Western Australia, the pipeline construction work.

PN9

In a technical sense the metal trades general applies, however, some of the work will be done outside of Western Australian state awards even though it is starting in orders allocated to the state, but it will get outside that 15 mile radius in which case technically out there the state award wouldn't apply and the federal awards would. The relevant federal awards in relation to the metal trades area isn't binding on either of the parties, however, the metal trades general state award is in the same terms so we would simply seek to have the metal trades general and the AWU Construction and Maintenance (Western Australia) Award 2003 as the designated awards.

PN10

THE DEPUTY PRESIDENT: But there are relevant awards that apply, that is what I am getting a bit confused about.

PN11

MR LLEWELLEN: Well, the metal trades general is a relevant award that does apply to the work, yes, and that is named as the XF as well.

PN12

THE DEPUTY PRESIDENT: If it applies, why does it have to be named is what I am getting at.

PN13

MR LLEWELLEN: I suppose because neither of the parties are respondent to it and it doesn't cover all the work, being the fact that it will extend outside of the state boundary. While it commences inside the state boundary it extends outside of the state boundary. Now, I am not sure whether that then makes the work outside of the state boundary relevant because that award doesn't have application outside of the state of Western Australia so the application is made more to ensure completeness then anything else.

PN14

THE DEPUTY PRESIDENT: Yes. I just have reservations as to whether it needs to be done I suppose. What you are saying is it will provide certainty if there is an element of uncertainty so it will ensure that there is certainty. That is what you are saying?

PN15

MR LLEWELLEN: I only know my previous experience in the state Commission where I think it was Commissioner Kenner at the time pointed out, well, actually it was Commissioner Gregor, pointed out to me at the time, that once outside the state boundary the award doesn't apply and the union doesn't have any jurisdiction as a result of it.

PN16

THE DEPUTY PRESIDENT: That might be under the state Act but the provisions of this Act really require that an award applies to regulating any term and condition of persons engaged in the same kind of work as that of the person under the agreement. It doesn't mean that the award necessarily has to have application in the area for the work.

PN17

MR LLEWELLEN: In that case the metal trades general would fall under that category.

PN18

THE DEPUTY PRESIDENT: Yes, as a relevant award even though it may not have operation.

PN19

MR LLEWELLEN: It is binding by effect of common rule in the state of Western Australia.

PN20

THE DEPUTY PRESIDENT: Yes, does anyone else have any views of that?

PN21

MR McLANE: I will just support that, sir, and say that it certainly applies at the time of the making of this agreement.

PN22

THE DEPUTY PRESIDENT: Yes, two persons engaged in the same type of works and therefore there is no need for a designation.

PN23

MR McLANE: That is correct, sir.

PN24

THE DEPUTY PRESIDENT: Yes. There was also the AWU Construction and Maintenance (Western Australia) that was being sought to be designated for the Cliff Head agreement; does anyone want to address me on that? I am not sure of the circumstances there as to whether it applies or not. You should have some familiarity with that, Mr Llewellen.

PN25

MR LLEWELLEN: I have got a vague recollection of it, yes. Sir, essentially, that was to cover positions not covered by the Metal Trades General Award. The award has been applied in terms of the pipeline construction for the ….. Project also the Rollerskate Development Projects which are all projects of the same ilk as this. It doesn't cover, however, tradespersons which the metal trades general does pick up. So while the metal trades general does apply to the majority of employees it won't have the scope to cover all of the employees and those that fall out of that scope are picked up by the AWU Construction and Maintenance 2003.

PN26

THE DEPUTY PRESIDENT: I see. I will have a think about that.

PN27

MR LLEWELLEN: Although it doesn't affect us now, ..... classifications, for example, aren't picked up in the metal trades general and they are picked up in the AWU Construction and Maintenance.

PN28

THE DEPUTY PRESIDENT: I will have to have a closer look as to whether there needs to be designation for that circumstance. On the broader aspects of the agreements each should have received a provisional certification report identifying a provisional assessment as to whether the agreements have been made in accordance with the requirements of the Act and whether they contained provisions in the agreement that enabled the agreements to be certified.

PN29

There was only one element of both agreements that I drew to your attention that was the right of entry clause in each of the agreements and they appear to be the same provision, the terms appear to be identical. Clause 22 which seem to be quite open ended and the issue arises as to whether the provision falls within the requirements of the Act and in particular section 170LI that they are pertaining to the relevant relationship. Does anyone want to address me on that?

PN30

MR JOYCE: Your Honour, just by way of very brief background. My understanding is that the agreements before you this morning replicate a previous agreement that was certified by the Commission, the OIS MOC Joint Venture Pty Ltd John Brookes Project Agreement and that agreement contained an identical right of entry clause. Since that time, your Honour, as I am sure you would be aware there has been a couple of Full Bench decisions that have looked at the issue of right of entry provisions. The Schefenacker decision from 18 March 2005 in PR956575 and a very recent decision on 9 September 2005 a Full Bench decision involving a series of appeals against decisions by Senior Deputy President Lloyd in PR962259.

PN31

Those Full Bench decisions, your Honour, looked at the issue of whether a right of entry clause could be regarded as being confined or unconfined. If it was unconfined then essentially the Full Bench commented that it probably then didn't pertain to the employment relationship. Our submission today to you though, your Honour, is that the right of entry provision is confined to some extent but perhaps more importantly we would put to you, your Honour, that it is ancillary to other matters within the agreement that do pertain to the employment relationship and in particular the disputes settlement procedure in clause 16, your Honour, makes reference to the involvement of the union ultimately if the dispute procedure up to that point isn't successful.

PN32

That line of argument, your Honour, we believe is consistent with a 2004 decision of yours involving a series of ..... upgrade decisions where the issue of ancillary too was dealt with by yourself.

PN33

In the present case, your Honour, the clause covers access to a work site occupied by an employer, it is confined to working hours, and it is confined to where union members are engaged. Access is limited to an authorised official of a union party to the agreement and to that extent, your Honour, we say that the clause itself is confined at least to some to some extent in its application. The agreement does refer to involvement of the union in other parts throughout the agreement, most notably in the disputes settlement clause, but there is also reference in the shop steward's clause, clause 23 and the no extra claims clause.

PN34

In short, your Honour, we would say that the right of entry clause does facilitate the disputes settlement procedure and, as such, it could be held to be a clause that is ancillary to the operation of the disputes settlement clause and, as you would be aware, your Honour, section 89A(6) of the Act does contemplate the inclusion of matters that are ancillary to the matter that does pertain to the employment relationship. On that basis, your Honour, we are of the view that the right of entry clause should be allowed on the basis that it is an ancillary provision to most notably the disputes settlement procedure, but also other clauses in the agreement. Thank you, your Honour.

PN35

THE DEPUTY PRESIDENT: It reads very similarly to the clause that was considered in one of those cases you referred to quite recently a Full Bench decision which was quite recent, and in that majority decision such a clause was found to be not pertaining because it was capable of use of purpose extraneous to the relevant relationship because it was unconfined in its scope therefore it didn't pertain. How is this clause any different to that, and if it isn't, am I obliged to follow that Full Bench decision.

PN36

MR JOYCE: Your Honour, I guess convention would dictate that you are compelled to follow the Full Bench decision.

PN37

THE DEPUTY PRESIDENT: I would have thought so.

PN38

MR JOYCE: If we argue that it is ancillary and succeed on that basis versus you being upheld to follow the Full Bench decision, I guess it is a matter for the Commission to decide, but as you point out, your Honour - - -

PN39

THE DEPUTY PRESIDENT: Well, if it is ancillary here it would have been ancillary there presumably for similar sorts of clauses in the agreement that was under consideration there, the agreements.

PN40

MR JOYCE: The Full Bench in that decision, your Honour, didn't address at all the issue of whether it was ancillary or not it only looked at whether it was confined and the majority at least followed the Schefenacker decision to that extent, but the issue of whether it was ancillary was not addressed at all.

PN41

THE DEPUTY PRESIDENT: Well, my understanding of ancillary in the terms that it is usually used, Mr Joyce, is that it is essential to the operation of the agreement. Is that the case here?

PN42

MR JOYCE: We would say that it is, your Honour, particularly in the disputes settlement procedure. The involvement of the union is essentially the last part of that process and conceivably the union would be required on site in the event that a dispute did arise and it hadn't been resolved through the procedure up to the point where involvement of the union could be sought.

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR JOYCE: Nothing more from me, your Honour.

PN45

MR LLEWELLEN: Sir, I am going to adopt the submissions of my friend. Probably, I guess, another leg in terms of its relationship and that is that the agreements we seek to have everything contained in the agreement which allows the employees to understand their rights and abilities under the terms of the certified agreement between the employer and the employees and those employee's rights and access.

PN46

In terms of clause 22, and the reason why we say it is ancillary is that it provides the employees with the knowledge of how to get access and how their officials get access to them on the job to facilitate the dispute settlement procedure. Now, that comes from - and it is different to the terms couched in the Act and it is different in terms couched and I am not sure whether I am looking at the same majority decision you referred to, but it is the BAM Wine Logistics Pty Ltd and the National Union of Workers decision.

PN47

THE DEPUTY PRESIDENT: Yes, that is the same one.

PN48

MR LLEWELLEN: Where the provisions contained in paragraph 32 of that decision essentially in the great part simply replicate the Act. Now, in terms of this agreement and the submission of my friend, one, it doesn't replicate the act the other it limits the unions authorised to enter to have members that are employed on the project under this agreement whereas the Act provides any union to have access for any member that essentially that they can cover, but it provides the employees with the knowledge on how their union gets the access to actually meet with them on the job in terms of dispute settlement and what have you or matters relating to the project.

PN49

Now, in terms of, and I am sure the Commission as currently constituted is familiar with a number of disputes that have been had about how people get access to a site. Those matters have been before the Federal Court and other areas now we seek to circumvent those disputes by making the agreement plain on its face. Now, on that basis, we would seek to have the provision maintained in the agreement if we can. I mean, obviously, if we can't then I will need to find some other method of giving effect to it.

PN50

THE DEPUTY PRESIDENT: I hear what you are saying, Mr Llewellen, but it looks remarkably like the clause that is expressed in general terms, capable of use for purpose extraneous to the relevant relationship, unconfined in scope, therefore, doesn't pertain.

PN51

MR LLEWELLEN: Well, the only other method is to either to try and constrain it if that is your view.

PN52

THE DEPUTY PRESIDENT: I am just asking the question, I haven't formed a view.

PN53

MR LLEWELLEN: Look, certainly in terms of our view it is constrained to a greater extent then the Act and a greater extent then the decision in BAM and that is just simply sitting the clauses side by side currently. I mean, my reading of the BAM case is that the provision is basically a replication of the Act, whereas, these provisions aren't, so it is not an unlimited provision in terms of - as section 285 of the Act pertains to right of entry. But other then that, I can't take it much further then that because, I mean, the clause reads as it reads.

PN54

THE DEPUTY PRESIDENT: Yes, thank you.

PN55

MR LLEWELLEN: But it does notify the person that has to be informed rather than simply the occupier or owner of the premises. The other thing while I am on my feet if I can is I have emailed your associate a couple of errors in the agreements if you would like to deal with them now or deal with them later?

PN56

THE DEPUTY PRESIDENT: Deal with them now.

PN57

MR LLEWELLEN: Sir, they were two items that were contained and it was to flow through from the change of the ordinary hours from 7.6 to 7.2 hours. Unfortunately, in clause 10.3, and the copy I have highlighted I sent to your associate actually has the highlighting showing the variations. In 10.3, the maximum hours should have been 7.2 whereas the agreement reads 7.6, the agreement as filed. The other error was in 12.10 where, again, for the calculation of shift allowance on ordinary hours, the ordinary hours were reflected as 7.6 where they should have been 7.2.

PN58

THE DEPUTY PRESIDENT: Yes. Is that a change from the vesting standards? Perhaps I ask that question is when the agreement was explained to employees would they have understood it to be 7.2?

PN59

MR LLEWELLEN: It is actually a greenfields agreement.

PN60

THE DEPUTY PRESIDENT: I understand that.

PN61

MR LLEWELLEN: The employees we had in yesterday, yes, a copy of this agreement has been provided to them and that is the amended agreement.

PN62

THE DEPUTY PRESIDENT: And when it was explained - I see, it is a greenfields agreement, yes, I see.

PN63

MR LLEWELLEN: But in terms of the fact that the employees - - -

PN64

THE DEPUTY PRESIDENT: So there is no necessity to explain, yes, okay.

PN65

MR LLEWELLEN: All employees are being provided with copies of the certified agreement.

PN66

THE DEPUTY PRESIDENT: Yes. The other agreement is a greenfields agreement, too, isn't it?

PN67

MR LLEWELLEN: They are both the same.

PN68

THE DEPUTY PRESIDENT: Yes, okay, that overcomes that potential barrier. Yes, I will take that typographical error unless anyone has any view to the contrary and the agreement will be amended accordingly.

PN69

MR LLEWELLEN: Sir, I have nothing else to add.

PN70

MR McLANE: Sir, I support the submissions made by my friends from the employers. The majority decision which has been referred to is one that the Commission as currently constituted is extremely familiar with. I accept, sir, that the Commission is bound by custom to follow the majority as admitted by
Mr Joyce. I would take it a step further and say that the Commission is also caught by the doctrine of precedent ..... but I make submissions, sir, that the clause in the agreement that we are currently seeking to get through is distinguishable to the clause in that decision.

PN71

It is certainly distinguishable in the minds of the parties, sir, and it also does specifically refer to the union covered by this agreement or the employees from any place or premises wherein members of that union covered by this agreement are engaged. I will submit that that narrows the clause somewhat, sir, to matters that pertain and matters that pertain arising under the agreement. Now, it can say that clearer then it does, but certainly in the mind of the union and the understanding of the union that I represent we understand that to mean a right of entry in relation to matters covered or arising under this agreement.

PN72

THE DEPUTY PRESIDENT: They were the types of submissions the NUW made in that case I referred to, Mr McLane.

PN73

MR McLANE: There is a couple of places as well as the settlement of disputes procedure, sir, at 16. I would also argue that it comes into play at clause 17 which is the discipline of employees where the shop steward is brought into that procedure, and I say that implicit in that, sir, is the somewhat obvious, I would submit, that if the shop steward is notified and needs some help with that that they are going to ask for an official of the unions involvement. Potentially under the safety provision as well at 19, sir, and it is not one, sir, where, you know, our organisers can jump in a row boat and knock on the employer's door. It is dependent on the appropriate travel arrangements being made, so I argue, sir, that it is distinguishable, that it does pertain and that it is narrow in its interpretation, if the Commission pleases.

PN74

THE DEPUTY PRESIDENT: Mr Edmonds?

PN75

MR EDMONDS: Thank you, sir, I have got nothing further to add to those previous submissions, sir.

PN76

MR McLANE: You could at least support it.

PN77

MR EDMONDS: Well, I mean, I will certainly adopt all the previous submissions, sir.

PN78

MR ALLEN: And I concur and support it as well, sir.

PN79

THE DEPUTY PRESIDENT: Mr Joyce, can I come back to you. Perhaps just go off record for a moment, go off record.

<OFF THE RECORD

PN80

THE DEPUTY PRESIDENT: Mr Joyce, I understand you have a suggestion to make as to how this can be progressed.

PN81

MR JOYCE: Thanks, your Honour. Your Honour, in light of these submissions to date and particularly in light of the Full Bench decision that the parties have considered and the issues that you have raised, can I request that these proceedings are adjourned before you determine the matter finally to allow the parties to put to you further submissions in relation to the issue raised by you in your ..... that is whether the right of entry clause does change the employment relationship.

PN82

That is probably an important thing for us to do, your Honour, given that work is due to commence in the next week or thereabouts on this project and given that it is before you as a greenfields application we would seek that adjournment.

PN83

THE DEPUTY PRESIDENT: Yes, I take it no one else has any objection to that course, I will adopt that course, the matter is adjourned.

<ADJOURNED INDEFINITELY [12.32PM]