AG2005/2270, Transcript of Proceedings [2005] AIRCTrans 2060 (5 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12916-1

DEPUTY PRESIDENT MCCARTHY

AG2005/2270

APPLICATION BY LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION-WESTERN AUSTRALIAN BRANCH & COCA-COLA AMATIL (AUST) PTY LTD AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/2270)

PERTH

3.30PM, WEDNESDAY, 21 SEPTEMBER 2005

Reserved for Decision

PN1

MR J NICHOLAS: I am seeking leave to appear on behalf of the LHMU.

PN2

MR D MCLANE: Good afternoon, sir. If it pleases the Commission I appear on behalf of the AMWU.

PN3

MS A HARTLEY: If the Commission pleases, counsel seeking leave to appear for Coca Cola Amatil Australia Proprietary Limited.

PN4

THE DEPUTY PRESIDENT: Mr Nicholas, do you need leave?

PN5

MR NICHOLAS: Yes sir, I do. There is probably – since the last time I appeared before you I have received permission to appear as a solicitor. I have the - - -

PN6

THE DEPUTY PRESIDENT: Are you an employee of the LHMU?

PN7

MR NICHOLAS: I am an employee, sir, so in that respect I appear as a solicitor.

PN8

THE DEPUTY PRESIDENT: I don’t think you need leave, but if it is needed it is granted. There is no objection to Ms Hartley being granted leave, so she has been. Mr Nicholas.

PN9

MR NICHOLAS: Sir, the certification report in this matter raised essentially one issue with the agreement which related to clause 3.6.

PN10

THE DEPUTY PRESIDENT: Yes. I should have said at the outset with respect to the meeting of the requirements of the Act, in so far as the making of the agreement I am satisfied that the requirements have been met based on the materials that have been lodged. With respect to the content of the agreement, aside from the one clause I have identified as needing explanation, I am satisfied the agreement is such that it should be certified. So it is really a question of that one item I have identified, clause 3.6 isn’t it?

PN11

MR NICHOLAS: That is right, sir.

PN12

THE DEPUTY PRESIDENT: Yes, that is all I need addressing on.

PN13

MR NICHOLAS: Sir, clause 3.6 deals with indirect employment. I have written submissions here that I will be referring to throughout my submissions and I could provide a copy to the Commission if it would be of assistance.

PN14

THE DEPUTY PRESIDENT: That would be of assistance. Thank you.

PN15

MR NICHOLAS: Sir, the first part of my submission basically outlines the nature of the submissions in paragraph 1. Paragraph 2 sets out the relevant provision, 170LI of the Act. Then I go on to outline some of the Full Bench decisions that have dealt with these, with clauses of this kind, the first being Schefenacker. I can provide the citations for those cases if it would be of any assistance, or otherwise I can just press on.

PN16

Sir, in relation to Schefenacker, at paragraph 47 of that decision the Full Bench outlined the approach to be taken in relation to determining whether an agreement fell within the provisions of 170LI(1), so I would refer to that, and I don’t propose to read that out unless that would be of assistance. The clause in the agreement, clause 3.6, entitled, "Indirect employment", probably is of some assistance if I read that out. It provides:

PN17

The parties agree not to undermine the integrity of workplace safety ...(reads)... casual labour hire covering planned and unplanned absences.

PN18

The second paragraph goes on:

PN19

CCA will not enter into any contract with a contract labour supplier or contractor unless the terms and conditions of any labour supplied there under are no less that those provided under this agreement and the relevant award, including:
1. Standard business stream hours
2. Shift arrangements consistent with at ..... and relevant patterns
3. Rates of pay reflecting skill structure
4. Environmental OH&S policies and procedures
5. Relevant grievance procedures, and
6. Any other matters as agreed between the parties

PN20

Sir, our submission is clear that clause 3.6 is a discreet, substantive and significant provision for the purposes of considering whether it falls within the requirements of 170LI. The primary question then is whether clause 3.6 is about a matter that pertains to a relationship between the particular employer in its capacity as employer, and its employees in their capacity as employees.

PN21

The authorities dealing with this question as to whether particular contractor provisions fall within the relationship have drawn out a process of characterisation whereby the Commission has to decide whether the particular provision falls either side of a line. On one side of the line which is not impermissible are things outside the employment relationship.

PN22

THE DEPUTY PRESIDENT: Where is the line? If it is either side of a line the line has to be somewhere. So where is the line?

PN23

MR NICHOLAS: Sir, the line clearly is the provisions of 170LI. I’m sorry sir, I was wondering whether that was a rhetorical question.

PN24

THE DEPUTY PRESIDENT: No, I’m asking seriously Mr Nicholas.

PN25

MR NICHOLAS: Definitely sir, it is clear that the line is provided by 170LI, and there couldn’t be any other line. What in our submissions we would say is, that has been fleshed out in terms of contractor provisions in this case. There is clear authority to say that provisions that are a prohibition on the use of contract or indirect labour certainly fall on the impermissible side of 170LI, but then there are other provisions that while they may place a restriction on the use of contract labour they could be characterised as either not being a prohibition or not falling foul of 170LI, otherwise, because what they are doing is protecting the job security of employees under the agreement.

PN26

Sir, you would be familiar with the Full Bench authority on this matter, starting with Schefenacker, also I suppose to an extent, the Air Express case I believe, and also the Exel case which you were involved in. The authority from that, we would say, is that the job for the Commission is to characterise the provision. Decide what the character of the provision is, certainly if it is of the nature that it amounts to a prohibition on the use of contract labour and it falls foul of the section.

PN27

If what in fact it is doing is merely protecting the job security of employees under the agreement then there is no reason why that should not fall within the employment relationship. Sir, I take you to the decision of the majority in Exel, at paragraph 16, and I do outline some other parts of that decision. This is at page 8 of my submissions. At paragraph 16, among other things, the majority of the Full Bench there says:

PN28

In our view agreed measures to protect the wages, conditions and employment of employees by attempting to assure parity of wages and conditions for the employees of contractors pertain to the relationship between employers and employees in a direct way.

PN29

Sir, what we would say is that what this clause is doing by its terms is in fact protecting the job security of the employees under the agreement, by its own terms. It provides that:

PN30

This provision is intended so that the parties agree not to undermine the integrity of workplace safety and the employment conditions under the agreement by the use of contract labour.

PN31

It can be seen by the first paragraph which outlines the intent of the clause that what the parties are intending to do is protect the work conditions of employees under the agreement. The substantive condition is in the second part of the provision and we say that clearly creates a benchmark for the terms and conditions of contract employees, of a contract between CCA and a contract labour supplier, and importantly, the obligations are not on any third party in the provision, the obligations are on the company itself, so in that respect it would not fall foul of any principle that said - - -

PN32

THE DEPUTY PRESIDENT: The obligations on Coca Cola Amatil are with whoever Coca Cola Amatil are contracting with isn’t it?

PN33

MR NICHOLAS: It is on Coca Cola Amatil, that is right, sir. The obligation is on them.

PN34

THE DEPUTY PRESIDENT: With respect to the terms in which it is contracting with another body.

PN35

MR NICHOLAS: That is right, and it has certain obligations with respect to the terms of that.

PN36

THE DEPUTY PRESIDENT: What if that labour hirer or other contractor already has a certified agreement Mr Nicholas? How does that sit with section 170NC?

PN37

MR NICHOLAS: I suppose there may be some inconsistency between the agreements. I will just refer - - -

PN38

THE DEPUTY PRESIDENT: Wouldn’t that be action with the intent to coerce another person to agree or not agree to making, varying or terminating an agreement? As I understand it that is an offence against the Act.

PN39

MR NICHOLAS: I suppose that would depend on what action the company took with respect – and I might say, sir, there is no evidence that there is any other certified agreement in operation.

PN40

THE DEPUTY PRESIDENT: No, I’m asking the question. What if that were a circumstance that arose? Coca Cola Amatil are either presumably breaching the agreement or breaching the Act, one of the two, or both.

PN41

MR NICHOLAS: I suppose that the question would be answered within the terms of 170NC, that - - -

PN42

THE DEPUTY PRESIDENT: If the circumstance arose I suppose.

PN43

MR NICHOLAS: If the circumstance arose, and whether whatever action Coca Cola Amatil took amounted to coercion. We would say what this clause is doing is not directed towards ensuring that Coca Cola Amatil take action that amounts to coercion.

PN44

THE DEPUTY PRESIDENT: If a contractor had a certified agreement that did not confirm with what is going to be required under 3.6, presumably they just wouldn’t get the contract.

PN45

MR NICHOLAS: Presumably they wouldn’t sir. I suppose that would be up to the actions of Coca Cola Amatil’s management to ensure that that situation didn’t arise.

PN46

THE DEPUTY PRESIDENT: And presumably if the agreement were to be certified Coca Cola Amatil wouldn’t, by any of its actions in those sorts of regards, be in breach of the Trade Practices Act?

PN47

MR NICHOLAS: Sir, I do not have any submissions for you - - -

PN48

THE DEPUTY PRESIDENT: ..... not have applied, it may well.

PN49

MR NICHOLAS: - - - in relation to the Trade Practices Act. If that question requires further submission on it I would seek an adjournment.

PN50

THE DEPUTY PRESIDENT: No it doesn’t.

PN51

MR NICHOLAS: Sir, essentially the conditions that are placed on Coca Cola Amatil in the second paragraph of the provision don’t amount to a prohibition in our submission but really they are conditions directed to creating a baseline for the use of indirect employment.

PN52

That base-line is set to safeguard workplace safety and employment conditions of direct employees and it is set by reference to the particular matters in the agreement itself and the relevant award. In relation to those particular matters, they are matters within the agreement. Clause 3.7 of the agreement deals with standard business stream hours. Clauses 3.9 and 3.10 - - -

PN53

THE DEPUTY PRESIDENT: The use of the word Stream, what does that mean there? Does that simply mean the hours under the agreement within that scope of hours if you like? Is that what that means?

PN54

MR NICHOLAS: I haven’t come across it before, sir. That’s my understanding.

PN55

THE DEPUTY PRESIDENT: That’s what I took it to mean.

PN56

MR NICHOLAS: That’s my understanding. I couldn’t assist you any further on that. Maybe my friend can in some way if she has any other instructions. Sir, the other clauses, in terms of rates of pay, clause 3.2 and appendix 2 deal with rates of pay and 3.14 deals with occupational safety, health and the environment. I have jumped around a bit and I apologise for that. My understanding is that there is no other agreed matters between the parties in relation to the set of particular matters that should be safeguarded in any contract for the provision of contract labour.

PN57

THE DEPUTY PRESIDENT: Are there any environmental policy and procedures?

PN58

MR NICHOLAS: Sir, clause 3.14 of the agreement.

PN59

THE DEPUTY PRESIDENT: “..... and environment.” Yes, I missed that. That covers environment as well.

PN60

MR NICHOLAS: That’s right.

PN61

THE DEPUTY PRESIDENT: And with respect to the environmental issues it seems merely an aspirational or promotional type aspect doesn’t it? It’s not explicit obligations other than a commitment to understanding and minimising environmental impacts.

PN62

MR NICHOLAS: That’s right, sir.

PN63

THE DEPUTY PRESIDENT: That is really all there is, isn’t there?

PN64

MR NICHOLAS: Other than, I suppose, the safe working environment, and it depends on what kind of an understanding you have on the extent of the term Environment. But that is right, sir, it seems just to be an aspirational provision in relation to minimising adverse environmental impacts.

PN65

THE DEPUTY PRESIDENT: Each of those items in 1-5 are those items that are express in the agreement? There is not other policies or procedures or understandings that are not express in the agreement that is being referred to there?

PN66

MR NICHOLAS: Sir, I believe there may be. Clause 3.14 refers to the company’s occupational health and safety policy. It is not clear but I believe that the company does have such a policy that is separate to clause 3.14.

PN67

THE DEPUTY PRESIDENT: A contractor would be required to have a similar policy, is that the way it works?

PN68

MR NICHOLAS: Well, sir, what the - - -

PN69

MS HARTLEY: If I can assist on this point, your Honour. It doesn’t go any further than requiring a contractor to have provisions no less than those provided under the agreement, and it goes no further than the clauses set out in 3.14.

PN70

THE DEPUTY PRESIDENT: Yes, that’s what I was getting at. It is the express provision, it is not any subsidiary documentation or policies?

PN71

MS HARTLEY: No, it’s not anything further. As a matter of record there are separate contractor requirements between Coca Cola and all of its subcontractors to require them to meet at lease the minim standard of Coca Cola’s OH&S policies.

PN72

THE DEPUTY PRESIDENT: But they don’t form part of this agreement?

PN73

MS HARTLEY: No, it doesn’t form any part of this.

PN74

THE DEPUTY PRESIDENT: Yes. Thank you.

PN75

MR NICHOLAS: Sir, I suppose the other thing that is relevant to considering the context of this provision is that an identical provision is in application at present in the previous certified agreement and my understanding is that there is contract labour that is provided for under the terms of that previous agreement, so in that respect, and - - -

PN76

THE DEPUTY PRESIDENT: Mr Nicholas, as you well know, the previous agreement was certified prior to Electrolux and prior to the very Full Bench decisions that you are referring to.

PN77

MR NICHOLAS: Sir, I suppose that is not - - -

PN78

THE DEPUTY PRESIDENT: And, I think, after Unilever.

PN79

MR NICHOLAS: My submission is not that because there was a previous certification that there should be a certification in this case. What the submission goes to is the context of the operation of the agreement, and what our submission is, is that given the operation of this agreement in its own terms has allowed Coca Cola Amatil to have indirect labour supplied by a contract labour supplier, that ..... correct to characterise this provision as one that prohibits such an arrangement, in that respect it couldn’t be said to fall foul of a characterisation that does it in that way. That says that what is really happening here is a prohibition on the use of contract labour. I understand - - -

PN80

THE DEPUTY PRESIDENT: It is not an express prohibition. Isn’t there potential to, or does it not in fact extend to forbidding entering into contracts?

PN81

MR NICHOLAS: No sir. Our submission is certainly that it doesn’t extend to forbidding entering into such contracts. Our submission is that there are conditions placed upon the entering into such contracts that go to protecting the job security of employees under the agreement and are therefore a matter pertaining to the employment relationship.

PN82

They don’t go so far as to prohibit the use of indirect labour and there clearly is a distinction in the authorities we would say, between a clause that goes to prohibiting the use of contract labour which we would say is in the nature of, if you like, a blanket ban, on the use of such labour compared with a provision that provides for conditions to be placed on the use of such labour.

PN83

Sir, the submission in relation to the previous agreement and the circumstances surrounding the operation of that is just on that point, that the operation of this provision clearly shows that it is not operating as a prohibition or a blanket ban on the use of contract labour. In fact it is providing for it and setting a base line of minimum standards when such ..... is ever used.

PN84

THE DEPUTY PRESIDENT: But if any of the requirements of the clause are not met then isn’t Coca Cola Amatil forbidden from entering into a contract because of the non-meeting of those requirements?

PN85

MR NICHOLAS: I suppose by its operation that could be the effect of the clause in a certain circumstance but, sir, our submission is that that is not the same as saying this clause operates to forbid the use of contract labour. What it is doing is providing, clearly providing a base line for the use of that labour, and clearly, in its operation that is how it has been used.

PN86

THE DEPUTY PRESIDENT: Item 6 in the clause “Any matters agreed”. Am I to take it that means any matters that currently have been agreed, which you say there are none, or any matters that may be agreed?

PN87

MR NICHOLAS: They may be agreed sir, but by the words of the clause those matters must be contained within the agreement or the award. What the agreement does is read in the terms of the award to the extent that they are not inconsistent with the agreement. If that paragraph 6, within clause 3.6, if that came into operation, if there was some agreement that another matter was a particular matter, then our submission would be that it would have to be a matter that is either within the agreement or within the award.

PN88

THE DEPUTY PRESIDENT: But I don’t know what that matter is, or may be.

PN89

MR NICHOLAS: Well, they come from a very definite class of matters which are only those matters that are within the agreement or within the award.

PN90

THE DEPUTY PRESIDENT: Sorry, I don’t understand. So six is not open ended.

PN91

MR NICHOLAS: That’s right, sir, it’s not open ended.

PN92

THE DEPUTY PRESIDENT: It reads as thought it is.

PN93

MR NICHOLAS: Sir, the paragraph reads:

PN94

CCA will not enter into any contract with a contract labour supplier or contractor unless the terms and conditions of any labour supplied there under are no less than those provided under this agreement and the relevant award, including -

PN95

And then it lists a number of matters that are provided within the agreement or award.

PN96

THE DEPUTY PRESIDENT: Yes, I see. In the paragraph proper, six is conditional on items in the agreement and the award.

PN97

MR NICHOLAS: That’s right, sir.

PN98

THE DEPUTY PRESIDENT: I see, yes. Is there anything further Mr Nicholas?

PN99

MR NICHOLAS: No sir, they are all the submission I have.

PN100

THE DEPUTY PRESIDENT: Ms Hartley.

PN101

MS HARTLEY: Thank you, your Honour. I have also got written submissions to give to the parties. The question is really, as your Honour put it, where is the line?

PN102

THE DEPUTY PRESIDENT: That is a matter of judgement isn’t it?

PN103

MS HARTLEY: Well, it is a matter of judgement, but I think the one thing that is clear at the moment is that the line is somewhere between the clauses that have been approved in Schefenacker and the rest of the decisions which I have been referring to as the NUW case, but it is getting referred to separately as Exel.

PN104

That the line is between the clauses in those decisions and between the clauses that have been rejected by the Full Bench and by the Federal Court in the Wesfarmers case, where there is a prohibition or a qualification on the use of contractors. On one side you have got the clauses that have been approved by the Full Benches which have held that providing that the clause is directed to maintaining the integrity and parity of terms and conditions of employment then a clause which requires an employer to provide those, or to have a contract clause for labour hire agreements that require that at least those terms be provided, then that is a clause that is a matter pertaining.

PN105

It is a question of degree in the context and our submission is that the context and drafting of this clause make it clear that it is capable of certification. The background to the context of this is that it is a minimum, it is not an absolute, and that is that it requires that CCA not enter into any contract unless the terms and conditions are not less than those provided under this agreement. It does not require them to be exactly the same, it requires it that they not be less than. It is about not undercutting the rates of the Coca Cola employees so that they do not lose their jobs. It is that simple.

PN106

If the labour hire people want to pay different terms and conditions that is a matter for them subject to the contractual arrangements between Coke – the context of this is that the vast majority of the labour hire that is used is for seasonal work. It is for short periods. As your Honour may be aware Coke is a seasonal business to a degree. It has its busy periods over summer and that is when it needs more employees, and it has over a large number of years, topped up its workforce with labour hire employees during that seasonal period.

PN107

This is a clause that is expressly directed to ensure that the permanent employees of Coke, and Coke has, it’s not a large workforce but it is a long serving workforce. They have employees there who have served in excess of 40 years. Those employees like their jobs and they don’t want to be put on the footpath over this, because those seasonal workers who are there for three to four months of the year to provide the top-up have undercut their rates and on a commercial basis Coke has then decided to use them on a permanent basis. In essence, that is what it is.

PN108

It is a question of degree, but the drafting of clause 3.6 we would respectfully submit is substantially the same as the clauses in Schefenacker and in Exel because it does not place any type of limitation or qualification in terms who Coca Cola contracts with. It does not set out any type of a process in terms of who they have to talk to. There is no requirement on them to talk to the union. There are no limitations on the tender process, and we can provide evidence today. I have got the HR manager from Coca Cola here to say that they, and they alone, make all of the decisions about when and how contractors are used. The only qualification is that they have to ensure that those contractors are paid at least as much as the Coca Cola permanent workforce.

PN109

Coca Cola’s position is ultimately that this is a question for the Commission, however, our position is that Coca Cola went into negotiations with the unions earlier this year, after Electrolux had been handed down. They went in and they went through the agreement with, I won’t say a fine tooth comb, but with a very conscious decision to make sure that the agreement did comply with Electrolux. There were some substantive changes made to some of the clauses to ensure that there was compliance and that everything that was contained in the agreement was a matter pertaining.

PN110

On the basis of the Full Bench decision in Schefenacker, the parties reached a view that this was the type of clause that would be able to be retained and Coca Cola’s respectful submission is that employers and unions should be able to have the certainty of relying on those Full Bench decisions when they are drafting their agreements. In relation to Electrolux, whilst Electrolux is very clearly relevant in terms of setting out matters pertaining, it does not actually deal with the contractor provision. There has only been one judicial interpretation of a contractor provision post-Electrolux, which is French Js decision.

PN111

We would submit that the contractor clause in that was vastly different. It was a very long and complicated contractor clause that was considered. At the end the honourable Justice made his decision on one sub-part of the contractor clause which contained a prohibition on how contractors were used. We would submit that what is relevant in that is that there were actually other parts of that contractor clause relating to ensuring that minimum rates and matching rates were used, but it was that one clause which set out the process in terms of how contractors were used which is what he formed his decision on in finding that it restricted the employer’s right to use contractors.

PN112

We would submit that on the basis of the fact that he doesn’t refer to the other clauses as being offending, and also by reference to his acceptance that there was a distinction between provisions regulating or prohibiting the use of contractors and provisions which merely prescribed minimum terms and conditions for employees of independent contractors, that that decision is actually on our side in terms of saying that this is a clause which is capable of certification.

PN113

In relation to the Full Bench cases, as we have said, on the right side of the line are clauses that are there to protect wages and conditions of employees by attempting to ensure parity, and that that is a matter pertaining. As he said, it is a question of degree. There is one thing that I will respond to in the questioning that you had of my learned colleague, and that is that there is any type of inappropriate behaviour by Coca Cola in this process in terms of coercion and so forth. It simply does not work like that, nor has it ever worked like that.

PN114

Coke would at all times comply with the requirements of the Act and there is no possibility of that because it is not what the clause says. The clause talks about minimums, in terms of minimums, and it is no different in terms of the issues of the hours and the shift arrangements in the tender process for Coke to say we need contractors that can provide employees that can work these hours because these are the hours that we operate.

PN115

THE DEPUTY PRESIDENT: So you are saying it would be different if it was a provision that said they shall be exactly the same?

PN116

MS HARTLEY: In one respect in would be different as it relates to whether it is a matter pertaining because that affects the question as to whether or not it is about ensuring parity of employment, not in relation to the issue of coercion because it is simply a fact that any employer can make a requirement for a potential contractor that they have to be able to meet certain requirements.

PN117

If they have got a certified agreement that doesn’t allow for that then they don’t tender. There is no coercion and the Full Federal Court has held that to put a requirement in a tender that is not able to be met is not coercion and I can provide authority, I don’t have that reference here. It would be different if this was a new clause that was being ..... in and there was an existing contractor in place that was not able to meet it, but that is not the case and decisions have to be taken on the basis of the evidence, and we can present evidence - - -

PN118

THE DEPUTY PRESIDENT: So you are saying there is a history of particular contractors being used that are engaged under the terms of a clause of this nature?

PN119

MS HARTLEY: It is still clause 3.6 in the existing agreement, your Honour. That is exactly what I am saying. It is because of the nature of the business, the seasonal nature of the business and the need for top-ups that rather than Coke engaging the casuals directly that they are recruited and used through a particular labour hire firm.

PN120

THE DEPUTY PRESIDENT: So there is one labour hire firm usually being used?

PN121

MS HARTLEY: There is one labour hire firm that is usually on foot.

PN122

THE DEPUTY PRESIDENT: I see.

PN123

MS HARTLEY: And so the whole nature of the clause - - -

PN124

THE DEPUTY PRESIDENT: And the relationship between Coca Cola and that labour hire firm, that results in the use of that labour hire firm specifically?

PN125

MS HARTLEY: I have no instructions as to what arrangements they have in place, whether they have agreements or not. But there is a long history there.

PN126

THE DEPUTY PRESIDENT: What I was getting at was not what the arrangements are or whatever, but there is a history of a particular labour hire firm being used, and regularly being used.

PN127

MS HARTLEY: Yes there is, and the history of it is that, and this is going back some ways, but Coca Cola used to do everything. It used to employ all its own truck drivers, it used to employ absolutely everybody. Through agreements with the union there was contracting out but as a result of being allowed to do that contracting out, and there were provisions in the old certified agreements, and I am going back a decade now, your Honour, but the history is important in terms of understanding what the clause is aimed at.

PN128

But part of that history was that in return for those onerous provisions that stopped any contracting being removed there would be a clause inserted which would protect the job security of those employees who were left.

PN129

THE DEPUTY PRESIDENT: So that context has, because of the relationship with a particular labour hire firm there has been - what you are asserting is I take it that there has been no refusal to engage any other labour hire firm for whatever reason because of the relationship with this particular labour hire firm. Is that correct? Is that the circumstance?

PN130

MS HARTLEY: Yes, your Honour.

PN131

THE DEPUTY PRESIDENT: So the context of this clause cannot be one of prohibiting or extending to forbidding because of the nature of what the factual circumstances are?

PN132

MS HARTLEY: Yes, your Honour, and as I said, I have got the HR manager here who is willing to give the evidence that she has never had any restriction or limitation using contractors because that is not how the clause is operated. It is not what it is about.

PN133

THE DEPUTY PRESIDENT: Well, evidence isn’t necessary.

PN134

MS HARTLEY: Thank you, your Honour. I thought I had better be prepared, just in case. In relation to the agreement, Coca Cola’s position is that the agreement has been voted up by the majority of the employees. It does not operate to limit or prohibit the use of contractors and because of the particular context as to how the clause came into operation, that is, it was put in as part of the negotiations originally to remove limitations on the use of contractors which were in old agreements way before Electrolux, but that that shows that it is a clause directed at protecting the wages and conditions and job security of the remaining Coca Cola permanent workforce in light of both outsourcing of jobs that Coca Cola no longer do, but more importantly the seasonal workforce, and the top-up workforce.

PN135

Coca Cola would respectfully submit that on the basis of the Full Bench decisions both in Schefenacker and subsequently that they are, or should be entitled to the certainty of relying on those decisions in the circumstances where they have stripped their agreement out of everything else that was offending to Electrolux, and that the agreement should be certified. If the Commission pleases.

PN136

THE DEPUTY PRESIDENT: Thank you. Mr McLane.

PN137

MR MCLANE: Just very briefly, sir. I will just say that the clause is facilitative, it is not restrictive in any way and I just rely on the submissions of both my learned friends in relation to that. The other thing that I will say sir, it is clearly the understanding of the AMWU in relation to point six, that is, other matters as agreed, in the present context, not in some future context, sir, and I think that was adequately explained.

PN138

THE DEPUTY PRESIDENT: I think Mr Nicholas said, because it is the context of what is in the agreement or in the award, not - - -

PN139

MR MCLANE: That is all I wanted to say, sir. If the Commission pleases.

PN140

THE DEPUTY PRESIDENT: Is there anything arising out of anything that anyone else has said Mr Nicholas?

PN141

MR NICHOLAS: No sir.

PN142

THE DEPUTY PRESIDENT: I will reserve my decision and let the parties know in due course. If I form a view that there is a difficulty in certifying the agreement I will notify the parties and advise them accordingly and provide them with further opportunity if I have a doubt in that regard or form a view that there is a difficulty in that regard, before I formalise any decision.

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