AG2005/2673, Transcript of Proceedings [2005] AIRCTrans 245 (3 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10160

DEPUTY PRESIDENT HAMPTON*

AG2005/2673

s.170MD(6) - variation of certified agreement to remove ambiguity

Woolworths (SA) Pty Ltd
and
Shop, Distributive and Allied Employees Association-South Australian Branch
(AG2005/2673)
Woolworths Gepps Cross Distribution Centres Certified Agreement

ADELAIDE

11.02AM, FRIDAY, 21 JANUARY 2005

PN1

MR A SMITH: I appear as an agent on behalf of Woolworths Limited with
MR H VENNER, HR Manager.

PN2

MR D BLAIRS: I appear on behalf of the SDA and with me is MR S BAKER

PN3

THE DEPUTY PRESIDENT: Gentlemen, this matter has been called on for mention only. Perhaps in that context, Mr Smith, you might outline some of the background to the application, how you might see it being advanced including the nature of the case you intend to present.

PN4

MR SMITH: Deputy, President, this arose as the public holidays clause of the Woolworths Distribution Centre Certified Agreement. Woolworths wish to require employees to work on public holidays and the SDA believe that their current clause in the agreement does not allow Woolworths to require employees to work. We have had a dispute hearing before Senior Deputy President O'Callaghan and we are unable to resolve the issue and that is why we are here today and seek to have the proposed - or what is the uncertainty in the current clause, the alleged uncertainty removed and a clarity provided for the parties to go further. That is how we are here today.

PN5

THE DEPUTY PRESIDENT: And I presume the application is opposed Mr Blairs?

PN6

MR BLAIRS: Your Honour, the application is opposed by the SDA. I apologise that we have not put a formal submission forward on that response.

PN7

THE DEPUTY PRESIDENT: No apology necessary, that's the purpose of these proceedings.

PN8

MR BLAIRS: I suppose it is an appropriate time for me to perhaps outline potentially the SDA's position.

PN9

THE DEPUTY PRESIDENT: That might be useful, and then I will hear from
Mr Smith about the nature of the case that he is proposing to lead.

PN10

MR BLAIRS: I suppose that it is an undisputed fact that this matter arose I think around last Easter as to the interpretation of clause 40, specifically 40.1, and how that might interact with clause 40.9. In the SDA's submission there is a clear way that you can read Clause 40.1 and there are perhaps two ways you can read Clause 40.9, one of which would make manufacture an inconsistency and the other of which would be entirely consistent and it has been our position right along that the clear objective of the two clauses was to work in conjunction with each other and to not be inconsistent. And for that reason the SDA has maintained since the matter was first arisen that there is no inconsistency, that the inconsistency has been manufactured and that is - the reason for
the manufacturing is because the manufactured inconsistency would allow Woolworths to perhaps reopen the case or try to get a determination that would be in its favour, opposite to what we believe would be both the correct interpretation, the interpretation that would lead to the two clauses being consistent with each other and also the interpretation that is being adopted over a number of years.

PN11

And on this short notice I will not need to track back as far as 1999, but my understanding is that these two clauses have operated since at least that date and they have been operating in a way that is completely consistent and with no ambiguity since that date. It is only in recent times that the ambiguity has arisen. In that context we would assert that the proper approach by the Commission would be a two step approach under Section 170MD(6).

PN12

There are, I suppose, two components to that particular clause that the Commission may on application of a person bound by a certified agreement for the purpose of removing an ambiguity or uncertainty. Now, I think the two parts come in, but first the Commission would have to find that there is an ambiguity or uncertainty in that clause and the SDA would assert that that would be the appropriate first step to take and that if the Commission then did find that there was some ambiguity or uncertainty, then the next step would be to decide how that uncertainty or ambiguity should be resolved.

PN13

Now, there is some case law that supports that proposition and I would refer to a case heard by Commissioner Fisher in February 2002 which was actually run in a State Commission but was actually discussed and referred to Section 170MD. The case is Bacon Factory Union of Employees (QLD) AND Hans Continental Smallgoods Pty Ltd, B2155 of 2001. In that case the proposition was put forward that under section 170MD there is or should be a two step approach and that the Commission should first hear submissions as to whether there is an ambiguity or if there is a clear way that the clause could be interpreted, and we would assert that that would be the appropriate first step in discussing this or in hearing this matter and that if the Commission then did find that there was some ambiguity or inconsistency between the two clauses which resulted in ambiguity, then the appropriate step would be to hear submissions from the parties as to how that ambiguity should be resolved.

PN14

I think the difficulty that potentially would arise there is Woolworths. I would assume, would like the ambiguity, if there is one found, resolved in their favour and the SDA would obviously like it to resolve in our favour. So I think that the important thing before we start saying, well, there is clearly an ambiguity and then arguing about who should be allowed to change or insert their clause, we should first look if there is a way that we can read this EBA that there is no ambiguity or no inconsistency because that would be the preferred option. That what was written down by the parties as far back, as I said, in 1999 and obviously affirmed in the 2002 EBA ,it should be left untouched, if there is way to leave it untouched, and that should be the primary objective of the Commission.

PN15

We would assert that the two stage approach as well would hopefully alleviate more drawn out or protracted proceedings, especially if it was found that there was no ambiguity, and the SDA would suggest that that would be the appropriate course of action. So that I suppose is the SDA's response to that. Now, where we go from here I suppose is a matter left to the Commission and perhaps further submissions from my friend.

PN16

THE DEPUTY PRESIDENT: Mr Blairs, look, it seems to me that one of the issues about splitting a case is the overall efficiency of doing that, in that I must say subject to what Mr. Smith indicates,, I think there are in fact two different considerations required by the Act. Firstly, jurisdictional consideration, that is, is there an ambiguity or uncertainty and then secondly, the exercise of discretion or not. In that context however, I do note that some of the authorities indicate that the sort of evidence that is necessary to make a finding about an ambiguity or uncertainty go directly to the exercise of discretion as well. So in that context there is a question about overall efficiency for both parties and the Commission, but I understand what you have put. Mr Smith?

PN17

MR SMITH: Deputy President, I certainly agree with Mr. Blairs that the jurisdictional issue needs to be dealt with firstly to see if there is an ambiguity and in determining that it may be that this matter is settled at that point, because if there is not an ambiguity it would follow that - - -

PN18

THE DEPUTY PRESIDENT: I don't have jurisdiction to anything.

PN19

MR SMITH: Or a meaning would be put to the clause if there was no ambiguity and that may settle the matter from there. But if it is determined that there is an ambiguity the matter needs to be determined due to the changes in the industry and the changes of work hours and the requirement to work on public holidays due to trading hours changes and the like. Maybe the road forward is an outline of submissions from the parties and a determination of jurisdiction from that point.

PN20

THE DEPUTY PRESIDENT: If we did go down that path then, what is the nature of evidence you would want to lead?

PN21

MR SMITH: We would have two witnesses for evidence, one being with regards to customer practice and the changes in the industry, secondly would be the negotiation of the current clause and how it has come about and the meaning that should be put through.

PN22

THE DEPUTY PRESIDENT: Mr Blairs, I appreciate this is relatively short notice but do you have a view about the nature or the extent of the case you present on the jurisdictional issue?

PN23

MR BLAIRS: At the preliminary stage I would assume we would have similar, I suppose, number of witnesses. I would assume the secretary of the union, Mr Don Farrell would be called. He was involved in the negotiation of the present agreement, the previous agreement and as I said, I am not sure exactly of the timing the clause was inserted but given he has been around the union for close on 20 years, I think he would have probably had a - I am sure he would have had a hand in that at some stage, so I think he would be an appropriate witness to call and also potentially a witness to discuss the current practices and how long they have been in operation as well. So I would suggest it would probably be two witnesses from the SDA as well.

PN24

THE DEPUTY PRESIDENT: Thank you. All right. Gentlemen, look, I think given the concern of the parties for this position I will accede to the suggestion that the jurisdictional issue should be determined first. In that context, I would propose to subsequently issue procedural directions the sense of which will be that each party will in turn file written outlines and witness statements and a date will be set for the hearing of the matter. Perhaps in that context it might be worthwhile if we briefly go off the record now to establish that date.

<OFF THE RECORD

PN25

THE DEPUTY PRESIDENT: I will issue detailed directions along the lines that we have spoken with the parties. I will not repeat the detail here rather than to indicate there is a program that will be established requiring the filing of outlines and witness statements by both parties and a potential response by the applicants and that we tentatively set aside the 16^th and 17 March to hear the matter, subject to confirmation of Mr Blairs availability as soon as possible. The matter will be adjourned to that date or another date as set by the Commission and formal written directions as already discussed will be issued as soon as possible.

<ADJOURNED ACCORDINGLY [11:22AM]