AG2005/7386, Transcript of Proceedings [2005] AIRCTrans 2574 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13802-1

COMMISSIONER DANGERFIELD

AG2005/7386

APPLICATION BY ORIGIN ENERGY LIMITED & TRANSPORT WORKERS’ UNION OF AUSTRALIA-SOUTH AUSTRALIAN/NORTHERN TERRITORY BRANCH AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7386)

ADELAIDE

10.34AM, FRIDAY, 16 DECEMBER 2005

PN1

MR P TAYLOR: I appear on behalf of Origin Energy Limited.

PN2

MR S DONNELLY: I appear on behalf of the Gas Industry Submission Branch of the Transport Workers Union, South Australia and Northern Territory Branch.

PN3

THE COMMISSIONER: Thank you. Mr Taylor, do you want to speak to this?

PN4

MR TAYLOR: Yes, I'll just start, Commissioner. Yes, the company has applied to have this agreement certified, which is the Origin Energy (Adelaide) Sales and Marketing and Customer Transaction Services Agreement 2005, application made under section 170LJ of the Act. The original filed copies of agreement plus stat decs, Commissioner, from the company and the TWU have been forwarded to you, and I understand that Colin Heath from Australia Workers Union TAPS has forwarded a stat dec in as well.

PN5

I have realised though that on the stat decs for the TWU and the company we forgot to put the ACN number on there.

PN6

THE COMMISSIONER: I think Mr Heath has got it on his. All I really need to get you to confirm Mr Taylor is that it is the same as what Mr Heath has got in his. Is it 000051696?

PN7

MR TAYLOR: That's correct.

PN8

THE COMMISSIONER: Well, you can probably just write that in I think. It's just an omission. Yes, I'm happy. I just needed to confirm that we are talking about the same corporate entity.

PN9

MR TAYLOR: Yes, we are.

PN10

THE COMMISSIONER: So that's the ACN number, 000051696, and if in fact that is the case then that's fine.

PN11

MR TAYLOR: Correct. Thank you, Commissioner. With the agreement, just very briefly. It covers a total of 270 employees and they work in our call centre, credit, national receipting, billing, et cetera functions, and they're based at our main Adelaide office at 1 King William Street. They took a vote on 24 November 2005 and it's approved. The company, Commissioner, is of the opinion that the requirements of section 170LT of the Act for certification of agreement be met. And unless the Commission has any questions relating to the application the company requests that the Commission certifies the agreement.

PN12

THE COMMISSIONER: I have a question in a moment but I'll hear from Mr Donnelly first. Thanks, Mr Taylor. Mr Donnelly, anything you wish to add?

PN13

MR DONNELLY: No. The union has nothing further to add to what Mr Taylor said.

PN14

THE COMMISSIONER: Gentlemen, I have no problem with the statutory declarations or the process or whatever. I just refer your attention to clauses 28 and 29 of the agreement if you've got it there. You've both got the agreement there?

PN15

MR DONNELLY: As you're aware one of the things the Commission has to do with these is to ensure that the agreement complies with section 170LI of the Act which essentially is what's become known as the Electrolux issue, which is we must make sure that the agreement in every respect pertains only to the relations of the employer and the relevant employees in their respective capacities as such. In regard to clause 28 it sort of talks about, and I quote:

PN16

Origin Energy shall provide and erect noticeboards on the premises so that they should be reasonably accessible to all employees working under this agreement. Accredited union representatives including work site representatives shall be permitted to put on the noticeboard or noticeboards union notices signed or countersigned by the representative hosting them.

PN17

Et cetera. Now, normally in agreements of this nature the term union notice is usually, and it's certainly always advisedly, qualified in some way by saying union notices relating to the employment or relating to wages and conditions of the employees, or union notices relating to matters pertaining to this agreement, some qualification. But here of course it just simply says union notices. And I'll get you to address this in a moment and see what you say because I've got a view on it as well. But it could be argued I suppose that that expression union notices signed our countersigned by the representative posting them is not a matter that strictly pertains to the relation of the employer and the employees but it pertains to the relation of the employer and the union. It could be. I just want to get your view on that.

PN18

The other one is in regard to clause 29 where, in the second paragraph, this is dealing with work site representatives, the second paragraph says:

PN19

An employee appointed as a work site representative shall upon notification by the union to Origin Energy be recognised as the accredited representative of the union and shall be allowed reasonable time during working hours, taking into account business needs, to present Origin Energy matters affecting the employees so represented, and further, shall be allowed by agreement reasonable time during working hours to attend to job matters pertaining to the union.

PN20

It's very unusual wording, but job matters pertaining to the union. Now, again I've got some views as to how that would be interpreted, but again when it talks about pertaining to the union here it raises the question, you see, I read the agreement through, it raises a question, does this pertain to the relations of the employer and the employees in their respective capacities as such. I mean, if you were doing it again I would suggest a small attention to a little bit of technical drafting and polishing this up could really have overcome the problem, but I'd just like any views from either of you on those clauses as to why you say they do pertain only to the relations of the employer and the employees. Mr Donnelly?

PN21

MR DONNELLY: Well, Commissioner, I wording I guess on clause 29 where you've made reference to job matters pertaining to the union, I guess it probably is a bit sloppy and could - the intention is that it's pertaining to the union as a representative of employees working at Origin Energy. That is the job matters. It's not as if they're employed by the union to perform a role on behalf of the union. Simply there is representatives of employees working at Origin Energy. And I guess it's the notion or the spirit of that clause, and the same for the union notices.

PN22

I certainly don't think the union would have a problem if we were to amend the union notices relating to matters pertaining to the agreement because, I mean, in reality the noticeboards that we do have littered throughout the workplace, the notices that are going up there are usually pertaining, you know, the agreement and matters in the agreement.

PN23

THE COMMISSIONER: Yes. Look, I'm aware of the practical reality of it. Can I just go to clause 29 and just say the way in which I think that would be interpreted if it were before a court - well, first of all Mr Taylor, do you want to add anything to what Mr Donnelly said?

PN24

MR TAYLOR: No, nothing to add.

PN25

THE COMMISSIONER: I think in regard to clause 29 and that phrase job matters pertaining to the union, I think a court would look at that and would say look, it is about - I mean, the phrase pertaining to the union is actually very unfortunate. However it is also about job matters. It gives me some comfort that it's referring clearly to work matters, matters in the workplace and not matters extraneous to the work situation like, I don't know, union elections or something or other, you know, whatever.

PN26

And I take the phrase pertaining to the union in that paragraph to in effect balance the reference two lines earlier where it talks about Origin Energy matters, which again is an unusual expression, but that's obviously - when it says there in the third line of that second paragraph "To present Origin Energy matters affecting the employees so represented," that's obviously referring to matters pertaining to the employer and the employees, Origin Energy matters. And I think the phrase pertaining to the union in the last line there in effect sort of balances out that earlier comment.

PN27

So I have less problem with clause 29 because I think the saving grace of that second paragraph is that it actually refers in that last line to job matters pertaining to the union. So the union's interest here is only in relation to job matters, which mean matters affecting the jobs of employees on site. So it's a bit of a roundabout sort of a way but that's the way I'm rationalising it in my mind. And I think if it went to a court that's probably the way the court would interpret this because a court must have regard to these documents looking at the overall intention and so on, it's not the strict words.

PN28

But all I'm saying is, next time, even under the new work choices legislation or whatever you're still going to have to have an agreement that pertains to the relations of employer and employees, and just be careful of the terminology there. In regard to clause 28, as I say, that could easily have been fixed by a little bit of qualification there. However what I'm going to say is this. I think that clause 28 follows on immediately from clause 27 of course, the right of entry clause, and the right of entry clause makes it perfectly clear you see, the right of entry clause is well drafted because it talks about, in the second line, having the right to enter any place or premises where employees are employed at the time during normal working hours when overtime is being worked. And here are the magic words:

PN29

For the purpose of interviewing employees on matters relating to their award/agreement, issues or safety conditions or regulations.

PN30

Clearly, you see, that's been qualified, the right of entry has been qualified to say it's clearly a right of entry for the purpose of the relations of the employer and the employees, do you see what I mean? So the right of entry clause clearly pertains to the relevant relationship, and then immediately following that right of entry of the union clause in clause 27, you've got clause 28 dealing with union notices. So I think clause 28 has got to be read in that same context as clause 27. And when you talk about the union notices in the second line of the second paragraph to clause 28 I think that's got to be read in the context of the previous clause 27, and it clearly pertains to the relationship and so on.

PN31

Look, it's a complex issue and I hope you get what I'm talking about here. But you do understand the reality of this, that if even in - the reality of the Electrolux decision is this. That even if in one word or one line of your agreement a court, be it a Federal Court or the State Industrial Court or whatever down the track, some court somewhere that has this agreement before it, if in one line or one word the court is of the view that that does not pertain to the relations of the employer and the employee the whole agreement is invalid. That's the effect of the High Court's Electrolux decision, and that's why we pay absolute scrupulous attention to every line in these agreements. Because it would be a terrible thing to have an agreement that runs into some, you know, 30-odd clauses and all these pages and all the work that's been put into it, only to find that a court said it's irrelevant, doesn't have any legal effect because in one line you've mucked it up, you know what I mean?

PN32

But look, I think I can rationalise it in my own mind. If you were doing it again I would certainly be advising you just to be careful with the wording. I know the unions are generally, Mr Donnelly, they're generally right on top of this issue now in regard to agreements. But this is just one that I think could have been done a bit better, but I'm satisfied with it, and I just wanted to point that out, all right? Nothing further?

PN33

MR TAYLOR: Nothing further to that, Commissioner, no.

PN34

MR DONNELLY: Nothing further, Commissioner.

PN35

THE COMMISSIONER: Given that then I indicate that this is an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ. As I've indicated, I have considered the application and also the terms of the agreement, the subject of the application. I have come to the conclusion, albeit not without some careful thought and analysis, as I've explained, particularly in respect of clauses 28 and 29, that the agreement in every respect does pertain to the relations of the employer and the relevant employees in their respective capacities as such, and hence I've reached the conclusion that it can be said that the agreement complies with section 170LI of the Act.

PN36

The application itself is supported by statutory declarations from Phil Taylor, Senior Business Advisor, HR, Origin Energy Limited, the employer in this matter, and Colin Heath, Branch Secretary, Australian Workers Union TAPS branch, and also from Russell Wortley, Sub Branch Secretary, Transport Workers Union. I'll stop there to say I'm just checking to see that I've got Mr Wortley's statutory declaration. Yes, I do. Yes, I have Mr Wortley's statutory declaration as well. And I just note Mr Donnelly that Mr Wortley's statutory declaration doesn't mention the ACN number. That's probably what Mr Taylor was talking about earlier. His does not mention the ACN number, but the saving grace is that Mr Heath's does, and we'll just note there for the record, as I indicated earlier, that the correct ACN number that should be in Mr Taylor's and Mr Wortley's declaration but is not there. The correct ACN number is ACN 000051696, so I confirm that that is the case, that has been confirmed by the company. Apart from that the declarations are in every other respect in order.

PN37

Having heard from the parties today I note first of all that the Origin Energy Salaried Staff (South Australia) Award 2000 is the relevant award for the purposes of the no disadvantage test, and I'm satisfied that that test has been passed. The agreement at clause 25.2 includes procedures for preventing and settling disputes between the parties. It's clear on the material before me that a valid majority of persons employed at the time genuinely approved the agreement, and that the explanation of the terms of the agreement took place in ways that were appropriate having regard to their circumstances and needs.

PN38

Accordingly the Commission certifies the Origin Energy (Adelaide) Sales and Marketing and Customer Transaction Services Agreement 2005. It will be operative from today's date, 16 December 2005, and in accordance with clause 4 of the agreement it will remain in force until 30 June 2007. If there's nothing further from the parties for the record that then concludes the hearing of the matter.

PN39

MR DONNELLY: Thank you, very much.

PN40

MR TAYLOR: Thank you.

<ADJOURNED INDEFINITELY [10.52AM]