AG2005/2485, Transcript of Proceedings [2005] AIRCTrans 324 (10 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10259

COMMISSIONER SMITH

AG2005/2485

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY COMMANDER AUSTRALIA LIMITED AND ANOTHER
(AG2005/2485)

MELBOURNE

9.31AM, MONDAY, 31 JANUARY 2005

PN1

MR R MARASCO: I appear for the Australian Industry Group acting on behalf of our member company, Commander Australia Limited. With me is
MR D DWYER, the national human resources manager of the company.

PN2

MS A GOOLEY: I seek leave to appear on behalf of the CEPUI understand you have a letter from the national secretary of the CEPU advising that I am the only person authorised to appear on behalf of the CEPU in this matter.

PN3

THE COMMISSIONER: And if I deny you leave does it mean there's nobody here from the CEPU?

PN4

MS GOOLEY: I think that might be an issue, but I seek leave ..... as to why leave should be granted.

PN5

THE COMMISSIONER: Well, I haven't heard whether it's objected to yet. Mr Marasco?

PN6

MR MARASCO: We would object, Commissioner.

PN7

THE COMMISSIONER: Yes Ms Gooley.

PN8

MS GOOLEY: Thank you, your Honour. Your Honour, there are special circumstances in this matter as to why leave should be granted to counsel to appear on behalf of the CEPU. The issues go to the fundamental question of whether there is jurisdiction before this Commission to certify this agreement. That raises complex matters of law in relation to the CEPUs rules and also significant matters in relation to the operation of the Act in that prior to - you must be satisfied that prior to an agreement being certified there is an agreement between an employer and an organisation of employees that is capable of - that has a member and is capable of representing the industrial interests of the employees concerned.

PN9

The CEPU wishes to put material before you, Commissioner, as to why there is no agreement with an organisation of employees and that raises complex issues of interpretation of the rules of the organisation and we say it's appropriate in those circumstances for legal representation to be approved.

PN10

THE COMMISSIONER: Thank you. Mr Marasco?

PN11

MR MARASCO: I don't wish to make any further submissions, Commissioner.

PN12

THE COMMISSIONER: Very well. Ms Gooley I grant you leave.-

PN13

MR N BRETAG: Commissioner, I - - -

PN14

THE COMMISSIONER: Mr Bretag. Who do you seek to represent?

PN15

MR BRETAG: I represent the CEPU, Commissioner.

PN16

THE COMMISSIONER: This will be fun. Yes, Mr Bretag?

PN17

MR BRETAG: Commissioner, this is a certification hearing. It is not a complex legal matter. There is in my submission no right for legal representation in this matter. There are two parties and only two parties to this agreement, that is Commander Pty Ltd and the CEPU. I, as Divisional Assistant Secretary of the Communications Division of the CEPU, am authorised under a decision of the communications division executive under rule 26 of the communications division rules to appear and to do all things necessary to have this agreement certified.

PN18

I am aware of the letters referred to by Ms Gooley as sent to this Commission and Vice President Ross by Mr Peter Tighe purporting to act for the CEPU nationally and also purporting to authorise Ms Gooley to appear on behalf of the CEPU. Rule 6.21 of the national rules combined with rule 26 of the communications division rules authorises me to appear and act for the CEPU in this matter. Commissioner, I have copies of those rules for exhibits for this Commission.

EXHIBIT #B1 EXTRACT FROM THE NATIONAL RULES OF THE CEPU

PN19

The (c) under rule 6.2 Commissioner, autonomy of divisions, 6.2.1:

PN20

Each division shall have the autonomy to decide matters which do not directly affect the members of another division, such matters include but are not limited to -

PN21

I refer the Commissioner to 6.2.1.1:

PN22

The industrial interests of its members.

PN23

I say, Commissioner, that under that rule I appear for the CEPU in this matter and I represent the communications division and I represent the industrial interests of the communications division members. I take you to the next page, Commissioner, of that document which I have handed up, and I refer you to rule 7, national council, and particularly if I take you down to rule 7.1.2.4:

PN24

In a matter affecting more than one division authorise the national secretary or a divisional secretary to initiate proceedings or defend any proceedings in any court or tribunal when the matter affects more than one division.

PN25

Now, Commissioner, putting it simply, and I take you from there to, on the next page, 7.1.3, which is about three-quarters of the way down the page:

PN26

Where prompt action is required in respect of a matter pursuant to rule 7.1.2.3 -

PN27

The earlier rule referred to, and 7.1.2.4:

PN28

The national secretary in consultation with and with the agreement of the other national executive officers shall be empowered to take such action as is necessary in the circumstances provided that the national council subsequently endorses that action.

PN29

Now, Commissioner, no decision under national rule 7.1.3 has been taken to authorise the national secretary to send letters to this Commission or to Vice President Ross. No decision under that rule has been taken to authorise the retention of Ms Gooley in this matter and likewise no matter - sorry, no decision has been made to instruct Ms Gooley in these matters. I simply challenge Ms Gooley to provide evidence to this Commission of any decisions of the national council or national executive officers authorising the national secretary to write the letters to this Commission or Vice President Ross, or authorise the national secretary to retain and instruct Ms Gooley in this matter.

PN30

In the absence of any decisions of the national council or the national executive officers, she is not properly retained and cannot appear. The only person instructed in this matter by the union is me and therefore Ms Gooley has in my respectful submission no right to appear this matter and her submission seeking leave to appear should be rejected by this Commission. If the Commission pleases.

PN31

THE COMMISSIONER: Thank you. Ms Gooley?

PN32

MS GOOLEY: I apologise for not having a copy of the rules with me. I have a copy of the rules you, Commissioner, but if I refer you to rule 18 of the union rules, which I will read out and it's headed Notification of Industrial Disputes" and 18.1 is the processing of litigation on behalf of the union:

PN33

Applications, notifications, references, appeals or any other matter or proceeding related to litigation in the Australian Industrial Relations Commission, the Federal Court or any other tribunal or court appropriate in the circumstances may be lodged or any process may be initiated and advanced on behalf of the union by the national council, national secretary or a national executive officer after consultation with other national executive officers or any other person authorised by the national council to do so in accordance with the powers of the national council.

PN34

It then goes on to say at 18.2 the proceedings initiated by divisions:

PN35

A division may initiate proceedings in accordance with the rules of the division.

PN36

I say that 18.1 gives the national secretary the power to take any action in relation to these proceedings and that includes instructing representations. In relation to the claim by the communications division that it is authorised under the rules to appear in this matter, the communications division at rule 2 provides that:

PN37

The division shall consist of those persons eligible for membership of the union as defined in rule 2.5 to 2.2.1 inclusive of section A of the rules.

PN38

The fundamental submissions that we wish to make before you this morning, Commissioner are that the persons that my colleague purports to represent are not eligible for membership of the union as defined in rule 2.5 to 2.2.1 so therefore any arguments about the division's right to appear here fall in relation to that matter because - - -

PN39

THE COMMISSIONER: Not eligible to be members of the CEPU?

PN40

MS GOOLEY: Not eligible for membership of the union as defined in parts 2.5 to 2.2.1 which are the communications division sections.

PN41

THE COMMISSIONER: And you don't have a copy of the rules for me?

PN42

MS GOOLEY: I am sorry.

PN43

MR BRETAG: I do, Commissioner.

PN44

THE COMMISSIONER: Do you have a spare copy?

PN45

MR BRETAG: I can give you a copy of rule 2.5.2.

PN46

THE COMMISSIONER: Thank you.

PN47

MS GOOLEY: Might I say, Commissioner, that a similar matter is currently before Senior Deputy President Kaufman which is the application by Downer Connect for a certified agreement. That matter is before Senior Deputy President Kaufman at the moment,. It raises identical issues. The identical matters are in fact being considered in relation to another certification agreement. The CEPU has put in submissions in support of its opposition to the certification of that agreement. The communications division has put in submissions in opposition to that. We have to reply by the 11 February and the matter is set down for hearing on the 15 March.

PN48

I just thought I would inform you of that, Commissioner, so you're aware that identical matters are in fact being litigated in this Commission in relation to the very fundamental issues that are before you this morning and it might be appropriate, Commissioner, if this matter was referred to Senior Deputy President Kaufman so that all the matters could be determined efficiently in the one hearing. But now that you have a copy of the rules, in relation to my ability to appear before you we rely on rule 18.1 and say that in accordance with the correspondence forwarded to you by Mr Tighe, the national secretary of the union, there's no requirement there be a resolution of the national council and there's also no requirement that Mr Tighe consult with other national executive officers. He is authorised in his own right to conduct proceedings in this Commission on behalf of the union and that's what he is seeking to do.

PN49

THE COMMISSIONER: Do you want to get into this at all, Mr Marasco?

PN50

MR MARASCO: We certainly wish to have the agreement certified and would certainly support and adopt the submissions made by Mr Bretag in this matter. We note that this is a fifth agreement between Commander and the communications division of the CEPU, there has never been an issue like this raised before and the last agreement was made successfully with the communications division of the union. There were none of these issues involved. The company doesn't really want to become involved in an internal union dispute. It doesn't want to be disadvantaged though by having the certification of the agreement delayed and we would press for the certification of it in the terms sought. If the Commission pleases.

PN51

THE COMMISSIONER: Yes, I understand, thank you. Mr Bretag?

PN52

MR BRETAG: Commissioner, I just have a few more things to say.

PN53

THE COMMISSIONER: Yes.

PN54

MR BRETAG: In respect of where members reside in the CEPU, you need a little bit of history regarding Commander and perhaps a little bit of an understanding of our rules. Commander Pty Ltd conducts a business in locations throughout Australia installing and maintaining telecommunications key systems and commander systems. The work performed by Commander Pty Ltd was work that was for very many years undertaken by the Australian Telecommunications Commission and then following that the Australian Telecommunications Corporation and Telstra.

PN55

Commander Pty Ltd is a successor in respect of that work to both the Australian Telecommunications Corporation and Telstra Corporation Ltd. When Commander left Telstra, Telstra continued to hold shares in that company and recently those shares have been sold. Most if not all of the employees of Commander Pty Ltd were previously employed by the Australian Telecommunications Corporation or by Telstra. They were at the time of their admission to membership attached to the communications division or its predecessor of the organisation in accordance with rule 5.1.2. I have a copy of that rule, Commissioner. I don't think I have provided you with that up till now.

EXHIBIT #B2 EXTRACT FROM THE RULES - CLAUSE 2.5
EXHIBIT #B3 EXTRACT FROM THE RULES - RE MEMBERSHIP

PN56

THE COMMISSIONER: Thanks, Mr Bretag.

PN57

MR BRETAG: What I say, Commissioner, is that they were at the time of their admission to membership attached to the communications division in accordance with national rule 5.1.2:

PN58

A member shall be attached to the division of the union covering ministry or employment of that member.

PN59

None of those members have resigned from the division or were transferred to another division by reason of national rules 5.1.4 and 5.1.5. There was never any dispute about those persons being attached to the communications division. There was not the slightest suggestion that they should be attached to another division. It has been unnecessary at least up until this point in time to invoke the provisions of national rule 5.1.6. You will see that in front of you, Commissioner.

PN60

THE COMMISSIONER: Yes.

PN61

MR BRETAG:

PN62

Any dispute as to which division a person should belong to shall be determined by the national executive officers. Before any dispute is referred to the national executive officers, the divisions in dispute must try and resolve the matter between them.

PN63

THE COMMISSIONER: Now, has that occurred?

PN64

MR BRETAG: That has not occurred. As I say, it has been unnecessary up until this point in time to invoke the provisions of national rule 5.1.6 and how the national executives perform their functions under that role will determine the relevant dispute. In respect of all those members and any members who were not employed by the Australian Telecommunications Commission or Telstra now working for Commander Pty Ltd, they all made applications to be members of the organisation to branches of the communications division of the organisation.

PN65

Those applications were made in accordance with national rule 5.2 generally and they were admitted as members of the organisation on that basis and not on any other basis. In particular, they all had their applications dealt with in accordance with the rules of the communications division and not in accordance with the rules of any other division. At no time did they submit any application that was dealt with in accordance with the rules of any other division of the organisation and nor did they make application to any other division or branch of the organisation.

PN66

The agreement in question can only affect members of one division as there have only ever been members admitted or attached to membership of the organisation to one division of the organisation, that being the communications division. It cannot possibly be suggested that the agreement in question can directly affect the employment of members of more than one division. The consequence of this is that the communications division is able to execute the agreement in accordance with the relevant parts of its rules, and I refer to rule 26. I think I have I given you rule 26? I don't think I have.

PN67

THE COMMISSIONER: No.

PN68

MR BRETAG: Sorry. I am about to give you rule 26. This is rule 26 of the communications division rules.

PN69

THE COMMISSIONER: Thank you.

EXHIBIT #B4 RULE 26 OF THE COMMUNICATIONS DIVISION RULES

PN70

MR BRETAG: Commissioner, 26, industrial agreements, this is a rule of the communications division and quite clearly operates under, if you like, the national rules of 6.2, autonomy of divisions:

PN71

Subject to these rules divisional conference or when the conference is not sitting the divisional executives shall have power to enter into industrial ...(reads)... as prescribed by any Act any process or documents to be filed on behalf of the division.

PN72

I am such a person acting under that authority. That's all I wish to say, Commissioner, other than to say that the members concerned have been admitted to membership in accordance with the provisions of rule 5 and therefore have been attached to the communications division. There is no argument or reasoning behind the bold and wrong assertion that the communications division does not have eligibility to the extent that eligibility is at all relevant and that the electoral division in some way does. I don't believe I addressed rule 2.5.2 which is what I originally stood up to make a point on.

PN73

THE COMMISSIONER: Yes.

PN74

MR BRETAG: 2.5.2 is the part of the national rules which, if you like, sets out the coverage of the union. It also determines as to which division of the union members are allocated to in accordance with rule 5. You will see at 2.5.2:

PN75

Telecommunications as provided by 2.5.2.1 the Australian Telecommunications Corporation or any successor thereto.

PN76

And quite clearly what we say is that Commander is a successor thereto. Commissioner that's all I wish to say, unless you have any questions.

PN77

THE COMMISSIONER: No, thank you. Mr Bretag, what has been put by Ms Gooley is that I should consult with the President and the President should allocate this file to Senior Deputy President Kaufman. Do you have a view about that?

PN78

MR BRETAG: I do have a view about that, Commissioner.

PN79

THE COMMISSIONER: Yes.

PN80

MR BRETAG: I shall go to my other submissions. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union is an organisation registered under the Workplace Relations Act 1996 and is by reason of that registration a body corporate. There is no body corporate, corporation or legal entity known as the Communications Electrical and Plumbing Union Electrical Division, nor is there any body corporate known as the CEPU. The divisions and branches of the organisation have no corporate status, have no independent legal identity and do not and cannot operate independently as organisations registered under the Act or otherwise.

PN81

The rules of the organisation deals with the powers, rights and obligations of members of the organisation between one another. It is my respectful submission that there is no part of this Commissioner's role to direct performance of the rules of the organisation, nor is it any part of this Commission's function to invalidate any of the rules, I refer to section 163 of schedule 1(b) of the Act:

PN82

The performance and observance of the rules is a matter for the organisation and its various officers and perhaps ultimately the Federal Court of Australia.

PN83

Accordingly these submissions, do not seek to have the Commission direct the performance and observance of the rules of the organisation, nor do we seek to have the Commission require the organisation or the national office of the organisation, what they are required to do under national rule 5.1.6 of the rules. The organisation is - - -

PN84

THE COMMISSIONER: Perhaps - - -

PN85

MR BRETAG: We haven't got to that yet, The CEPU - - -

PN86

THE COMMISSIONER: It's tantalising.

PN87

MR BRETAG: The CEPU submits the Commission should as a matter of discretion retain from determining this issue.

PN88

THE COMMISSIONER: Yes.

PN89

MR BRETAG: Ultimately in our view the determination of the issue as to where members sit is resolved by an application of the organisation's rules.

PN90

THE COMMISSIONER: Yes.

PN91

MR BRETAG: What we say is that the Commission has a responsibility under section 170LT of the Act to certify the agreement and that if the Commission finds that section 170LT of the Act has been followed, the requirements of that part of the Act have been followed, then we say that the Commission has no discretion to involve itself in these matters and the agreement should be certified.

PN92

THE COMMISSIONER: I think that's right, but the problem I have got here is that I have got two people purporting to represent the same organisation and I am to decide who I hear about that question.

PN93

MR BRETAG: Well, Commissioner, I issued a challenge to Ms Gooley, and I note that she hasn't taken it up. What I say is, I wish to see under what decision of the national council or national executive officers of the union she purports to be instructed by.

PN94

THE COMMISSIONER: Yes, I follow. Well, Ms Gooley has put her submissions.

PN95

MS GOOLEY: If I might, in support of the submission that the matter be referred to the President to consider whether this matter should be referred to Senior Deputy President Polites

PN96

THE COMMISSIONER: Kaufman.

PN97

MS GOOLEY: Sorry, I apologise.

PN98

THE COMMISSIONER: That's all right.

PN99

MS GOOLEY: Senior Deputy President Kaufman. I might note that I was able to follow the submissions of my friend in that matter because of course he was reading from the submissions that are currently before Senior Deputy President Kaufman in relation to the identical matters and it would seem to me a far more efficient use of the Commission's resources if that matter and the matter of who I am authorised by and in fact, whether Mr Bretag is in fact authorised to appear before you in this matter was dealt with in the one proceeding.

PN100

THE COMMISSIONER: Yes.

PN101

MR BRETAG: Commissioner, if I could say Ms Gooley is right when she says that there are similarities between the submissions, they are not the same submissions because they are not - - -

PN102

THE COMMISSIONER: Are there different factual circumstances?

PN103

MR BRETAG: There are different factual circumstances. There are different factual circumstances. This work, as we say, has quite clearly flowed through a quite easily identifiable series of steps to Commander and what we say is that the requirements of section 2.5.2 of the national rules, ie. the successor status if you like of this work, is quite clear.

PN104

THE COMMISSIONER: Yes.

PN105

MR BRETAG: And we say that is not quite as clear in the other matter, and therefore there are different submissions in that regard. There are similar submissions, but not the same.

PN106

MS GOOLEY: Can I just refer to the submissions of the people that Mr Bretag represents in the other matter and he says - - -

PN107

THE COMMISSIONER: Ms Gooley, I must say - - -

PN108

MS GOOLEY: - - - that very same issue is - - -

PN109

THE COMMISSIONER: Just a moment.

PN110

MS GOOLEY: Sorry.

PN111

THE COMMISSIONER: I need to have some structure in how this is being dealt with. I have this terrible feeling that the national office believes that I shouldn't trouble myself with this and I should just hand it over to Senior Deputy President Kaufman because the submissions have been unhelpful to date.

PN112

MS GOOLEY: In these proceedings?

PN113

THE COMMISSIONER: Yes. Well firstly you don't have documents for me, you haven't argued most of the stuff that's - - -

PN114

MS GOOLEY: I have your Honour - sorry Commissioner. I have pointed you to rule 18 which gives the national secretary the power under the rules of the union to appear in these proceedings.

PN115

THE COMMISSIONER: Very well. Well, what I will do, is this. I think it's unfortunate that something like this should happen in the Commission. I think it's particularly unfortunate if clause 5.1.6 hasn't been followed. It does no credit upon the CEPU to ventilate an internal dispute if it hadn't already sought to resolve that dispute. To say that I am disappointed would be an understatement. I am going to recommend that clause 5.1.6 be activated. It is of course a matter for you whether it is or it isn't, and I will consider the decision that I am to make after 14 clear days.

PN116

If there is anything in relation to the agreement, I will put the parties on notice prior to that. I have had a brief examination of the agreement and there doesn't seem to be anything, but I'll put the parties on notice if there is. Otherwise I will consider my position and if I hand down a decision in your favour, Ms Gooley, I will of course reconvene. If I hand down a decision denying you leave, there's probably no need for me to reconvene, I can simply certify the agreement. Is there anything anybody wants to say? No? All right. Thank you for your time. The matter is adjourned.

<ADJOURNED INDEFINITELY [10.00AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 EXTRACT FROM THE NATIONAL RULES OF THE CEPU PN18
EXHIBIT #B2 EXTRACT FROM THE RULES - CLAUSE 2.5 PN55
EXHIBIT #B3 EXTRACT FROM THE RULES - RE MEMBERSHIP PN55
EXHIBIT #B4 RULE 26 OF THE COMMUNICATIONS DIVISION RULES PN69