AG2004/9989, Transcript of Proceedings [2005] AIRCTrans 343 (11 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10312

SENIOR DEPUTY PRESIDENT LLOYD

AG2004/9989

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

APPLICATION BY COMPASS GROUP (AUSTRALIA) PTY LTD T/AS EUREST AND ANOTHER
(AG2004/9989)
Hotels, Motels, Wine Saloons, Catering, Accommodation, Clubs and Casino Employees (Northern Territory) Consolidated Award 1986

MELBOURNE

2.11PM, TUESDAY, 01 FEBRUARY 2005

PN1

MR J MORLEY: I appear on behalf of Compass Group Australia Pty Ltd.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Morley.

PN3

MR MORLEY: This application is made under Division 2 of Part VIB of the Workplace Relations Act. This is an agreement made between the company and the LHMU to four of the employer's sites in the Northern Territory. The business of the company is a position of food and catering services at these sites. An application was filed with the Commission by the company on 20 December 2004 for certification of the agreement, which makes it just within the 21 day time frame given the vote occurred on 29 November.

PN4

The agreement meets the no disadvantage test when compared against the Hotels, Motels, Wine Saloons, Catering, Accommodation, Clubs and Casino Employees (Northern Territory) Consolidated Award 1986. It was approved by a valid majority of employees to be covered by the agreement on 29 November 2004. The steps taken by the company to give the employees an opportunity to decide whether they wanted to improve the agreement are as follows:

PN5

The agreement was verbally explained to employees both on a group and individual basis. The agreement was made available to all employees at each of the sites to view at least 14 days prior to voting, and the negotiations between the company representatives and the employees took place in February and September, October and November 2004. The agreement contains a dispute settlement procedure located at clause 27. The agreement specifies the expiry date in clause 5 as being 30 December 2007.

PN6

In terms of the Act, section 170LU requirements, I submit the agreement does not contravene and is not inconsistent with the Act. The provisions contained in the agreement do not contravene part 10(a) of the Act relating to freedom of associations.

PN7

The agreement does not contain discriminatory provisions against any particular individual or group of employees, and the agreement applies to a distinct operational unit and geographical locations within the singled business. On the basis of these matters, I would submit that the Commission certify the agreement today.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Morley, I have a number of questions about the agreement. The first one is, firstly we'll start with the time of lodgement. Our timing operates from the day on which it is stamped in the Commission, and therefore it was lodged on 22 December and therefore is a matter of two days out of time. There is a discretion for the Commission to extend a prescribed time and I would give that serious consideration.

PN9

Before coming to any conclusion on that, there are some other matters to raise with you. Clause 24 of the agreement has two aspects that are of interest. One is considerable provisions given in 24(a) and 24(b) about the encouragement of the role of the union, and union membership. I would appreciate confirmation that the employer also understands that an employee is free to choose not to join the union, and that that right would be respected. Thus, of more consequence than that is at 24(c) allows for the company to deduct union dues as requested. Now in a recent decision of the High Court and subsequent decisions by members of this Commission, that has been found to fail to meet the test of the matter pertaining to improper relationship and therefore, I am of the view that I would be unable to certify the agreement. Do you have anything to say on that?

PN10

MR MORLEY: Yes, addressing each of the points in order. We would seek leave given the date in fact was 22 December, my apologies for the confusion, to use the Commission's discretion to certify the agreement subject to the next two points, which I will address.

PN11

In terms of clause 24(a) and (b), we would submit that the operative part is perhaps in clause 24(b), while no employees will be coerced on the issue of the union membership and that employees would be free to join or not to join the union, and both these subsections (a) and (b) would be in compliance with part 10(a) of the Act. Perhaps the most difficult of questions which your Honour has raised, is that concerning subsection 24(c) and we acknowledge the Electrolux decision and subsequent K L Ballantyne decision, may indicate that this provision would not pertain to the employment relationship.

PN12

I would only be in a position to submit that the decision of Atlas, a Full Bench decision, print number 917092, would allow this provision or indicating that such a provision would pertain to the employment relationship and to draw your Honour's attention to paragraph 32. I have a copy of the decision.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN14

MR MORLEY: I draw your Honour's attention to paragraph 32 in which the Full Bench stated that, it can be seen the union fees clause is about the relationship between the employer and the union, but it is not confined to that. It also affects the relationship between the employer and each employee who authorises the employer to deduct union fees from the wages earned by an employee, and to remit the fees so deducted to the union.

PN15

A union fees clause adjusts the manner in which the employer's obligation to pay wages earned by an employee in an employment relationship is to be discharged. It pertains the relationship between the employer as such and employees covered by each of the agreements as such. In addition to that, I would submit that this provision may also be seen as being incidental to the operation of the provision of the agreement governing the payment of wages, clause 25, and that there is a nexus between the obligation imposed on the company to deduct and a requisite employee/employer relationship.

PN16

I acknowledge that there are conflicting authorities on this point and we would obviously leave it to your Honour to decide which of these authorities to follow.

PN17

THE SENIOR DEPUTY PRESIDENT: I must say that I was concerned..... there was other matters as well and I am inclined to the other authorities. It therefore becomes a matter as to how we deal with it and you can await my decision in that regard and then either pursue it through an appeal, or go and get a new agreement certified without the provision in.

PN18

On that opportunity, there has been some canvassing in the Commission as to how to deal with such an eventuality, and I think it is open to the Commission to rather than require a new agreement and a new vote, that the employees be notified by the employer and the union that the agreement that you are voting on now is varied or that the agreement they voted on first has been varied by the removal of that particular sub-clause and if they object to the agreement in its amended form, they are to advise the parties, within a 14 day period and then you can convey to the Commission as to whether any people object to it or not. If there is no objection, I would be prepared to certify, where there is an amendment of an agreement and it is of substantive change, has to be considered by the members, by the employees, but nowhere is it stipulated there has to be a vote on that, only to be done in that other manner which saves the company and union expense.

PN19

You may need to traverse those issues with the union before we take it any further. Would you be prepared to do that, or would you rather me make a decision and then - - -

PN20

MR MORLEY: Given the absence of the union today, it would probably be safer to converse with the union. I had discussions with the company that this may be an objectionable provision and notified them that according to various Commission authorities and facts, they do have to go back to the drawing board, if it is a substantive provision, to re-vote on it and the company was aware of that risk and are happy to comply with that course of action. Given the union isn't present today, I would probably prefer to confer with the union representative and then thus contact your associate following that.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, should you need any clarification as to a possible solution, I outline you are at liberty to contact chambers and seek a clarification from my associate or from myself, if need be.

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