C2005/19, Transcript of Proceedings [2005] AIRCTrans 510 (1 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10567

SENIOR DEPUTY PRESIDENT DRAKE

C2005/19

s.170LW - application for settlement of dispute (certification of agreement)

Mr Quentin Cook
and
Australia Post
(C2005/19)
Australia Post Enterprise Agreement 2004

SYDNEY

10.07AM, FRIDAY, 18 FEBRUARY 2005

PN1

MR Q COOK: I am the applicant in this case.

PN2

MR I BRYANT: With me is MR M ETUE, and we seek to intervene on behalf of the CEPU in this matter.

PN3

MR S WOODBURRY: I seek leave to appear on behalf of the Australian Postal Corporation, with me MS J PORTER, from Blake Dawson Waldron.

PN4

THE SENIOR DEPUTY PRESIDENT: Is there any objection to Mr Woodburry's leave to appear? Is there any objection to the CEPUs application to intervene? Both applications are granted. Yes, Mr Cook.

PN5

MR COOK: Thank you, Senior Deputy President. Senior Deputy President, the dispute today is a dispute that involves the dispute settling procedure laid down in the Australia Post Enterprise Agreement 2004, particularly section 12, the dispute settling procedure. Clearly and in unambiguous terms, the dispute resolution procedure in section 12, and also the section entitled Agreed Terms, section 2.3(c), 2.2 and 2.7, clearly allows for the role of a representative in dispute matters. Now, that is both the dictionary definition of dispute - - -

PN6

MR WOODBURRY: Your Honour - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Woodburry?

PN8

MR WOODBURRY: Your Honour, I raise at this point because there is a jurisdictional objection we would like to raise, your Honour, in due course.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, yes. Mr Cook, are you representing yourself as a complainant pursuant to the dispute resolution procedure?

PN10

MR COOK: Yes, I am, Senior Deputy President.

PN11

THE SENIOR DEPUTY PRESIDENT: You are an employee?

PN12

MR COOK: I am.

PN13

THE SENIOR DEPUTY PRESIDENT: And you are making a complaint pursuant to the dispute resolution procedure?

PN14

MR COOK: Correct.

PN15

THE SENIOR DEPUTY PRESIDENT: About what?

PN16

MR COOK: About the rights of staff to be represented in matters of dispute.

PN17

THE SENIOR DEPUTY PRESIDENT: I thought you said you were making a complaint for yourself.

PN18

MR COOK: That is right. I seek to represent individuals in dispute matters and that process is in dispute with Australia Post. So what Australia Post is saying in this instance, Senior Deputy President, is that staff aren't allowed representation in matters of dispute, inquiry and discipline.

PN19

THE SENIOR DEPUTY PRESIDENT: You seek to represent unnamed persons in disputes with Australia Post as a representative?

PN20

MR COOK: That is correct.

PN21

THE SENIOR DEPUTY PRESIDENT: And you are here to complain that the right of those unidentified employees of Australia Post has been denied to them and you seek to appear on their behalf?

PN22

MR COOK: That is correct.

PN23

THE SENIOR DEPUTY PRESIDENT: And who are they?

PN24

MR COOK: The matter or the individual in question is a Mr Peter Fairhurst. But it is also a general complaint too, Senior Deputy President, in that Australia Post, on discussions with probably the most senior levels of management in New South Wales, have underlined the fact that that is their position, that there is to be no representation of staff members in matters of dispute or matters of discipline or matters of inquiry.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. I think I will hear from Mr Woodburry, thank you.

PN26

MR WOODBURRY: Yes, thank you, your Honour. We object to Mr Cook's appearance and notification. I did want to allow Mr Cook the opportunity to explain what the purpose of the notification was before I did stand up and raise the objection in fairness to him.

PN27

THE SENIOR DEPUTY PRESIDENT: It's always useful.

PN28

MR WOODBURRY: I think we now do know that the substance of the matter that he is representing to you today is in effect a situation where he is purporting to act as a representative on behalf of other employees in relation to what is in effect a general issue concerning the policies and practices of Australia Post. He is not representing himself as an individual in relation to any specific grievance and that is the understanding which Australia Post has come here today with and he has confirmed that.

PN29

THE SENIOR DEPUTY PRESIDENT: He does say that he is doing both, that he is representing Mr Fairhurst with a particular complaint and making a complaint in general. Is that the case, Mr Cook?

PN30

MR COOK: That is the case.

PN31

THE SENIOR DEPUTY PRESIDENT: Is Mr Fairhurst here?

PN32

MR COOK: Mr Fairhurst is in the body of the court.

PN33

MR WOODBURRY: Your Honour, in relation to Mr Fairhurst, on Monday of this week the general manager of Human Resources for Australia Post contacted Mr Cook upon receipt of the notification to inquire as to the nature of the proceedings before your Honour today and was advised that Mr Cook was not pursuing any particular individual grievance in relation to the notification. I would rather it was more of a general nature concerning the matters which he is described here today. So we understand that there is actually no individual dispute or grievance which was going to be - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Is Mr Fairhurst here?

PN35

MR COOK: Yes, he is.

PN36

THE SENIOR DEPUTY PRESIDENT: Mr Fairhurst, could you step forward, please. Are you in dispute with Australia Post?

PN37

MR P FAIRHURST: I am at the moment, yes.

PN38

THE SENIOR DEPUTY PRESIDENT: What about?

PN39

MR FAIRHURST: It's a compensation situation and I went to the AAT and lost the appeal against denial and they are planning to sack me basically.

PN40

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN41

MR WOODBURRY: Well, your Honour, we were led to believe coming in here from Mr Cook that he was not going to be pursuing Mr Fairhurst's complaint, so that is a new development in relation to the dispute, but be that as it may, we say there are some fundamental difficulties with Mr Cook appearing here today. Firstly he is purporting to appear on behalf of - knowing that there is an organisation which is not registered under the Act which he purports to be an officer of, and his representation here today is in that capacity, primarily, we would say. The matters which he seeks to agitate concern the operation of provisions of the enterprise agreement and also various provisions of various Australia Post Corporation polices and procedures. Now, in those circumstances, we say that he himself has no standing to either appear before this Commission or to notify disputes in relation to those matters. There is - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Perhaps we should ask Mr Cook to clarify that for the record.

PN43

MR WOODBURRY: Yes, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Are you appearing as an individual or as an officer of an organisation, Mr Cook?

PN45

MR COOK: Senior Deputy President, I am not appearing as a representative of any organisation. I appear as an individual in relation to representing Mr Fairhurst, but also the general concern, one that has been articulated by the management of Australia Post, that individual staff members are not allowed representation.

PN46

THE SENIOR DEPUTY PRESIDENT: We will deal with the general matter that Mr Cook is here for, separate from your submission in relation to Mr Fairhurst.

PN47

MR WOODBURRY: In terms of the general position then, we say he still has no standing to appear as an individual employee because, as we apprehend it, there is actually no dispute with Mr Cook in his capacity as an individual.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, but we should argue that second. You should argue that second. What I would like to hear from you about is any general proposition?

PN49

MR WOODBURRY: The general proposition concerning?

PN50

THE SENIOR DEPUTY PRESIDENT: That he is alleging, the general failure.

PN51

MR WOODBURRY: The general failure. Going to - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Insofar as he wishes to complain about that.

PN53

MR WOODBURRY: Well, in terms of that, your Honour - - -

PN54

THE SENIOR DEPUTY PRESIDENT: You say he has no standing because he is not part of a registered organisation?

PN55

MR WOODBURRY: He is not part of the registered organisation that is a party to the agreement, that is the primary position that we have, and in relation to the terms of the agreement, which has been obviously entered into between Australia Post and the Union, he is seeking to agitate matters which are the subject of discussions between us and the Union at this point in time. We don't see that he has any particular standing to now raise issues concerning that.

PN56

THE SENIOR DEPUTY PRESIDENT: Mr Cook, what do you say about that?

PN57

MR COOK: I don't know if you have a copy of the enterprise bargaining agreement in front of you.

PN58

THE SENIOR DEPUTY PRESIDENT: Don't worry about that.

PN59

MR COOK: Okay, but section 12 of the dispute resolution process - - -

PN60

THE SENIOR DEPUTY PRESIDENT: No, I don't want to hear what you say about the merits. I want to know what you say about the general proposition - - -

PN61

MR COOK: That I am not allowed to appear?

PN62

THE SENIOR DEPUTY PRESIDENT: - - - that you have no standing to appear here in relation to that matter.

PN63

MR COOK: Right, well, the dispute resolution process clearly does say that individuals have got a right to represent issues at this level.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes, well, we are not talking about Mr Fairhurst's matter now. We are talking about the general matter that you wish to agitate.

PN65

MR COOK: That is correct. It says that if the matter remains unresolved after points (a) to (c) above have been followed, it may be notified to the Australian Industrial Relations Commission. Now, it's on that basis that I seek to represent that issue.

PN66

THE SENIOR DEPUTY PRESIDENT: Okay, as a fellow employee?

PN67

MR COOK: As just an ordinary member of staff, which the EBA allows me to do under section 12.

PN68

THE SENIOR DEPUTY PRESIDENT: Well, in relation to the general matter which you wish to agitate, Mr Cook, it is clear, I think, that you have no right of appearance before this Commission and I am not going to allow you to be heard on the matter. Insofar as you are limiting your appearance to Mr Fairhurst's difficulties and you are a fellow employee who wishes to assist him at a hearing in relation to the dispute resolution procedure under a notification pursuant to section 170LW I will allow you to appear, subject to anything Mr Woodburry might have to say in opposition to that.

PN69

MR WOODBURRY: Well, your Honour, I suppose the difficulty we have is this, that as I understand it the details concerning Mr Fairhurst were not going to be raised today.

PN70

THE SENIOR DEPUTY PRESIDENT: No, I didn't say I would hear it today.

PN71

MR WOODBURRY: No, okay, thank you, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: I said I would allow him to appear.

PN73

MR WOODBURRY: Yes, all right. In terms of his appearance I assumed that his appearance would be as agent effectively under the Act.

PN74

THE SENIOR DEPUTY PRESIDENT: Well, yes, I suppose, friend, fellow employee, agent, he can appear. If Mr Fairhurst requests him as a fellow employee and he wishes to appear at his own expense and time and Mr Fairhurst requests his assistance, it's a matter of discretion in the Commission to allow him to assist and I haven't heard anything from Mr Fairhurst or anybody else about that, but in usual circumstances if an employee wishes to make a notification under the dispute resolution clause and sought the assistance of a fellow employee, it's not usually something I would refuse, so long as he wasn't asking anyone else to pay for it.

PN75

MR WOODBURRY: I think the primary difficulty we have, your Honour, is the fact that the notification is from Mr Cook himself. He doesn't necessarily mention Mr Fairhurst at all.

PN76

THE SENIOR DEPUTY PRESIDENT: No.

PN77

MR WOODBURRY: And that, we see, is the fundamental difficulty in terms of the particular notification and in those circumstances we don't know if he can proceed in respect of today in relation to the matters that have been filed.

PN78

THE SENIOR DEPUTY PRESIDENT: That is right.

PN79

MR WOODBURRY: Thank you.

PN80

THE SENIOR DEPUTY PRESIDENT: Mr Cook, in relation to your appearances in the general matters, I have already ruled on that, you don't have a right of appearance in this Commission. You have heard what I said to Mr Woodburry about you being able to appear as a friend or agent or fellow worker if Mr Fairhurst requests you to do so. However, if Mr Fairhurst wishes to make such an application it has to be his. So he has to make the application and he has to seek your assistance in the course of that application. It's not an application you have any standing to make. If Mr Fairhurst wishes to make an application pursuant to section 170LW, I will hear him and at the same time I will hear your application to appear with him. Is there anything else?

PN81

MR WOODBURRY: No, thank you, your Honour.

PN82

MR COOK: Thank you.

PN83

THE SENIOR DEPUTY PRESIDENT: Mr Etue and Mr Bryant, there is nothing you wish to say?

PN84

MR BRYANT: No, I don't think so at this stage, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: The Commission is adjourned.

<ADJOURNED INDEFINITELY [10.21AM]