AG2005/2842, Transcript of Proceedings [2005] AIRCTrans 555 (4 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10623

COMMISSIONER LEWIN

AG2005/2842

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

APPLICATION BY MOBIL REFINING AUSTRALIA PTY LTD AND OTHERS
(AG2005/2842)
Engineering (Oil Companies) Award 2000

MELBOURNE

11.34AM, WEDNESDAY, 23 FEBRUARY 2005

Continued from 11/2/2005

PN1

THE COMMISSIONER: Good morning. I have re-listed this matter because I have reached a conclusion that there is a part of the agreement that is of questionable content for the purposes of the application. I did indicate that I would give some consideration to this matter on the last occasion that the application was before the Commission. The provision concerned is the one set out at clause 14, entitled Contractors/Outsourcing. I have some doubts as to whether or not the last paragraph of that clause would, if tested, survive a challenge on the basis that the first two sentences in particular do not pertain to the employment relationship.

PN2

There are contending lines of authority on this, however I think the more recent authority of the Federal Court decision of French J, is to the effect that a requirement that an employer have an enterprise agreement with a relevant union or unions would not pertain to the employment relationship.

PN3

There is no doubt that the terms of a certified agreement or an agreement subject to an application for certification, seeking to protect the terms and conditions of employment of employees whose employment will be covered by the agreement, would be a matter pertaining. However, I question whether or not, carefully considered, the provisions of the last paragraph, clause 14, fall into that category. The paragraph itself in question does not actually deal with terms and conditions of employment as such, it simply deals with the existence of an enterprise agreement with unions, so that for example, in my view if the paragraph required that, for example, contractors employees would be entitled to terms and conditions of employment no less favourable than those prescribed by the agreement, such provisions would pertain to the employment relationship.

PN4

However, as a contrary example, if the agreement specified that a contractor would be required to have some form of agreement, whether it be an enterprise agreement or some other form of agreement, with an identified party whoever that party may be. That, of itself, does not pertain to the employment relationship. But I will hear the parties in relation to this matter if they contend to the contrary or if they wish to put a case to me now or to do so in writing I am amenable to either course of action.

PN5

MS CHEW: Thank you, Commissioner. First of all Mr McKay sends his apologies for his absence here today. We take on board the comments that you have made, Commissioner, and it might just be a simple exercise of clarifying the intention of the parties within the document. I am certainly informed by the employer here that they might wish to make some submissions as to the intention when the draft was originally drafted.

PN6

THE COMMISSIONER: I am not sure that that course of action is available. I think there is authority to the proposition this agreement will either have to be certified or not certified.

PN7

MS CHEW: Okay. All right. And I would need to take instructions as well, as to which course we adopt but certainly we take on board your comments and it might be a case of re-submitting or re-lodging the documentation.

PN8

THE COMMISSIONER: Yes. Any such variation would, of course, need to be the subject of the statutory provisions in relation to approval and other matters that are set out in the Act. Mr Beekhuizen.

PN9

MR BEEKHUIZEN: If the Commissioner pleases. Look, I am happy to follow that pathway. The only point, and we will go into award to clarifying this, that the paragraph really reflects - it is somewhat historical in nature, but it really reflects the process that we have in place for identification of what additional resources may or may not be required, so it fits into a whole process rather than a stand alone type of action, if that makes sense.

PN10

THE COMMISSIONER: Well, I was only concerned with the particular paragraph that I drew attention to, the final paragraph. The other paragraphs of the agreement do facilitate the use of contractors and outsourcing. It's the terms upon which they are to be utilised that I have drawn attention to, and those terms are effectively narrowed down to the existence of an agreement between described parties. Now, as I made the observation already, that could be with the RACV and that doesn't relate to the employment relationship. It could be that the contractor has an agreement with a superannuation fund or some industry association about something, none of those things in my view would survive an Electrolux style challenge. And, as I say, the most recent authority from the Federal Court, in my view, should be construed as to be indicative of the proposition that these particular words are terms which do not pertain.

PN11

Could I also - and I really don't know what the upshot of this is, I must say, but I could draw your attention to the fact that the ACCC, is currently prosecuting the CFMEU, in relation to the making of an agreement, which may be the type of agreement that is contemplated by this clause and would therefore, it would seem, at least in that Commission's view, be contrary to the Trade Practices Act, as well. That is another reason why I have given this matter some careful consideration. I gather that, in essence, the intention of the parties was to ensure the protection of the terms and conditions of employment of the contractor's employees as potentially affecting the terms and conditions of employment of the employees of the company.

PN12

It would seem to me, if that is the intention, that can easily be expressed in words which would pertain to the employment relationship having regard to the historical authority on that subject. I will adjourn this matter and I direct that the parties advise the Commission, by the end of this week what course of action they intend to take. Thank you.

<ADJOURNED INDEFINITELY [11.42AM]