C2004/6756, Transcript of Proceedings [2005] AIRCTrans 578 (8 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10599

COMMISSIONER GRAINGER

C2004/6756

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

Australian Municipal, Administrative, Clerical and Services Union
and
North East Region Water Authority t/as North East Water
(C2004/6756)
North East Water Certified Agreement 2003

MELBOURNE

10.14AM, TUESDAY, 25 JANUARY 2005

Continued from 2/12/2004

PN1

THE COMMISSIONER: Thank you. Is Mr McCandless doing the talking or you Mr Rankin?

PN2

MR R RANKIN: Could I indicate a change in appearance.

PN3

THE COMMISSIONER: Yes, thank you very much.

PN4

MR RANKIN: I will now be appearing for the ASU, along with Mr McCandless.

PN5

MR G KATZ: Commissioner, I continue to appear for North East Region Water Authority.

PN6

THE COMMISSIONER: Thank you. Yes, Mr Rankin?

PN7

MR RANKIN: Commissioner, we have had a brief discussion between the parties, and Mr Katz has made it clear that North East Water would like to try and get a conciliated resolution to this matter, and for our part we are prepared to have another try at that. So we were hoping that we may be able to use your good services to assist in that process, and maybe it might be appropriate to adjourn into conference and use you to have a chat to both the parties.

PN8

THE COMMISSIONER: Yes. What I would like to do then is to adjourn and probably spend 15 minutes talking to the parties and just see where we get in that process. Otherwise what I propose is that we go back on the record and the parties address me in relation to the submissions that they have put to me. That is, not to read the submissions they have put to me, but to address me in relation to any specific matters they want to, as to the jurisdictional issue, and then I will indicate my views on those matters and see where that leaves the parties, feeling they want to go further with the matter today, or beyond today. Does that sound an acceptable timetable Mr Rankin and Mr Katz?

PN9

MR RANKIN: Yes.

PN10

MR KATZ: Yes.

PN11

THE COMMISSIONER: Yes, thank you very much. I will now adjourn. Mr Rankin, I think I will meet with Mr Katz first, and then I will meet with you and your people. Thank you very much I will now adjourn.

<SHORT ADJOURNMENT [10.17 AM]
<RESUMED [10.27 AM]

PN12

THE COMMISSIONER: Thank you. I have had the opportunity of conferring with the parties and I think, Mr Rankin and Mr Katz, that we have agreed that the best thing is to deal with the jurisdiction issue first, and let me hear such further submissions as the parties want to make, and to let them tender their submissions formally, and then see where that gets us. So are you happy to do that Mr Rankin and Mr Katz?

PN13

MR RANKIN: Yes.

PN14

MR KATZ: Yes.

PN15

THE COMMISSIONER: Thank you very much. Mr Rankin, if you would first tender the written submissions.

PN16

MR RANKIN: If I could tender that document?

EXHIBIT #A1 ASU WRITTEN SUBMISSIONS

PN17

The ASU would seek to rely upon that document. We have read the submissions of Mr Katz for the employer, and having read those submissions we maintain the submissions that we have made. Mr Katz indicated on a number of occasions that there were aspects that we had not demonstrated or proved, such as, at Part IV he ascertains that we have not demonstrated - I am sorry, I retract that. I need to go to Mr Katz's document.

PN18

THE COMMISSIONER: Mr Rankin, just while you are doing that, it might also be useful if you tender the letter of the ASU to Mr Steve Morell, Human Resources Manager of North East Water of 13 December 2004, which came with your submission.

PN19

MR RANKIN: Yes I am happy to do that. At point 4 Mr Katz says:

PN20

At no time prior to these proceedings being issued did Mr Trevor McCandless ever invoke clause 41 of the certified agreement.

PN21

We would contend that that matter and other matters further on are matters of evidence which, if we were to proceed, we would present that evidence which could be tested by the court. But apart from those matters of evidence we rely on the submissions that we have made. If it please the Commission.

PN22

THE COMMISSIONER: Thank you very much Mr Rankin. Mr Katz?

PN23

MR KATZ: I have really nothing further to add to the submissions which were lodged.

PN24

THE COMMISSIONER: I might get you to tender it.

PN25

MR KATZ: Yes, if that could be tendered?

EXHIBIT #R1 LETTER OF TERMINATION 24/11/2004
EXHIBIT #R2 NORTH EAST WRITTEN SUBMISSIONS

PN26

THE COMMISSIONER: You have nothing further to add?

PN27

MR KATZ: Just that even if the Commission were to find that it has jurisdiction under the dispute resolution clause 41, there is really nothing to arbitrate on, because we would say, with the greatest respect, Commissioner, for example, reinstatement. Now there is nothing in the EBA or the award which says that termination shall not be harsh, unjust or reasonable, or gives a right to reinstatement either in the EBA or the Award. And the Act clearly deals, Part VIA, Division 3, deals with termination of employment. That is what that section is there for, not to be dealt with under a dispute resolution clause. So the arbitral powers, if the Commission did have arbitral powers, we say where can it go? Where can it just rule that we didn't follow the return to work, the occupational health and safety provision, we didn't follow the dispute resolution? Where does that leave the employee? We say the Commission - - -

PN28

THE COMMISSIONER: Where does it leave Mr Smith?

PN29

MR KATZ: Mr Smith, yes. The Commissioner still wouldn't have the power to reinstate, that would be our only other further submission Commissioner.

PN30

THE COMMISSIONER: Thank you. I know that is inherent in your submission in any event. Yes, all right, thank you very much. I have now had the opportunity to both consider the written submissions and to consider the further brief submissions made before me today, and I am therefore ready to issue my decision, with brief reasons, on the jurisdictional issue.

PN31

Firstly, this matter was brought to the notice of the Commission on 24 November 2004 by the ASU on Form R47, pursuant to Rule 66 of the Commission's rules, and pursuant to clause 41, the dispute settlement procedure of the North East Water Enterprise Agreement 2003, the certified agreement. The parties to that agreement are North East Region Water Authority, ASU and APESMA. Secondly, the notice on Form R47 specifies that the matters in dispute relate to, one, failure by the employer to properly apply the provisions of clause 26 of the agreement concerning rehabilitation, to Mr Cliff Smith, who I will hereafter refer to as Mr Smith, and, secondly, failure by North East to adhere to the dispute settling procedures in that the employer has terminated the employment of Mr Smith while the parties are in dispute. Three, on 24 November 2004 North East terminated Mr Smith's employment with five weeks' pay in lieu of notice, in addition to his other termination entitlements, and that letter is exhibit R1.

PN32

Four, ASU has made written submissions in this matter and they are exhibit A1. Five, North East has made written responses to those submissions and such further submissions as it wished to make, and they are exhibit R2. Six, having considered the written submissions of the parties and having heard their further submissions in relation to this matter today, I am of the view that firstly, the Commission does not have jurisdiction to arbitrate the question of the termination of Mr Cliff Smith's employment, because Mr Smith ceased to be an employee of North East on 24 November 2004, prior to the lodgement by ASU of notice to the Commission in this matter. Secondly, the Commission does have jurisdiction pursuant to section 170LW of the Workplace Relations Act to deal with this matter insofar as it relates to (a) the proper application of clause 26 of the agreement and (b) the use of the dispute settlement procedure set out in clause 41 of the agreement. And pursuant to those powers under section 170LW the Commission may in its discretion do either or both of the following, (a) settle disputes over the application of the agreement, (b) appoint a board of reference as described in section 131 of the Act for the purpose of settling such disputes. The wording of section 170LW is clearly addressed to disputes between the employer, in this case North East and employees whose employment will be subject to the agreement, in this case, at the very, least present and ongoing employees but not former or past employees.

PN33

Seven, in the case of Pugsley & Hunt v United Energy Limited, which is PR945579, the applicants were individuals whose employment had been terminated prior to the application to the Commission. Commissioner Cribb, at paragraph 50, found that at the time the applicants lodged their section 170LW notices they were not employees of United Energy Limited. She therefore found that their employment was no longer subject to the agreement and, at paragraph 54, that there was no dispute able to be brought to the Commission by them pursuant to section 170LW. As Commissioner Cribb rightly, in my view, observed at paragraph 54:

PN34

It is not possible for employees who have been terminated to have a dispute with their employer in the industrial sense. Former employees can have a legal dispute with their previous employer but they do not have access to the dispute settling procedure to the agreement as a process for resolving the dispute.

PN35

Eight, whatever conclusion anyone may choose to reach over the ethics of North East terminating Mr Smith's employment as it did, and when it did, I do not believe it is competent for the Commission, pursuant to an exercise of its powers under section 170LW of the Act, to seek to arbitrate the fact of that termination itself. Mr Smith has rights under section 170CE of the Act in relation to unfair dismissal, and amongst the remedies available through that process is that of reinstatement. He has, I am informed in conference today, made such an application and it is listed for conciliation in late February at Wodonga.

PN36

Nine, however, that does not mean that the Commission does not have the power, duty and obligation pursuant to section 170LW of the Act to consider the application by ASU insofar as it raises issues which relate to present employees of North East as to the application of clause 26, rehabilitation, and clause 41, dispute settlement, of the agreement.

PN37

Ten, insofar as the applicant may wish to press this application in this matter on behalf of present employees of North East, I am of the view that the most appropriate means of progressing the matter is for the parties to make such written submissions in relation to the scope and application of clauses 26 and 41, as they consider appropriate. I would then propose to hold a hearing to hear addresses in relation to those submissions, after which I would propose to issue such recommendations to the parties as I might consider appropriate on the basis of the material before me.

PN38

That really leaves the issue of Mr Smith to be addressed, in my view, either through his application for unfair dismissal, through the conciliation which is scheduled for late February, or to offer my services to assist the parties further in regard to that aspect of the matter today, by way of an advance conciliation which would not rule out the access to the conciliation, which is already scheduled for late February, and it leaves the issue of the broader issues of clause 26 and clause 41 to be considered by the ASU, to let me know how they further want to deal with that matter. I am just wondering, Mr Rankin and Mr Katz, each in turn, would you like to have a little bit of time to think about things now, and address me on the record, or would you like me just to adjourn and let my associate talk to you, and if you wish my assistance with conciliation in relation to Mr Smith and the unfair, I am happy to assist you today. If you want to go back on the record to tell me how you would like, and if you would like, to progress the bigger picture issues of clause 26 and clause 41, you could let me know.

PN39

MR RANKIN: I believe it might be appropriate to have a short adjournment so that Mr McCandless and Mr Smith and I can have a discussion about your decision.

PN40

THE COMMISSIONER: I will order the transcript as well so that it is made available to you.

PN41

MR RANKIN: And, you know, maybe if we had till 11 o'clock we could go and have a cup of coffee and digest both the coffee and your decision.

PN42

THE COMMISSIONER: Yes. And consider what course of action you might want to take.

PN43

MR RANKIN: And come back and let you know.

PN44

THE COMMISSIONER: Putting to one side the course of action of appeal with any party as open to them.

PN45

MR RANKIN: Well, we will contemplate that too. But if we could have maybe a bit longer than, you know - - -

PN46

THE COMMISSIONER: No. let's say 11.

PN47

MR RANKIN: 11 o'clock.

PN48

THE COMMISSIONER: Mr Katz are you happy with that?

PN49

MR KATZ: And I am happy with that course of action.

PN50

THE COMMISSIONER: Yes, thank you very much. We will reconvene at 11. I will have my associate come and see you and just see precisely what you want to do, do you want me to assist with conciliation at that point, do you want to go back on the record at that point. Good, thank you very much.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 ASU WRITTEN SUBMISSIONS PN16
EXHIBIT #R1 LETTER OF TERMINATION 24/11/2004 PN25
EXHIBIT #R2 NORTH EAST WRITTEN SUBMISSIONS PN25