AG2005/2015, Transcript of Proceedings [2005] AIRCTrans 676 (17 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10562

DEPUTY PRESIDENT MCCARTHY

AG2005/2015

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

APPLICATION BY NATIONAL FOODS MILK LIMITED, WESTERN AUSTRALIA AND ANOTHER
(AG2005/2015)

PERTH

1.33PM, THURSDAY, 17 FEBRUARY 2005

Reserved for Decision

PN1

MR M ROGERS: I appear on behalf of National Foods Milk Limited, as the Human Resources Manager.

PN2

MS K GROVES: I appear on behalf of the Australian Manufacturing Workers Union.

PN3

DEPUTY PRESIDENT: Thank you. All the paperwork appears to be in order. From the statutory declarations and the content of the agreement I circulated to the parties a preliminary assessment of the fulfilment of the satisfaction of the requirements of the Act that would enable certification of the agreement. In the report I circulated I identified two areas that I wished a further explanation on because they may be matters in the agreement that do not pertain to the requisite relationship between the employer and the employees to be covered by the agreement, those clauses being clause 12, use of non permanent employees, and clause 26, use of contractors and labour hire.

PN4

To the extent that parties wish to address me, I only require those two issues being addressed, although it should not preclude you from making any other comments or addressing any other issues you may wish to raise.

PN5

MR ROGERS: Sir, the only other one, it was lodged out of time.

PN6

DEPUTY PRESIDENT: It was lodged out of time too.

PN7

MR ROGERS: It was voted on by a majority of the employees on 10 December, and we seek leave under section 111(1)(r) to have the period extended. It was lodged on 27 January, which is almost four weeks out of time.

PN8

DEPUTY PRESIDENT: Yes. I think on the report I identified I needed to know the date. So it was four weeks out of time. What is the reason for that, Mr Rogers?

PN9

MR ROGERS: I suppose there is no prejudice to either party in extending the period because it was - - -

PN10

DEPUTY PRESIDENT: Yes. But what was the reason why it was delayed?

PN11

MR ROGERS: It was the administrative arrangements required to have both parties sign the agreement, the impact of the Christmas/New Year break. Unfortunately I also had some unavoidable family urgent requirements which came up, and a requirement for us to have some valid discussions on the Electrolux case and matters as well.

PN12

DEPUTY PRESIDENT: I see.

PN13

MR ROGERS: Unfortunately there was a range of matters there.

PN14

DEPUTY PRESIDENT: Yes, I see.

PN15

MR ROGERS: Sir, also there was in item 641 a question on when a final copy of the agreement was provided to the employees, and that was 19 November, which is 21 days prior to the vote.

PN16

DEPUTY PRESIDENT: Yes, thank you.

PN17

MR ROGERS: So in regard to item 9.1 and 9.2, Ms Grove from the AMWU will make the submissions in regard to those matters.

PN18

DEPUTY PRESIDENT: Yes, thank you. Yes, Ms Groves?

PN19

MS GROVES: It's our submission that both clause 12, which deals with the use of non permanent employees and casuals, and clause 26, which deals with the use of contractors and labour hire, do pertain to the requisite employment relationship required under section 170LI(1) of the Act. Both of these clauses deal with the form of engagement of employees, the terms and conditions under which the employees would be engaged, and the role and status of those employees with respect to any work covered by the agreement.

PN20

Broadly speaking, these clauses provide that non-permanent employees, casuals and contractors who are performing work covered by the agreement, whether employed directly or by a labour hire agency, will be employed under terms no less favourable than those of the agreement. They constitute an agreement between the employer, the employees and the union regarding the terms and conditions upon which certain categories of employees will be engaged. The conditions of employment under which others in an industry may be employed affects other employees and pertains to the requisite relationship is fairly well established.

PN21

In the decision of Moore ex parte Federated Miscellaneous Workers Union of Australia, the High Court held that a claim concerning the terms on which contractors were engaged pertain to the requisite relationship, and that the inclusion of a clause regulating the terms upon which contractors could be engaged could be validly included in an award, particularly to ensure its practical efficacy and could be settled by an award as incidental to a dispute about conditions of employment.

PN22

With respect to this agreement, clauses 12(a)(ii) and 12(c)(i) provide an outline of the reasons for the engagement of these employees, however, they do not exhaust the possible scenarios under which particular categories of employees may be engaged. Clause 12(b)(iii) and 12(c)(ii) require agreement by the union prior to the engagement of employees under these clauses, and clause 12(b)(iv) requires the union to note unreasonably oppose agreement in respect of these matters. These clauses, when assessed in their specific context, can be characterised as machinery or ancillary provisions relating to substantive provisions which we say clearly pertain to the requisite relationship.

PN23

Both the union and the employers have a direct concern in removing obstacles to the employment of their members and to the maintenance of protection of union standards and wages. Authority for this proposition can be found in the Metal Trades Employers Association v Amalgamated Engineering Union at paragraphs 418 and 419. Further, we would submit that these provisions are appropriately characterised as provisions for the maintenance of the settlement of matters in issue between the parties, and we would refer your Honour to the decision of R v Commonwealth Court of Conciliation and Arbitration ex parte Kirsch, where Dixon J stated that the principle on which the Metal Trades position rested is that:

PN24

The interest which an organisation of employees possesses in the establishment for maintenance of industrial conditions for its members gives a foundation for an attempt of a party to prevent employers employing anyone on less favourable terms.

PN25

We would agree with the submission of the NUW in the Ballantyne case, that a certified agreement may have no efficacy in protecting the terms and conditions of the employees absent an agreement with the employer as to the use of such labour, and further, that the union and the employees have a legitimate industrial interest in ensuring that the terms and conditions of employment which they have agreed with the employer are not undermined by the engagement of persons to do the same work at lower pay and in varying conditions.

PN26

Vice President Ross accepted the submission found in the clause in that agreement pertained to the requisite relationship, and the relevant clauses in that matter are not unlike clauses 12(a)(ii), 12(b)(i) and 12(c)(i) and clause 26 in this agreement. Clearly the AMWU have a direct concern in removing obstacles to the employment of its own members who are direct employees of the employer, and the protection of the standards of pay and conditions that AMWU members who are employed under this agreement.

PN27

With respect to the provisions within these clauses that make specific reference to the role of the union, the statutory context within which the agreement was made is relevant in the assessment of whether or not it pertains to the requisite relationship, or as acknowledged by Vice President Ross in the Ballantyne decision in determining whether a provision is incidental or ancillary. The Vice President accepted the NUWs submission, given the status of the union as party principal to the agreement as representative of the employees and as an organisation with obligations and rights under the agreement, or if unions were denied any role in the implementation or monitoring of an agreement to which they are a party.

PN28

There is also authority for the proposition that the fact that a matter can be characterised as pertaining to one relationship, for example, the union and the employer, does not prevent it from also pertaining to the requisite relationship. The requisite relationship is not mutually exclusive of other relationships. We submit that the provisions concerning the agreement of the union and the employer which can be characterised as pertaining to the relationship of the union and employer also pertain to the requisite relationship of employer and employee, as the provisions directed to strengthening the position of employees in relation to the work performed by the employees, and the terms and conditions under which that work is performed.

PN29

We say there is ample authority supporting our assertion that these clauses pertain to the requisite relationship, what are ancillary and machinery to it. The clauses do not seek to prohibit the engagement of non permanent employees, casuals, contract or labour hire employees, and do not seek to cover other work performed, not performed by employees under the agreement, and such that can be distinguished from the decision in the Cox case. We would conclude that there is nothing in clauses 12 and 26 that would preclude the certification of the agreement, and we ask that it be certified from today's date.

PN30

DEPUTY PRESIDENT: Thank you, Ms Grove. There is one other element of clause 12 that I need either addressing on or undertakings with respect to the operation of it, and that's 12(b)(iii) and (iv) and (c)(ii) and (iii), to ensure that the provisions of section 170LU are not contravened by those being objectionable provisions in the sense of those particular provisions having the effect of refusal to employ particular categories of employees. Whilst I didn't identify that in the report as an issue, are you in a position to address that, or Mr Rogers? I do need I think to identify it, and alert you to it being a potential problem with respect to 170LU. Are you in a position to address that at the moment?

PN31

MS GROVES: I'm not actually, sir, I'm sorry. I don't have my copy of the Act with me.

PN32

DEPUTY PRESIDENT: Mr Rogers, are you in a position to address that?

PN33

MR ROGERS: I don't know what that is.

PN34

DEPUTY PRESIDENT: We'll just go off record for the moment.

<OFF THE RECORD

PN35

DEPUTY PRESIDENT: The cause of the concern that I have with respect to particular provisions, and I understand Ms Grove is willing to make a couple of comments.

PN36

MS GROVES: Sir, with respect to clause 12(b)(iii) and (iv) and clause 12(c). I can confirm that we will certainly make an undertaking that there is no suggestion that the refusal to employ and employee will be in any way related to their membership of the union.

PN37

DEPUTY PRESIDENT: Yes, thank you, Ms Grove. Mr Rogers, anything you wish to add?

PN38

MR ROGERS: Sir, negotiations have been carried out in good faith, and the EBA complies with the no disadvantage to employees requirement. The agreement relies, in conjunction with the Masters Dairy Milk, by virtue of clause 5 and clause 2, and contains an appropriate resolution process which provides an opportunity for the parties to take disputes to the Commission if they can't be resolved by the process of consultation in clause 9. It has a nominal expiry date of 15 June 2007 in clause 4, subject to the resolution of the matters, which would appear to be the case, it complies with all the requirements of the Workplace Relations Act, and we therefore request your approval to certify the National Foods Milk Limited and AMWU Western Australia Enterprise Bargaining Agreement 2004. Thank you very much.

PN39

DEPUTY PRESIDENT: Yes, thank you. I will reserve my decision. If there is a reason for me to not be able to certify the agreement in accordance with the requirements of the Act, I will provide the parties with a further opportunity to either address me or take such actions as may be necessary to make the agreement certifiable. This matter is adjourned.

<ADJOURNED INDEFINITELY [1.47PM]