AG2005/2850, Transcript of Proceedings [2005] AIRCTrans 767 (29 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10918

COMMISSIONER DANGERFIELD*

AG2005/2850

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

APPLICATION BY TRANSPORT WORKERS' UNION OF AUSTRALIA-VICTORIAN/TASMANIAN BRANCH AND OTHERS
(AG2005/2850)
Transport Workers' (Armoured Vehicles) Award 2004

ADELAIDE

10.06AM, WEDNESDAY, 16 MARCH 2005

PN1

MR R WYATT: Branch Organiser for the Transport Workers' Union, South Australia and Northern Territory branch.

PN2

MR B KLITSCHER: I appear on behalf of Chubb Security Services and with me is MR R PEARCE, manager transport services.

PN3

THE COMMISSIONER: Thanks Mr Klitscher and Mr Wyatt.

PN4

MR WYATT: If the Commission pleases, before the Commission today is an agreement signed by Mr M Smith for the company, Mr John Allen, the Federal Secretary and Mr Alex Gallagher the branch secretary, which has been lodged with the Commission under division 2, section 170LJ of the Australian Workplace Relations Act 1996. The Transport Workers' Union is the organization legally entitled to represent the interests of the employers covered by this agreement.
The Transport Workers' Armoured Vehicles Award 2004 is the award which underpins this agreement.

PN5

The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declaration signed by Mr Allen for the union and Mr Smith for the company. The agreement does not, in relation to the terms and conditions of employment, disadvantage the employees who are covered by the agreement. The agreement at clause 15 includes procedures for preventing and settling disputes between the parties and in particular allows for referral to the Australian Industrial Relations Commission for settlement of clause 15(e). The agreement provides for the consultation with employees in relation to any changes that may affect those employees. The agreement applies only to a part of the single business. Employees covered by this agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote was taken on 11 January 2005, at which a valid majority voted in favour of this agreement.

PN6

The total number of employees covered by this agreement is 40. In respect to section 170LT(7) of the Act, there are two persons under 21, one Aboriginal Torres Strait Islander, three part-time employees and 28 casual employees. Pursuant to Part VIB, division 4 section 170LT of the Act, we seek the Commission to certify an agreement referred to as the Chubb Security Services Limited Armoured Vehicles and Flexibility Crewing, South Australia Enterprise Agreement 2004, operative from today's' day and expiring on 31 December 2006. If the Commission pleases.

PN7

THE COMMISSIONER: Yes, thank you for that. Mr Wyatt, I have got a couple of issues in a moment but I will hear from Mr Klitscher first.

PN8

MR KLITSCHER: If the Commission pleases, sir I concur with my friend's submissions and have nothing further to add to his submissions except that this is an agreement in terms of identical terms of the previous agreement. It's simply a rollover and there are no variations to that agreement which sat before it. Sir, as I said, I support my friend's submissions and we seek also that the agreement be certified by the Commission this morning, so that the parties continue their association down the track for the next three years. If the Commission pleases.

PN9

THE COMMISSIONER: Thank you. Just a note that Mr Pearce's statutory declaration at 7.1 lists the 1978 award rather than 2004 award but I presume that is just an oversight.

PN10

MR WYATT: It's an oversight and should be the 2004 award.

PN11

THE COMMISSIONER: Yes, and just in passing Mr Wyatt, in terms of the previous matter clause 5 in here has got what I call a good set of objectives just apropos a discussion I was having with Mr Wyatt in regard to a previous matter. Appendix 2, point 1 wages and other agreed matters. Okay, 4 per cent increase year, 1 payable on signing, 4 per cent increase after 12 months. I suppose the issue is when, does that precisely operate from on signing. I would say that looking at the signature page, page 8 of 13 there, that would be 31 January. That is legally the way I would apply that 4 per cent increase, year one, payable on signing. When was it? You would look at the last signature, it was signed on
31 January; do you agree?

PN12

MR KLITSCHER: I think by administrative arrangement, sir the company is going to make the wages payable from 1 January 2005.

PN13

THE COMMISSIONER: That is fine but just saying from a - when we talk about date of signing and we have got three different dates of signing there, you would normally take the last date in terms of legal.

PN14

MR KLITSCHER: Take the last one.

PN15

THE COMMISSIONER: But you can pay from whenever you want before then, that is fine. All right that just leaves one issue in particular, clause 13, gentlemen, on page 6 "Further agreements and local matters" and I have had a good hard think about this, particularly 13(b);13(a) says:

PN16

The parties are at liberty to reach separate agreement with employees collectively about matters of concern at workplace level.

PN17

Yes, that is sort of like an enterprise flexibility clause. I do not have a problem with that:

PN18

Any agreements reached must be recorded in writing. The parties will ensure that such agreements do not contravene the no disadvantage test.

PN19

I take great comfort with that, the only trouble is that it is not the parties to determine. That is for the Commission to determine whether - and I cannot determine in advance whether something passes the no disadvantage test or not. But (b) it goes on to say:

PN20

In the event that it is proposed that a local workplace agreement, depart from or effectively vary a term of this agreement -

PN21

and those words are pretty strong:

PN22

depart from or effectively vary a term of this agreement. The union must be invited to participate in the discussions and become a party to any formal agreement reached. Any such formal agreement has no effect unless executed by Chubb's, General Manager and the union's branch secretary and if so executed -

PN23

and these are the words:

PN24

shall be deemed to be an enforceable part of this agreement without the need for a formal variation order by the Commission. However the parties shall submit a copy of each local workplace agreement to the Commission for its file.

PN25

In other words "Well, here it is Commission. Stick it on your file and make it enforceable even though we have not gone through the usual process". Gentlemen, I understand that awards, have enterprise flexibility clauses that you can do those things with but that is a different jurisdiction. In an agreement like this, for the Commission to approve an agreement under section 170LT, we have got to go through - we can only approve agreements if it satisfies those certain things. I actually think the way it is worded, clause 13 and 13(a) and 13(b), I think they are contrary to the Act. I do not want to be a nuisance or a pain with these things and it may have been approved in the past - I do not know if this has been in previous agreements.

It may have been but I think it is basically like saying, look, here is the agreement, Commission. You approve the agreement now because as it stands today it does not breach the no disadvantage test but we reserve the right during the course of this agreement to come up with any local agreements that, trust us, will meet the no-disadvantage test and we will just give you a copy of them and they will be effective and enforceable and you just stick them on your file. I do not think the Act, enables the Commission to take that sort of approach.

PN26

We may be able to overcome this with an undertaking and I have struggled with this and I cannot quite think of the form of an undertaking. We may be able to do that, the sort of issue that this can create in the future in the course of the agreement - there was a decision of Senior Deputy President O'Callaghan, on
4 August 2004 - and this is just one that I am aware of. This was in print 950445 in regard to the Corporation and the City of Whyalla Enterprise Agreement
No. 4 of 2002, and it is not quite exactly the same but in that case - and that actually involved a variation of a certified agreement on the grounds of ambiguity and it was a local government agreement and I understand in the local government area, and my industries are not in that area but I understand in that area there are lots of similar enterprise flexibility provisions in agreements and in that one there was a similar sort of provision to this and he said this paragraphs 33 and 34 of his decision in that matter, and I will just read it:

PN27

Section 170LT(2) -

PN28

and that is the section that talks about criteria for the Commission approving agreements:

PN29

establishes that an agreement must pass the no-disadvantage test as a pre-condition for certification. The extent to which clause 30.3 of the agreement in that cause authorises arrangements which may not meet the no disadvantage test represents a matter which might well have impacted on the certification of the agreement. There is nothing in the certification process itself which clarifies the parties' intentions in this respect so as to shed light on this uncertainty. I have noted that the process set out in clause 30.3 -

PN30

of the agreement that he had before him:

PN31

consists of a number of steps, the last of which necessitates and exchange of letters between the City and the relevant union. This provision of itself raises potential questions over the extent to which an agreement may provide for actions which are inconsistent with freedom of association divisions in the Act.

PN32

Well, that is not relevant either:

PN33

The agreement may not be consistent with the requirements of the Act, necessary for certification or it may be that reliance on the provisions of clause 30.3, may be flawed in that this may not be an enforceable provision of the agreement and hence the steps set out in this clause may not have enforceable application.

PN34

Unquote. I think what Senior Deputy President O' Callaghan was saying there was one of two things. Either the Commission can simply certify an agreement like this with a provision like this but on the proviso that you realise, gentlemen, clause 13 as it stands is probably not enforceable. That is one option or the second option is to say, no, we cannot approve this because clause 13 is contrary to the Act, because it assumes that whatever the parties might do to the agreement during the course of the agreement is going to be enforceable and we cannot determine that in advance, therefore the agreement should not have been certified in the first place.

PN35

So I think Senior Deputy President O'Callaghan is saying in his review of that agreement that if it was him, he probably would not have certified the agreement but there are those two options. Have a look at the decision, have a bit of a think about it. The way it stands at the moment, I look at that and I am just decidedly uncomfortable about it because I honestly do not believe I can, as it stands, certify the agreement with clause 13 in it. I think it is contrary to the Act, but I would like you to think about whether there is some sort of undertaking you can give that might fix the problem.

PN36

MR KLITSCHER: Sir, I think as a suggestion that might assist the parties, if my friend could perhaps tell us the history of this particular clause - obviously it has appeared in a previous agreement. Because I am sure the parties didn't mean - the intention wasn't to say, I will do some underhand stuff and we'll keep mum about it; we won't go to the Commission and we will just keep them informed and they will - I don't think that was the intention of the parties. What I think the intention was, and my friend will tell me if I'm wrong, there may be some issues which require the parties to reach agreement on during the life of this agreement; but what we'll do about that, as long as those agreements don't detract and cause any employee to lose any benefits in this agreement - I think that is what the intention is and I agree with you, it's very poorly worded.

PN37

I agree with you also, you can't usurp the Commission's powers in respect to variation of agreements. If there is a variation of the agreement, there is only one body who can approve that and that is the Commission. But I don't think that was the intention of the parties. I think the intention of the parties was to say, there may be some issues and we will keep the Commission informed if we have to, but the underlying condition is we can't apply any benefits to any employees that are less beneficial than this agreement.

PN38

THE COMMISSIONER: Yes, I understand that, yes, and I suspect that probably was the intention.

PN39

MR KLITSCHER: So it's probably a poor choice of words.

PN40

MR WYATT: If the Commission pleases, maybe a way forward would be that an undertaking be given from the union and the company saying that our intention is not to take the right away from the Commission. That if there are any of these things that do evolve, that they are put forward to the Commission for due process.

PN41

THE COMMISSIONER: I think something along those lines would be fine but it is just the wording that is there in 13(b) and about five lines down:

PN42

And the agreement if so executed shall be deemed to be an enforceable part of this agreement, without the need for a formal variation order by the Commission.

PN43

I say wow, I mean the Act, does not allow me to do that.

PN44

MR WYATT: Yes.

PN45

THE COMMISSIONER: I mean, even if I did certify the agreement and you were up before a magistrate or the Federal Court or something trying to enforce this and saying and we want to enforce this local agreement, your Honour, because that is what clause 13 - I think the judge would say, well, get out of here, I mean it is not enforceable.

PN46

MR WYATT: It shouldn't have been certified in the first place.

PN47

THE COMMISSIONER: And why was this certified in the first place, it is not enforceable. It is illegal. Even the last sentence of (b) says:

PN48

However the parties shall submit a copy of each local workplace agreement to the Commission for its file.

PN49

Almost as if to say, well, we'll include you Commission. We'll give you a copy you can stick on the file so that you know what the agreement's all about.

PN50

MR KLITSCHER: It's a done deal.

PN51

THE COMMISSIONER: Look, at the very least as Mr Klitscher said it is poorly worded. If the intention was that you have local agreements and because the union will be involved, you know I do not imagine that you are going to do things that are going to breach the no-disadvantage test but as I say ultimately it is for the Commission to decide. But if the intention was that you do those local agreements and they provide things that are no less favourable to employees than in the agreement or along the lines that Mr Klitscher said, I think we can overcome it with an undertaking.

PN52

What I would indicate to you is that subject to that only, I am happy with the agreement. It passes the no-disadvantage test in my view. All the other necessary bits and pieces as far as I am concerned are in order, in order for the Commission to approve the agreement. But I think we could have a look at that undertaking. If we could adjourn the matter on the basis that the parties will get a form of words together, a joint letter or whatever it is, put it in to the Commission and then I can just issue this administratively over the next few days. Does that sound all right?

PN53

MR WYATT: So you prefer that rather than undertakings on transcript?

PN54

THE COMMISSIONER: I think in this instance I would prefer a written undertaking, yes, because I would like a bit of thought to be given to it. I think you need to be just a bit careful how you - I mean, if you give an undertaking on transcript now it will be a bit convoluted and the words will not be pinned down. I think I would like to see a bit of thought given to it.

PN55

MR WYATT: I would never commit that fatal sin - - -

PN56

THE COMMISSIONER: No, you understand what I mean? I think I would like to see the parties think about the words.

PN57

MR WYATT: Sure.

PN58

THE COMMISSIONER: You can email or fax or whatever to my associate a copy of those words and I will approve the agreement and I am sure you can find some words and the papers will be issued in the next few days. All right?

PN59

MR WYATT: Thanks again.

PN60

THE COMMISSIONER: Can I indicate for the record that subject to that undertaking on that matter that we are talking about, I can indicate for the record that this is an application for certification of an agreement pursuant to section 170LJ. It is supported by statutory declarations from Robert John Pearce, SA Transport Manager, Chub Security Services Limited, the employer in this matter and John Allen, Federal Secretary of the Transport Workers' Union of Australia. Those declarations are in order. Having heard from the parties today in relation to having the agreement certified I can say at the outset that I am satisfied that all the substantive matters covered in the agreement properly pertain to the relations of the employer and the employees in their respective capacities as such, as required by section 170LI of the Act.

PN61

I have considered the agreement in the context of the Transport Workers' Armoured Vehicles Award 2004, and I find that it passes the no disadvantage test; subject, as I said, to my comments about clause 13. The agreement at clause 15 includes procedures for preventing and settling disputes between the parties. I am satisfied that a valid majority of persons employed at the time genuinely approved the agreement and in accordance with the Act, the explanation of the terms of the agreement took place in ways that were appropriate. Subject then only to that undertaking, the formal terms of which are to be worked out between the parties and provided to the Commission in regard to clause 13, the Commission certifies the Chub Securities Services Limited Armoured Vehicles and Flexible Crewing South Australia Enterprise Agreement 2004.

PN62

The date of certification will be today's date, 16 March 2005, and in accordance with clause 4 the agreement will be operative from 1 January 2005, and will remain in force until 31 December 2006; so for a period essentially of 2 years. The necessary documentation confirming certification will be forwarded to the parties in due course. That will include, as part of the certification document, the terms of the undertaking that you provide and so we can say today that I will approve it subject to that and subject to being satisfied by the undertaking.

PN63

But I am sure we can find something there that can fix it and perhaps that is something the parties can take on board for the future. Because as I say, I know that awards have these flexibility provisions in them but an award is a different sort of an instrument from an agreement. You can enable parties in a general sense to flex up the provisions of an award but when it comes to an agreement we have got some very specific provisions of the Act that need to be looked at.
Anyway, I will leave it with the parties and we will adjourn on that basis.

<ADJOURNED INDEFINITELY [10.26AM]