AG2005/3628, Transcript of Proceedings [2005] AIRCTrans 926 (18 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11156-1

SENIOR DEPUTY PRESIDENT HARRISON

AG2005/3628

APPLICATION BY LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION-AUSTRALIAN CAPITAL TERRITORY BRANCH & REFLECTIONS GROUP SERVICES
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3628)

SYDNEY

10.04AM, THURSDAY, 07 APRIL 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: There are no appearances here in Sydney. May I have appearances in Canberra?

PN2

MS L RYAN: I appear for the Liquor, Hospitality and Miscellaneous Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Ms Ryan. I am happy for you to remain seated when making any submissions this morning. I note there is no appearance for or on behalf of the employer, but I do note that I have on the file a statutory declaration of Royce Gallea, the New South Wales manager of the employer, and I will take that matter into account - take the matters contained within that statutory declaration into account. Ms Ryan?

PN4

MS RYAN: Thank you, your Honour. We seek the certification of the agreement before you today and do rely on the statutory declarations that were filed both by the employer and ourselves, and if I could just take you through that statutory declarations very quickly. The agreement is made about matters pertaining to the relationship of the employees in the ACT and therefore are about matters pertaining to a single business in the ACT, in the territory. The LHMU has a number of members who are employed by this organisation. We are entitled to represent their interest. The agreement was endorsed unanimously by the employees who are covered by it. On the 15 February a notice was sent out with payslips indicating to the employees the intention of the parties to certify the agreement subject to a vote.

PN5

Meetings were held at sites and at shift times it would suit employees in the locations in Canberra, and we took particular care to ensure that persons from
non English speaking backgrounds were communicated with in an appropriate way to ensure that everyone understood the terms of the agreement. And as I have said, your Honour, there were a number of meetings held in small groups to allow questions to be taken and so on. The underpinning award is the Cleaning Building and Property Services ACT Award and no terms - there has been no changes to the actual terms of the award. There is actually no reduction in the terms of the relevant award. The agreement contains a dispute settlement procedure at clause 18 and that gives the Commission the power to settle all matters in dispute by conciliation and if necessary, arbitration.

PN6

We are seeking that this agreement stay in force from three years from the date of certification and that requirement is contained at clause 7 of the agreement, and we believe that we have done everything that is necessary in order to have this agreement certified with effect today and we would ask the Commission do so.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Now, there might be a time point in relation to the filing, Ms Ryan, that I may need to attend to. I think the agreement was approved on 4 March but not filed until, I think my date stamp reflects 31 March. Yes, I think it is, so that seems to be outside the 21 day time limit for filing. I assume you would have, of course, no difficulty with my extending time until the date it was in fact filed?

PN8

MS RYAN: We would be very pleased, your Honour. There were some difficulties in getting signatories back from New South Wales and that is what caused the delay.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Even though the employer is not represented I will make - I assume that they would have no objection to the extension of time, and the time for filing this application is extended until 31 March 2005. Ms Ryan, I have a difficulty with one clause in the agreement and that is the subcontracting clause, clause 9. That clause amongst other things, identifies certain circumstances where work can't be done by direct employees and there is a necessity for subcontractors to be utilised. In those circumstances the clause requires the employer to hold discussions with the union to gain agreement on the work to be subcontracted and the duration.

PN10

This is always a issue about the degree to which such a clause might, on the one hand be able to regulate the terms upon which contractors are retained or on the other hand, might be a clause that goes to constraining an employer from using subcontractors without the approval of the union. On balance I think this clause might fall on the wrong side of those considerations, Ms Ryan. I have a difficulty of course not having the employer here today to seek to persuade me that that view I have expressed to you might not be sound, and that indeed I should be persuaded the clause falls on the right side. But it is a matter of some importance and I would be aided by you, Ms Ryan and the representative of the employer giving consideration to it.

PN11

I see as recently as - I see that this agreement was voted upon shortly prior to the decision of the Full Bench in the Schefenacker decision which was handed down on the 18 March, that to my knowledge is the last occasion a Full Bench in this Commission has revisited the considerations relevant to subcontractor clauses in enterprise bargaining agreements. What do you want to do in light of those observations, Ms Ryan?

PN12

MS RYAN: What I would like to do is actually seek some further advice from our national office. I would like to perhaps re-word the clause, in that I think we would be prepared to accept a situation where simply we were informed of the
subcontracting arrangements rather than there was a requirement for us to have an actual agreement about that. And if that would then put it on the right side, I suppose, in terms of subcontracting clauses, that would be something that we would be happy to do.

PN13

THE SENIOR DEPUTY PRESIDENT: I think you could assume in my opinion it would. Clearly thereafter discussions with the union, to inform the union the sites and manner in which such subcontractors are to be used are all on the right side. I think it is just this difficult judgment about the extent to which there is an imposition upon the employer in retaining them at all as opposed to having an input and knowledge of the terms upon which they have been retained and, given of course, what this is all about is as your clause says, it is all about protecting the job security of the direct employees. So I don't think anyone has any doubt at all about what is the motivation for these clauses.

PN14

Well look, I think I might need just to leave it with you, Ms Ryan. I will have the transcript of this exchange prepared and brought to the attention of the employer as well but I wonder if you would be good enough to alert them to this issue that I raised.

PN15

MS RYAN: Certainly and I would be very happy to. I also would like to seek some advice. In the event the employers and ourselves are able to re-word the clause so that it actually becomes permissible, is it a requirement then to re-vote?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MS RYAN: Thank you.

PN18

THE SENIOR DEPUTY PRESIDENT: I know there has been some diversity of views within the Commission. I think Schefenacker has put that completely at rest. Other than something that I would call a minor or a housekeeping matter, I think anything more significant, the answer is yes.

PN19

MS RYAN: Thank you, your Honour. I am a little bit concerned that it will cause some confusion given the groups of workers that we are dealing with.

PN20

THE SENIOR DEPUTY PRESIDENT: I completely understand. You are no orphan in the unfortunate consequences of having a clause in a enterprise bargaining agreement that may not pertain, but by all means, if there is some other suggestion that you and the employer may agree upon that you think will be able to speedily bring this matter back before me and certify it, contact my chambers and let me know, but I think that a reading of that most recent Full Bench decision may well give - constrain the opportunities that there might be to take the fast route to bring this back to me. But by all means contact my chambers about it, Ms Ryan.

PN21

MS RYAN: Thank you, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

<ADJOURNED INDEFINITELY [10.15AM]