BP2006/3145, Transcript of Proceedings [2006] AIRCTrans 1005 (28 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15562-1

SENIOR DEPUTY PRESIDENT CARTWRIGHT

BP2006/3145

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
EDI RAIL PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3145)

SYDNEY

2.07PM, FRIDAY, 11 AUGUST 2006

Continued from 7/8/2006

Reserved for Decision

PN75

THE SENIOR DEPUTY PRESIDENT: Gentlemen, no change in appearances, certainly primary appearance. Since we were last together on Monday afternoon Mr Neilson has provided the information requested and this matter is listed as a result of Mr Franklin indicating that he wished to make further submissions. So, Mr Neilson, unless there's anything you want to say about the document I think Mr Franklin I'm in your hands.

PN76

MR FRANKLIN: If the Commission pleases. Your Honour, in our correspondence as you state, we made a request to have the matter listed, we asked for the re-listing after we read a copy of the letter Mr Neilson sent to our associate on 9 August. You may recall on Monday I said that I would wait before I had anything to say, wait until Mr Neilson had actually sent that letter.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, indeed.

PN78

MR FRANKLIN: At the proceedings on Monday you asked Mr Neilson to clarify what claims the union were making or advancing with respect to three specific items and I think you explained them this way and I think if we look at exhibit R2 which was the document, the proposed agreement as tabled by the AMWU, this might help us.

PN79

MR NEILSON: Your Honour, are we here to deal with submissions on the content of the letter or as Mr Franklin is seeking to traverse the evidential material that was previously led before your Honour? My understanding is that we are only here to deal with the letter and the contents of the letter and if my friend has some submissions to make on that he's perfectly entitled to do but we would certainly be objecting Mr Franklin making any further submissions on anything that has been led previously in the proceedings apart from the letter.

PN80

THE SENIOR DEPUTY PRESIDENT: Mr Franklin?

PN81

MR FRANKLIN: Your Honour - - -

PN82

THE SENIOR DEPUTY PRESIDENT: I understand that Mr Neilson but I'm not really sure where Mr Franklin is going at this stage so carry on.

PN83

MR FRANKLIN: Your Honour, the purpose of the letter was to clarify the claims in respect of those three items.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes.

PN85

MR FRANKLIN: Those three items are, the employee representatives' clause as proposed by the union, the termination of agreement clause which I have to say to you, your Honour, is actually the duration of the agreement clause, clause 3.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, that's what it was headed.

PN87

MR FRANKLIN: That's right. It was called termination, I think, on the transcript. It was actually the duration clause of the agreement and lastly the clause with respect to consultation on supplementary labour. I take Mr Neilson's point, I do not intend to go over old ground but I do intend to relate the letter to where we believe we're at and when I say, we, EDI Rail Pty Ltd, because the emphasis of the letter was supposed to be on clarification. I would also like to with respect to this short submission to discuss a recent decision of SDP Acton in respect of a similar matter and I'd also like to address the content of Mr Neilson's letter where he cites a case with French J presiding and I think in the introduction in the early part of his letter is actually says:

PN88

In our view we're not necessarily required to provide this information to yourself.

PN89

But obviously it did so and he quotes French J in the Wesfarmers decision that I'd like to address also. Mr Neilson in his letter talked about the necessity of the information and he said he probably did not believe that it was necessarily the case that they should have to provide it but have done so and he quoted that case. I just like to turn your attention to the case and just make a couple of comments about it. First of all you are in what I would call under this new legislation a somewhat difficult position in trying to reach a determination on these matters. If we take the lead from the Wesfarmers case and look at it, first of all it's pre Work Choices decision and as a pre Work Choices decision the provisions of the Act with respect to agreement making were somewhat different.

PN90

For instance, there wasn't legislation of prohibited content, for instance. There wasn't – in fact the whole agreement making process was completely different one would say in many, many ways including where there lodged as opposed to certification, content matters. Our position is quite simple and we ask you to consider this, French J, I think, in that decision talks about the initiation of the bargaining period and what is really required, the detail as required, the concept of the proposed agreement. From our point of view, we say, that unlike that decision people presiding in the Commission have to look at the detail when they are coming to terms with action, proposed action, with respect to, you know, the commencement of the protected action ballot process right through to the end.

PN91

It's absolutely impossible, I would have thought, for you to make an assessment on whether an agreement or whether people are genuinely trying to reach agreement without knowing the content of the clauses that they are actually trying to agree on and if we get to a situation where we are going to have generalisations made about the content of clauses, rather than look at the detail of them, I don't know how an assessment can be made on the basis of whether any content is prohibited or not. I think the position we're at with respect to this matter has compared to the Wesfarmers is that we are now at a stage where a union, the union in this matter, has actually put on the table a number of clauses which we discussed last week and I don't intend to go over them again and they are there in detail and that's been the issue.

PN92

The issue is that the company is not prepared to agree to them because the company believes they are prohibited. So I would say that the Wesfarmers Coal decision is not relevant to this issue because under the new law, under the regulations and under the provisions of the Workplace Relations Act there are completely different provisions that the Commission has to take into account when making an assessment about this order. I'd then like to turn my attention, your Honour, to the problems that we have with the letter. We do this because, well, I mean we're doing this because I think it is really important for all of us to try and help you through this process so you can actually make a decision. This must be the longest 48 hour turn around period in history at the moment but it's complex and it's not simple, I accept that.

PN93

Now, we don't believe that Mr Neilson's letter actually does clarify the claims and in fact in one particular with respect to the employee representative claim, I actually think that the letter is not talking about the so called clause 18 in R2. It's actually talking about another clause and that clause is – just bear with me, your Honour, and this is where the confusion arises with me. That clause is clause 5 which is called recognition of rights.

PN94

THE SENIOR DEPUTY PRESIDENT: Sorry, which document are you referring to?

PN95

MR FRANKLIN: That is R2.

PN96

THE SENIOR DEPUTY PRESIDENT: R2?

PN97

MR FRANKLIN: Yes, the one we wrote the handwritten date on, clause 5.

PN98

THE SENIOR DEPUTY PRESIDENT: Recognition of rights.

PN99

MR FRANKLIN: Yes. Because if you look at the content of the letter, well,
Mr Neilson's letter, it says:

PN100

This clause will be drafted to establish rights for employee representatives who are elected by employees bound by the agreement.

PN101

And clause 5 says:

PN102

The company recognises the rights of its employees to choose to or not to choose to be a member of a union that the company recognises the right of the union to represent its members who are the members' request representation.

PN103

And Mr Neilson's letter actually talks about that. They don't have to be a member of a union or they may choose to be. Also it says:

PN104

It's anticipated that the draft clause once negotiated will establish the rights for an individual to choose or not choose to be represented.

PN105

I think 5 goes down that track. There is another issue here that they can choose to be represented by an employee representative in the course of dispute settling and it will also afford them certain rights of consultation. Well, if you look at the third paragraph of clause 5, that's exactly what it does. Now, there's no argument about clause 5. I mean clause 5 has been accepted by the company. What we're bargaining about is clause 18 which is the employee representative clause which is not clause 5, it's clause 18, and I don't intend to read all that out again but that's what I thought was the purposes of, you know, the purpose of the letter was to try and clarify clause 18 and not clause 5.

PN106

So from our position the content of clause 18 has not been clarified and more importantly the clause still remains a foot. No-one has officially withdrawn from the clause, I mean the clause is still there and I mean and last week at the earlier proceedings I went through in detail the relevant sections of the regulations that I believe or the company believes are prohibited and I don't intend again, your Honour, to do that because I take the point that was made, I've made my submissions about that and we stand by the fact that elements of clause 18 as it currently stands are prohibited in a number of way.

PN107

THE SENIOR DEPUTY PRESIDENT: You're satisfied are you, that you've highlighted what it is that's prohibited about clause 18?

PN108

MR FRANKLIN: Well, I'm mindful of what my friend said too and I'm not trying to, you know, come with air and two bites at the proverbial cherry but I would like to say to say to you is that if I'll answer that question all I'll say is that it contravenes regulation 8.5.1(c) and (d) and (g) and regulation 8.7. Now, the other point I'd like to make, your Honour, is the caveats. When I read this and when I read Mr Neilson's letter, well it's consistent with his approach last week, I take – I accept that, but saying that the union does not intend to pursue anything through the negotiation of this proposed clause which would have an effect of impacting upon chapter 2, part 8, division 7.1 of the Workplace Relations regulations is one thing. To actually still have the content in there is another.

PN109

I'm not quite certain how the Office of the Employment Advocate would treat that. I mean, it's almost like a disclaimer. You know, we table it, we'll take a chance at it, but look the intention is that if we actually just prohibited it we didn't really mean to do it. Well, I'm not quite certain whether that's a defence for the company. I don't think it is because I can't find it in there that, in the regulations or the Act that it says that that's okay. Which leads me up to my last, well, another issue, and again I'd say that from our point of view we still believe that we are in a position where the clauses in contention, the ones that were supposedly clarified haven't changed and they're prohibited in our opinion.

PN110

We would refer you to a decision of SDP Acton which must have been being written actually while we were standing here last week, I thought, it's almost – I don't know whether it is fortuitous or not that that happened, I'm actually trying to work that out. But Acton SDP clearly articulated in her decision and cleared up that question that we debated here last week about whether this is an appropriate time to be making determinations about whether things are prohibited and whether a protected action ballot order should go ahead even if there may be some protected action content. Well, in her decision, SDP Acton, I think clarified it for all because she basically said in the decision between the AFMEPKIU the AMWU v Kemp in BP2006/2978 that where there is prohibited content in an agreement and that content has been pursued as part of the claim then she would not issue a protected action notice because basically it was what I said, I believe supported what I said last week and that is that it puts the company in an untenable position.

PN111

But the union is pressing a claim, that's prohibited in nature and happen in the company, it's almost impossible for the company to accept it because if they do and they lodge it with the Office of the Employment Advocate, and it's deemed as being reckless, then they company is liable. The penalty - and she - I wont read all this out your Honour because - - -

PN112

THE SENIOR DEPUTY PRESIDENT: Well you can take it that I've read it.

PN113

MR FRANKLIN: - - - you take it that people have read it I would have though and I think the relevant paragraphs are from 19-26. Now, the last point I'd like to make is this that, if I've misunderstood Mr Neilson's letter and if the union, particularly in respect of the employee representative clause, have changed their position, then again according to SDP Acton, I don't see how that can be regarded as generally trying to reach agreement either. Because, one would say that that claim has been pressed right up until - and I'm - this is interpretation of the letter, saying that the claim has changed significantly, the terms of that clause have changed. One can now say that if that is the case, that right up until
9 August 2008 the employee representative clause is being pressed by the union. Nothing has changed.

PN114

Now if they've withdrawn from that, that's another thing. But again, if you look at what SDP Acton said, you know the bargaining period in our case commenced in I think some time in May. We've been arguing about these three clauses, ever since that period of time and if the union now have changed their position, then that's not generally trying to reach agreement either. It's almost like you've got to start again. I think that's what she was leading to in her decision.

PN115

The last point that I would make Commissioner, sorry your Honour. The last point I wish to make is this, that the disclaimer itself in our opinion is almost like it's an admission that there might be prohibited content. The union might have adjusted their position. Like, we don't think this is prohibited, we've always said it's not, the company's always says it has, but what we'll do is we'll put a disclaimer in there now, just in case it might be. So I put it to you that the content of the letter is almost like an admission that some of the clauses are prohibited. They have now accepted that they might be prohibited content in those clauses.

PN116

Your Honour, in making these - this short submission and asking for the matter to be relisted, the major reason is basically that the company still believes that the letter doesn't clarify the position. The three clauses in question still have prohibited content and even if it's changed, if one looks at the authority now and the decision handed down by Acton SDP, she basically says that a parties not genuinely trying to reach agreement, even if they do withdraw the prohibited content. I mean almost five minutes before it's too late. If the Commission pleases.

PN117

THE SENIOR DEPUTY PRESIDENT: Mr Franklin, in saying that the letter doesn't clarify that the three clauses still have prohibited content, are you referring to the clauses in that 19 June document?

PN118

MR FRANKLIN: Yes.

PN119

THE SENIOR DEPUTY PRESIDENT: Or are you referring to the explanation of the clauses in the letter?

PN120

MR FRANKLIN: I'm referring to both actually. I mean what I'm saying is that the letter has either missed the point in respect of which clause, particularly clause 18, and is talking now about clause 5. The letter does discuss the other two clauses, maybe not under the correct heading of one of them but it is the duration clause. That's where were at. That's where the union are pushed that the agreement is to continue in operation after its nominal expiry date and ….. replace by it. Until it's replaced by another agreement. That's where that clause is.

PN121

THE SENIOR DEPUTY PRESIDENT: Well, you see that's why I asked about what was the claim on termination. I mean, there's no issue about, I would have thought, a duration date for the - - -

PN122

MR FRANKLIN: No, there's not.

PN123

THE SENIOR DEPUTY PRESIDENT: But it seemed to me that - - -

PN124

MR FRANKLIN: But there's - yes.

PN125

THE SENIOR DEPUTY PRESIDENT: I wanted clarification on what was the claim in relation to termination of the agreement.

PN126

MR FRANKLIN: The claim for termination – well, could I - - -

PN127

THE SENIOR DEPUTY PRESIDENT: And consequently I put it in those terms.

PN128

MR FRANKLIN: Yes, sure.

PN129

THE SENIOR DEPUTY PRESIDENT: Your submission has responded in those terms.

PN130

MR FRANKLIN: Yes.

PN131

THE SENIOR DEPUTY PRESIDENT: Where he says that what's proposed is a clause that would provide that the parties to the agreement will not take steps to terminate the agreement except by the replace of it with a new agreement.

PN132

MR FRANKLIN: Yes.

PN133

THE SENIOR DEPUTY PRESIDENT: Now, in making the submission you did before are you saying that in your submission such a clause would be prohibited content?

PN134

MR FRANKLIN: Yes.

PN135

THE SENIOR DEPUTY PRESIDENT: If so, why?

PN136

MR FRANKLIN: Because the regulations say the following – excuse me, your Honour. The regulations say - - -

PN137

THE SENIOR DEPUTY PRESIDENT: Yes. It's subparagraph (e) the renegotiation of a workplace agreement.

PN138

MR FRANKLIN: The renegotiation of a workplace agreement and that it says at the top:

PN139

A term of a workplace agreement is prohibited content to the extent that it deals with the following, the renegotiation of a workplace agreement.

PN140

In our opinion, having a clause that says:

PN141

The union is proposing a clause in the agreement that would provide that the parties to the agreement will not take steps to terminate the agreement except by the replacement of it with a new agreement.

PN142

Presupposes that we are going to negotiate a new agreement. There might be another instrument.

PN143

THE SENIOR DEPUTY PRESIDENT: Why does it presuppose?

PN144

MR FRANKLIN: Well, it says we can't terminate the agreement unless we replace it with a new agreement. It doesn't say - - -

PN145

THE SENIOR DEPUTY PRESIDENT: What types of workplace agreement can you have under the Act?

PN146

MR FRANKLIN: Well, first of all let me just – there's two separate issues here, isn't there. There's workplace agreements which can be union collective, employee collective or Australian workplace agreements. They're the three types. That clause doesn't say, convey, I mean, depending on the meaning, it doesn't talk about specify the nature of the agreement, it just talks about agreement. It does however say that there has got to be an agreement. It actually says you can't terminate the current workplace agreement unless it's replaced with a new agreement. We there are other forms of industrial instruments other than agreements and again if you go back to - - -

PN147

THE SENIOR DEPUTY PRESIDENT: What do you have in mind there?

PN148

MR FRANKLIN: I beg your pardon?

PN149

THE SENIOR DEPUTY PRESIDENT: What do you have in mind there?

PN150

MR FRANKLIN: You could just have a straight out common law contract. You could have just a letter based on the metal industry award for instance as it currently stands. I mean, I can't see how that's that much different to what SDP Acton said in her decision and when I read it originally, I read the clause that the AMWU had proposed there, it said – it was actually I would have thought tidier in a sense than the one that we're facing because it said the company will not have an industrial instrument or any other form of agreement which in an overall sense disadvantages the employees compared to the terms of this agreement. Then it went on to say for clarify this clause in no way inhibits the choice of industrial instrument or agreement.

PN151

Well, our clause does. Our clause basically says you got – if you want to terminate this agreement after the NED, it has got to be replaced, it will continue to operate until it's replaced by another agreement.

PN152

THE SENIOR DEPUTY PRESIDENT: In your submission that is - - -

PN153

MR FRANKLIN: That's very restricting because what it does is restrict us to agreement.

PN154

THE SENIOR DEPUTY PRESIDENT: Dealing with the renegotiation of a workplace agreement and a workplace agreement you say under the Act is - - -

PN155

MR FRANKLIN: Union collective, employee collective or AWA or Greenfield if there's no possibility, unless, you know, its just – I've left Greenfield out for obvious reason.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes, well, it's not going to be a Greenfield.

PN157

MR FRANKLIN: No, no. Not unless it's insignificant.

PN158

THE SENIOR DEPUTY PRESIDENT: In specifying those types of agreement, which part of the Act are you referring to?

PN159

MR FRANKLIN: Excuse me. The making of agreements, I'll just have to get the section, I'm not - 326, I think. Mr Neilson's just helped me. Was it 326?

PN160

MR NEILSON: It's part of division - - -

PN161

MR FRANKLIN: Yes, types of workplace agreements, 326. Australian workplace agreements, employee collective, union collective, union and Greenfield, employer Greenfield, multiple business. Well, I mean, from our point of view it would be restricted to possibly three. Well, sorry, AWAs, employee collective or union collective.

PN162

THE SENIOR DEPUTY PRESIDENT: That means, in your submission that the clause deals with renegotiation of a workplace agreement.

PN163

MR FRANKLIN: That's right. Well, it just seems logical to me that the whole concept is the maintaining of status of the then expired workplace agreement until its replaced by another workplace agreement. I mean, I must say, your Honour, I can't envisage the AMWU supporting a form of un-lodged, un-cert, well, not certified but un-lodged instruments of employment.

PN164

THE SENIOR DEPUTY PRESIDENT: What are the options under the Act for terminating an agreement?

PN165

MR FRANKLIN: Well, that was something that we have responded in detail to the AMWU and the delegates. The options under the Act are fairly straight forward. You can continue to operate or a party can give either party, can give 90 days notice just going to terminate the agreement and then of course if that termination goes through it will revert to a combination I suppose of the AFP and C standard and some protected award conditions. Having said that this is still interesting new stuff I suppose. The other thing about it is this that one of the most important issues of the whole lot is it doesn't matter. You can have a term in a workplace agreement about termination but the Act overrides it. The Act specifically says, that irrespective of any term in a workplace agreement about termination the Act provides.

PN166

So I tried to – I put that position to my client when they were responding to the union saying what is the point of this because none of us is bound by it other than honour. I mean, I suppose is a way, the only way because legally, irrespective of what's in the agreement we could just walk away from it, either party could walk away and provide the notice and terminate. The other issue is this, so it becomes almost an exercise in futility. The other issue is this, that the Act also provides that the time for providing a notice of termination if the employer sees fit he can make a declaration or the employer could make a declaration about the terms and conditions of employment that will continue to apply once the notice period – once the agreement has been terminated and again I provided that information and advice to my client. So that's what it basically says about termination.

PN167

THE SENIOR DEPUTY PRESIDENT: Under section 347.

PN168

MR FRANKLIN: 347.

PN169

THE SENIOR DEPUTY PRESIDENT: Subsection (5).

PN170

MR FRANKLIN: 347(5):

PN171

THE SENIOR DEPUTY PRESIDENT:

PN172

A collective agreement ceased to be in operation in relation to an employee if it is (a), passed its nominal expiry date and (b), been replaced by another collective agreement in relation to that employee.

PN173

MR FRANKLIN: Sure.

PN174

THE SENIOR DEPUTY PRESIDENT: It could be argued that the type of clause that Mr Neilson's outlined in his letter does no more than what the Act provides for in 347(5), couldn't it? In other words that's one way that an agreement can be terminated.

PN175

MR FRANKLIN: Yes. I take that point, I mean, it sort of goes around saying doesn't it, I mean, what happens is you get the collective agreement past its nominal expiry date, the new one is negotiated and replaces it but that's not the only way. I mean, your Honour, I don't accept that that is the rationale behind that clause. The rationale behind that clause is to keep in place the conditions of employment as they currently exist until a new agreement is negotiated. Now, it really is a clause in our opinion that tries to prevent us from terminating and using that provision of the Act to I suppose exercise leverage, you know, in a bargaining situation for instance. I mean, the company's never done it I don't think in its history. I don't think it's ever terminated an agreement but there is concern out there.

PN176

There's concern because of the new provisions. Under the old Act as you know you couldn't unilaterally make, file a notice to say 90 days we're walking away from this and, you know, too bad. I mean, there was a whole public interest test. There was a – it was a huge exercise and I don't think it ever happened very often but here what is happening is its almost like an insurance policy, you know, to make sure that we don't exercise our rights, the company's rights, in terms of termination. And again, it is a term of agreement about the replacement of it and the negotiation of it. I mean it presupposes it.

PN177

THE SENIOR DEPUTY PRESIDENT: Anything further, Mr Franklin?

PN178

MR FRANKLIN: Your Honour, the only point is that we've already made our submissions in respect of the supplementary labour clause and I don't intend to repeat them again.

PN179

THE SENIOR DEPUTY PRESIDENT: Yes.

PN180

MR FRANKLIN: If your Honour pleases.

PN181

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Neilson?

PN182

MR NEILSON: Thank you, your Honour. Can I perhaps start of by dealing with the criticisms that my friend sought to go to with respect to our citation of French J in the Wesfarmers decisions. My friend conveniently failed to mention but he also cited the decision of Commissioner Gay in Amcor Packaging. The reason that we cited those two decisions is to directly rebut the proposition that had been advanced by my friend earlier in the proceedings and also sought to be advanced today that before applying for a protected action ballot order that the union must effectively provide a complete agreement to the other side for its consideration.

PN183

My friend has criticised the union for not providing sufficient detail so as to enable it to consider its position. Well, we reject that, your Honour, and we say the evidence doesn't support such a view. That submission essentially was the same as one dealt with by Commissioner Gay in Amcor and it was rejected and we cite at paragraph 48 and I don't need to go through that in any particular detail but the Commissioner states in part:

PN184

It is important in my view for the Commission in considering a protected action ballot application to resist the position contended for by Amcor which would require industrial parties such as these who are beyond the threshold state of their negotiations and are genuinely trying to reach agreement to have reached a particular stage of advancement in their efforts, have agreement making or have arrived at a state of impasse as a condition precedent.

PN185

We say that that - or those comments of the Commissioner in that particular decision deal with that submission and it's been a submission that has been repeatedly rejected by this Commission in the proceedings thus far because it's a submission that fails to take into account the nature of negotiations. In any enterprise agreement negotiation there is a position put, it is either rejected or accepted by the company and then there is negotiation about the particular words that will apply to reflect the agreement and the understanding of the particular parties.

PN186

For instance a union might say that, well we want four per cent per year of the agreement. The company might say, well we're prepared to offer four per cent per year but we would prefer to structure it over two per cent increments at six monthly intervals and that is reflected at how negotiations take place. There is a claim put. There is a position responded by the employer and the parties negotiate eventually to reach agreement on the exact form of the clause. There is no warrant in the Act and in the requirements for there to be a genuinely trying to reach agreement that would state that the union must particularise each and every clause that it in fact seeks in the proposed agreement.

PN187

To do so would, in the words of Commissioner Gay, place an undue restraint on the actual operation of the Act and would certainly defeat its intent and the reason that we cited French J in Wesfarmers was that his Honour in that decision dealt with the words, proposed agreement, and those words are akin effectively to what my friend is seeking to submit in these proceedings that any proposed agreement that is being negotiated by the parties must be in a full manner and that submission was rejected by his Honour in that particular decision. The company has in its criticisms of the union in these proceedings sought to suggest that it's still confused with respect to those claims that are on foot between the parties and remain outstanding. Well, that is a position that we fundamentally reject.

PN188

We were invited and asked by the Commission on Monday of this week to provide to it clarification of three clauses. They were employee representatives, termination of the agreement and consultation on something that's ….. We have done that and we don't see how on the plain reading of the letter there could be any room for confusion in the mind of the company apart from the case that they are seeking create a bit of mischief so as to effectively deny the union it's right to make an application for a protected action ballot order.

PN189

The manner in which the Commission must consider applications such as these is relevant to these proceedings insofar in determining a protected action ballot order the Commission has been instructed by the legislature to regard the provisions in section 461 and related provisions as being facilitated to achieve a ballot not prohibitive so as to deny a ballot from taking place and the legislature in the explanatory memorandum as its being referred to in a number of decisions of the Commission makes plain of that instruction with the respect to the Commission's application of these particular provisions.

PN190

Certainly, the submissions that have been advanced by my friend on this point would be prohibitive of the union seeking the proposed ballot order and we say that's not a submission that should be rewarded by the Commission. Dealing with the criticisms that my friend made with respect to the letter whether or not it is fact prohibited content. He made a submission that earlier in his closing submissions in the proceedings that he had referred to and I paraphrase here the various provisions that are prohibited in the proposed agreement and also the various provisions within the regulations that he say match those particular provisions.

PN191

Those submissions, we say, were not put in his closing submissions. At no time did he go to the particular provisions in the regulations to demonstrate to the Commission which particular clause offended which particular regulation. Your Honour will recall that my friend made a lot of the fact that he had advice that these provisions were in fact prohibited. No such advice was tendered to this Commission and again all we are effectively being asked to do is effect if we accept the word of Mr Franklin and EDI Rail that the clauses are in fact prohibited. We say that that and the referral and the consistent referral to exhibit R2 fundamentally misunderstands how in fact that didn't negotiations ever advance.

PN192

It was the evidence of Mr Murphy and in fact Mr Martin that R2 had been replaced by R3. The claims in R2 have now been replaced by R3 which was the document headed, EDI Rail Pty Ltd with the EDI log. That was a document that was prepared by EDI itself and we say that the letter of 9 August compliments that particular document being exhibit R3. R2 is no longer relevant to the proceedings in our view. Your Honour, perhaps if I could address the – keeping in mind my submissions about my friend failing to do so, the specific regulations that my friend observes has in fact been offended by the letter of 9 August 2006. The first clause is employee representatives - - -

PN193

THE SENIOR DEPUTY PRESIDENT: Can I just – just checking my recollection of Mr Murphy's evidence against what you said, he did also say that at the conclusion of his evidence when he was talking about, well what are the claims that are still on foot, he did say and he went through, I think, someone called them core claims but, you know, they're about the real nitty gritty of wages and annual leave and so. He did indicate that in addition to those the unresolved claims in the older document were still on foot. They were highlighted because they hadn't yet been resolved and it was those sorts of things that caused me to ask for clarification and say, well exactly what claims are still on foot. So, I mean,
Mr Murphy's evidence really wasn't conclusive on what the actual claims were.

PN194

MR NEILSON: Sure. We say nevertheless, your Honour, that as a result of that clarification that is being sought and we don't necessarily accept that anything in that particular document is in fact prohibited and I think we've made that plain but nevertheless I understand what your Honour's saying with respect to that. But your Honour, we say that as a result of the clarification your Honour can be assured by the contents of 9 August letter and it is only clarification, it is not a new claim. We accept that employee representatives, the duration of the agreement and consultation on supplementary labour has been a claim and it has been a claim advanced to the company. It's not a claim that has been introduced as new on 9 August. It has been previously put to the company and it has been rejected by the company but we don't resile away from those particular issues as being pursued but your Honour sought clarification and that's exactly what he had to provide.

PN195

THE SENIOR DEPUTY PRESIDENT: Yes. It was clear that those were claims. It was, well, what was the content of them that's bothering me.

PN196

MR NEILSON: Yes, and this is hopefully clarification of the content.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes.

PN198

MR NEILSON: Your Honour, the first clause that we deal with is employee representatives. My friend apart from criticising the clause as being genuinely prohibited did not refer to a particular provision of the regulations whereby this particular clause as it's generally referred to on 9 August letter is in fact prohibited. You will see, your Honour, that the clause in broad terms detailed on 9 August letter will establish rights for employees, representatives, don't have to be union members. There is no mandatory requirement that they in fact be union members or non union members. So much so is consistent, we say, with the freedom of association provisions of the Act.

PN199

There is no mandated role for employee representatives in the negotiation, sorry, or in the representation of employees in the dispute settlement procedure so much so is consistent with regulation 8.5 of 1(f) which prohibits the mandatory representation of certain employees in dispute settlement roles and there is nothing in there which relates to anything we say that could be prohibited. It is common practice for parties to negotiate agreements that recognise that employees have a right of representation. That right is of course now limited by the prohibited content matters and there is nothing we say implores in regulation 8.5 that deals with anything that would offend the employ representatives clause and again we note that my friend has in fact not referred to any particular provision that is in fact offended.

PN200

Dealing with the termination of the agreement or duration of the agreement as it is referred to the criticism that was made there and it was one of the direct criticisms made was that it offended regulation 8.5.1(e) relating to renegotiation of a workplace agreement. My friend was careful in his submission on this particular point because he didn't necessarily say that the clause mandates renegotiation. He said that I think to paraphrase effectively the clause infers renegotiation because it prevents the company from terminating - - -

PN201

THE SENIOR DEPUTY PRESIDENT: I think the word used was presupposed.

PN202

MR NEILSON: Presupposed renegotiation. We say there is absolutely no reason for the employer to draw that view or in the fact the Commission to draw that view from the wording of the clause or the proposed clause. There is absolutely nothing in there that would require the employer to renegotiate an agreement with the union. The employer could simply say that we choose not to renegotiate an agreement with the union and there would be nothing in that clause that would mandate that they in fact renegotiate. So we say we struggle to see how it in fact offends the provisions with respect to renegotiation and your Honour's view – and whilst on this point, your Honour, it refers to agreement, it does not refer to a collective agreement be it either an employee agreement or a union collective agreement and therefore it cannot be said to offend the provisions with respect to the offering of Australian workplace agreements.

PN203

Your Honour, in response to a question from yourself was taken to the provisions dealing with the definitions of workplace agreements and that encapsulates we say Australian workplace agreements. So in our view - - -

PN204

THE SENIOR DEPUTY PRESIDENT: I don't think anyone has made the suggestion that this is an anti AWA clause.

PN205

MR NEILSON: Perhaps if it could be suggested and I think I'll come – I think was her Honour SDP Acton's criticism of perhaps the party, that's why I deal with it.

PN206

THE SENIOR DEPUTY PRESIDENT: But it does, I mean, looking at 8.5.1(e) the prohibited content is a term of a workplace agreement and presumably this is to be a workplace agreement, is prohibited content to the extent it deals with the renegotiation of a workplace agreement. Wouldn't this be, and I take your point about it's not specified what type of workplace agreement in any way here, but it would be a workplace agreement, wouldn't it?

PN207

MR NEILSON: Well, your Honour, the - - -

PN208

THE SENIOR DEPUTY PRESIDENT: Because you see it's only going to be terminated by the replacement of it with a new agreement so it's a workplace agreement.

PN209

MR NEILSON: But, your Honour, there's nothing in the clause that mandates the renegotiation of an agreement.

PN210

THE SENIOR DEPUTY PRESIDENT: But how is it going to get there?

PN211

MR NEILSON: Well, your Honour, if the employer simply says we refuse to negotiate then that particularly the old particular agreement continues on foot. There is no mandated role or responsibility of the employer to renegotiate that particular agreement so much so is clear we say from the terms of the clause. Regulation 8.5 is clear insofar as it only prescribes a clause with respect to the renegotiation of a workplace agreement.

PN212

THE SENIOR DEPUTY PRESIDENT: But that would mean that this agreement is going to continue on until a new one is negotiated, wouldn't it?

PN213

MR NEILSON: Perhaps, your Honour.

PN214

THE SENIOR DEPUTY PRESIDENT: Wouldn't that offend the 8.5.1(e)?

PN215

MR NEILSON: Not necessarily, your Honour. We don't accept that it does because there is no mandated onus on the employer to renegotiate.

PN216

THE SENIOR DEPUTY PRESIDENT: Other than this agreement continues on.

PN217

MR NEILSON: There is actually – other than the agreement continues on as in accordance with the relevant provisions of the Act, the Act that your Honour referred to with respect to clause 347.

PN218

THE SENIOR DEPUTY PRESIDENT: Yes.

PN219

MR NEILSON: My friend referred to the fact that this agreement can in fact be terminated on 90 days notice. He also neglected to refer to the fact that the agreements can make reference to how they are in fact to be terminated.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes, indeed.

PN221

MR NEILSON: Certainly, your Honour, this is effectively a clause dealing with that, how it is to be terminated and the Act provides for such arrangements to be contained within agreements.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes it does and consequently, well, I think we referred – I've forgotten what section it was that I took you to before
but - - -

PN223

MR NEILSON: It talks about it being replaced by another collective agreement.

PN224

THE SENIOR DEPUTY PRESIDENT: Yes.

PN225

MR NEILSON: Your Honour, we're not saying that this - - -

PN226

THE SENIOR DEPUTY PRESIDENT: I must say, Mr Neilson, I think, I do see this one as problematical. I mean, I know it can be argued different ways on the actual wording but isn't the practical effect that the only way this agreement can be terminated is by the renegotiation of a new one?

PN227

MR NEILSON: But, your Honour, that's not a requirement for there to be a renegotiation. The mere fact that the agreement can only be terminated by its replacement with another agreement is not a requirement of the renegotiation. The employer does not have to renegotiate at all. There is no mandatory requirement for there to be renegotiations and that is the only part that is prohibited by the Act and we say that clearly the Act's contemplation that there will be in agreements provisions dealing with their termination clearly indicates the legislative intention that the parties could deal with in agreements measures to terminate them and we say that that's all that that clause deals with.

PN228

The employer, yes, is entitled to say we don't wish to renegotiate with you and that clause does not impose any obligation upon them to renegotiate in any way whatsoever.

PN229

THE SENIOR DEPUTY PRESIDENT: It takes away other options available under the Act for terminating the agreement, doesn't it?

PN230

MR NEILSON: Only in so far as it utilises other provisions of the Act.

PN231

THE SENIOR DEPUTY PRESIDENT: Yes.

PN232

MR NEILSON: To terminate them. So if the parties or the union just decided to pursue one particular element of termination as opposed to another, the employer has chosen to rely upon the 90 day termination provision as opposed to the unilateral determination provision clauses. But, your Honour, we say that and I don't want to harp on this point but it is only a clause with respect to a renegotiation and we say that there is nothing in that clause that requires renegotiation.

PN233

THE SENIOR DEPUTY PRESIDENT: As you know, Mr Neilson, I tend to be a practical man.

PN234

MR NEILSON: Your Honour, on that point I understand what your - - -

PN235

THE SENIOR DEPUTY PRESIDENT: Based on practical experience.

PN236

MR NEILSON: I understand what your Honour is saying but of course your Honour can only read the words as they appear.

PN237

THE SENIOR DEPUTY PRESIDENT: Indeed.

PN238

MR NEILSON: And not inferring to them other motives and we say the words are quite clear on this point.

PN239

THE SENIOR DEPUTY PRESIDENT: Yes, but I didn't come down in the last shower either.

PN240

MR NEILSON: The law is very settled on that point, your Honour. We'll perhaps move on, accepting what your Honour is saying. But I appreciate your Honour's view point but we don't accept it.

PN241

THE SENIOR DEPUTY PRESIDENT: Well, it's not a view point at this stage, it's a question on my mind.

PN242

MR NEILSON: Sure.

PN243

THE SENIOR DEPUTY PRESIDENT: I indicate to you that I am bothered a bit by that one.

PN244

MR NEILSON: Obviously that's something your Honour will deal with in your ultimate decision, suffice to say that we obviously don't accept that there is any offending provisions. On its clear wording we would say that it should be applied as such. Your Honour, just dealing with the last clause, there's a clause sought on consultation when the employer engages supplementary labour. We noted in the letter that consultation is not in fact a veto. It's never been held to a veto by the Commission. The clause does not require consultation to the prior to the engagement of contractors so it cannot be said that there is a restriction on their engagement.

PN245

Certainly, again, your Honour, my friend has referred to no particular provisions that may be offended. The only provisions in the Workplace Relations Regulations that may have some application as in 8.5.1(h), which requires that there be restrictions on the engagement of independent contractors. Well, we say that's addressed by the fact that consultation is not a prerequisite for their engagement and there be requirements relating to their conditions of engagement but there is certainly nothing in the clause relating to how their to be employed and under what terms. So, certainly we say, your Honour, that doesn't offend the provisions of the Workplace Relations Regulations.

PN246

Your Honour, can I just briefly deal with the decisions of SDP Acton in the Kemp decision that my friend referred to. Now, we don't necessarily accept that that Kemp decision is correct but we acknowledge that it's a decision that's been made and your Honour will ultimately determine whether it has applicability to these proceedings, but we previously made submissions on whether your Honour needed to be satisfied about prohibited content at this stage and we continue to rely on that. Your Honour, the Kemp decision we say can be distinguished from this particular application insofar as that in the Kemp decision her Honour was positively satisfied that the union had in fact been pursuing prohibited content and was positively satisfied on the basis of not a new reference but on the basis of the actual evidence of the union itself.

PN247

In her decision her Honour referred to the evidence-in-chief of the AMWU organiser, I'm sorry the evidence in cross-examination of the AMWU organiser, where words were attributed to him whereby he said so effectively what you're trying to do is restrict the use of Australian workplace agreements and the organiser effectively agreed with that question that was put to him in cross-examination. Her Honour went on to find that it was clear that the union had in fact been pursuing prohibited content. Well, we say that the Commission cannot be so satisfied on the material before it that it is clear that we are in fact pursuing prohibited content.

PN248

Her Honour had dealt with the issue of whether or not that prohibited a claim for prohibited content could be withdrawn at effectively the proceeding stage and she rejected that submission on the basis that it had been done earlier, there had to be some negotiations and then the parties had to come back for consideration. We say that leaving aside our submissions on whether or not we have in fact been pursuing prohibited content even if the Commission were to find that we had in fact been pursuing prohibited content, the matter has not been the case since. Effectively the R2 document was in fact tendered by the company and subsequently replaced by the R3 document which, sorry, the R2 document by the union and the R3 document by the company.

PN249

THE SENIOR DEPUTY PRESIDENT: Yes.

PN250

MR NEILSON: The R3 document has been the basis of the negotiations up to date with the exception of the three matters that your Honour sought clarification on and certainly we submit that the Kemp decision does not necessarily have impact upon that particular question in these proceedings.

PN251

THE SENIOR DEPUTY PRESIDENT: The interesting thing, Mr Neilson, is that its clear that the original, from reading the transcript, the original log of claims did contain an item that would be prohibited content. That was paid quarterly union meetings but it was not established in evidence what was the date of that claim and whether in fact that claim, that log of claims had been made after 27 March.

PN252

MR NEILSON: That's correct, sir.

PN253

THE SENIOR DEPUTY PRESIDENT: So prior to 27 March such a claim could have been made after that making such a claim would have been prohibited content and in fact it would have been an offence.

PN254

MR NEILSON: That's correct, your Honour. That document was the subject of objection by the union on the basis that the document was not dated.

PN255

THE SENIOR DEPUTY PRESIDENT: Well, it's not in evidence.

PN256

MR NEILSON: That's correct, your Honour, and there's no evidence to
suggest - - -

PN257

THE SENIOR DEPUTY PRESIDENT: And the date is not established.

PN258

MR NEILSON: There's no evidence to suggest and I don't think my friend suggests that that claim is being pursued by the union. There is no evidence to suggest that it has.

PN259

THE SENIOR DEPUTY PRESIDENT: Yes.

PN260

MR NEILSON: The log of claims we say were what Mr Murphy referred to in questioning directed from yourself, your Honour, related to the issues dealing with wages and - - -

PN261

THE SENIOR DEPUTY PRESIDENT: I mean, had that been a claim that was made after 27 March it probably would have been prohibited content, wouldn't it?

PN262

MR NEILSON: Yes.

PN263

THE SENIOR DEPUTY PRESIDENT: Yes.

PN264

MR NEILSON: It dealt with paid union meetings, your Honour.

PN265

THE SENIOR DEPUTY PRESIDENT: Yes.

PN266

MR NEILSON: And that's clearly prohibited by the regulations but your Honour I'm certain there's no evidence about the fact that we're pursuing that. Yes, I have no further submissions, thank you, your Honour.

PN267

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, gentlemen, thank you for your assistance this afternoon. I gather there's nothing. We're all finished and done. The appropriate course is for the Commission to reserve a decision and adjourn but I indicate that conscious of the time frame of the Act I don't intend to – certainly it's my aspiration that this matter won't go unresolved much longer so I do thank you for your assistance and adjourn.

<ADJOURNED INDEFINITELY [3.06PM]