AG2005/8314, Transcript of Proceedings [2006] AIRCTrans 171 (13 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14081-1

COMMISSIONER RICHARDS

AG2005/8314

APPLICATION BY TOP END GROUP TRAINING PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/8314)

DARWIN

11.59AM, MONDAY, 30 JANUARY 2006

PN1

MR R BLOHM: I appear on behalf of Top End Group Training. With me I have two employees of Top End Group Training MS D OSBOURNE and
MR D SHEAN.

PN2

THE COMMISSIONER: Thank you. Mr Blohm, the only reason I’ve called this for hearing is that I really do need to sort out one issue with you about the agreement, I have no other concerns in relation to the agreement bar this one, but it is important. I would also like to speak with the employee representatives about this matter to give it greater context and specificity for me. And that is the Act requires that section 170LK thereof that when an agreement is - when a notice is issued for purposes of making an agreement under section 170LK the section 170LK(4) requires that the notice that is issued at 170LK(2) must include a direction if you like to employees that they are able to be represented for purposes of any - for meeting conferring with the employer in relation to making the agreement by the union that has constitutional coverage of that enterprise.

PN3

But by your own admission in your statutory declaration if I recall, no notice under section 170LK was issued in the context of the notice that was issued at 170LK(2). I think you mentioned that in your statutory declaration. At paragraph 5.6 the question is:

PN4

Did the notice given by the employer of intention to make the agreement state that if any person is employed will be ...(reads)... request the organisation to represent the person in a meeting conferring with the employer about the agreement.

PN5

In respect of that question you answered no but then made some other qualified comments after it.

PN6

There are a large number of - well perhaps large is an exaggeration but there are a number of decisions of the Commission dealing with this issue where employers have omitted the requirement at section 170LK(2) and 170LK(4) of the Act. If I can put it in perhaps unsubtle terms, the outcome of the Full Bench that have considered these issues, appears to me to be that the matter fall to the Commission at first instance to consider all the context in the - to consider the context in all the circumstances and reach a view as a matter of judgement as to whether or not the Acts provisions were given appropriate purpose. That in my view is the direction which falls upon the Commission, that certification now. In that context I note a number of ancillary issues relate to that matter.

PN7

The first one is, whilst your notice didn’t include the words in section 170LK(4) of the Act which I just read to you and which are replicated in the statutory declaration. Your notice did in subsequent correspondence did a number of other things and I’ll just walk through those first of all before I revert to you if you like. The attachment A represents a circular which was issued to staff on 18 July 2005, is this the notice for purposes of section 170LK(2) of the Act?

PN8

MR BLOHM: Commissioner, I don’t think it was actually the intent, it was meant as - I don’t think it was taken into account in terms of the Act. But it subsequently we believe covered that notification because of this we contacted the union - - -

PN9

THE COMMISSIONER: Yes okay, look just before we get into that, I’ll just walk through this then. So just out of curiosity again can you just remind me what was the date on which the ballot took place for the agreement?

PN10

MR BLOHM: 16 December Commissioner.

PN11

THE COMMISSIONER: So a notice went out on 18 July indicating to staff your background and the intention to make a new agreement and informing them that the current agreement was to expire on 31 December 2005. And you indicated the represent - if I can put it this way, in that notice you indicated the representational avenues that employees may be able to exercise in relation to that, the making of that agreement or negotiation of that agreement. That was first of all you indicated to me that the then existing or the existing certified agreement had as a party the ASU and you indicated that to staff and you stated in that staff circular you indicated as follows:

PN12

The Australian Services Union (ASU) is currently respondent to the EBA and I have contacted the (relevant person) and advised him that we are entering into negotiations for a new EBA.

PN13

So you indicated that to your staff, you then indicated that there is a consultative committee and nominated the various individuals names on that. You have also nominated other individuals who have had a prominent role in the making of the agreement perhaps from the employers side. You’ve also at the conclusion of that document on the second page, indicated to staff that if they wish to raise matters about the negotiation of the agreement they may do so through the staff representatives on the consultative committee or with the relevant union person representing the ASU, if they should have enquiries or issues they want to raise over the month or so in which the agreement was negotiated. So that’s the first thing that’s happened.

PN14

I notice on 16 July two days prior to that staff circular you contacted the ASU, you indicated that you're intending to make a new agreement. And indicated to them that a staff notice to that effect had been issued - was to be issued in two days time. In relation to that I understand from the statutory declaration that no response was received from the ASU at any point over the period 16 July 2005 through to the ballot being 16 December 2005 is that correct?

PN15

MR BLOHM: That’s correct Commissioner.

PN16

THE COMMISSIONER: Did you have any other subsequent correspondence from the ASU about the agreement at all?

PN17

MR BLOHM: Not formal correspondence, my understanding - I've worked with the ASU representative on other issues with other organisations and certainly raised it informally. My understanding is that the ASU - I was told that currently the ASU doesn’t have members at Top End Group Training. While the ASU didn’t state it, it inferred that they weren’t - - -

PN18

THE COMMISSIONER: That was the reason for - their lack of involvement on your understanding at least was a function of the fact that they had no members, not indifference or administrative error.

PN19

MR BLOHM: Yes, it was because they had no members there they chose not be ….. with the arrangement. I understand Commissioner, that when the last ….. was certified the ASU in fact did have two or three members with the organisation.

PN20

THE COMMISSIONER: So in any event there was - whatever the reason was formally at least there was no - the ASU demonstrated no or there was no demonstration of ASUs interest from the time of the receipt of that email through to the time of the ballot and furthermore there was no request by any member of - any employee from that date onwards requesting - or presumably the silence of the ASU attested to the fact that no employee acted on that advice that was given to them. The question that falls to me is whether the advice was sufficient to meet the requirements of section 170LK(4) of the Act so that the potential outcome of section 170LK(5) of the Act was given ample opportunity to be given effect. That’s why I just want to briefly - whilst we have the opportunity of speaking with the employees representatives.

PN21

Ms Osborne can I ask you first of all what did you understand you could - the opportunity was that was before you as a consequence of the comments made in the notice of 18 July 2005 in respect of the ASU, what did you believe you could do?

PN22

MS OSBORNE: My belief was that from what Ray said, is effectively he had been in contact with them and they didn’t seem interested. I’m under the impression that I’ve got no staff in my office that are union members. I know that there was one lady that did ring the union up but that was mainly to find out about the wage rates and whether we were going to be given an appropriate level.

PN23

THE COMMISSIONER: But in the event that didn’t to you knowledge trigger any request to get the ASU to meet and confer with the employer about the agreement?

PN24

MS OSBORNE: No.

PN25

THE COMMISSIONER: In your knowledge, to your understanding was the reference to the ASU and to the relevant individuals sufficient advice for employees to appreciate that they could have sought the representation of the ASU had they so wished?

PN26

MS OSBORNE: Yes, I actually held the meetings with the staff. I was actually the representative for the new apprenticeship centre and at our meetings that we held during all of this time, it was always conveyed to those staff that effectively, you know if they wanted to they could ring upstairs, which is where the union is, it’s on the level above us.

PN27

THE COMMISSIONER: There’s that degree of proximity?

PN28

MS OSBORNE: Yes.

PN29

THE COMMISSIONER: Okay, thank you for contextualising that. So it was hardly a logistical issue then?

PN30

MS OSBORNE: No.

PN31

THE COMMISSIONER: Okay. So access to representation for purposes of meeting, conferring or even in more broadly than the Act requires, that is in respect of assistance in negotiation of the agreement was always at hand and within the full knowledge of the employees.

PN32

MS OSBORNE: Yes.

PN33

THE COMMISSIONER: Okay. Mr Shean is that your understanding?

PN34

MR SHEAN: That is my understanding Commissioner and it was emphasised at all our meetings that they had the opportunity to go and seek further assistance if they needed to.

PN35

THE COMMISSIONER: Good thank you. On that basis I said - in my view the relevant authorities which consist of in effect two Full Bench decisions, require the Commission to reach a view as to whether or not the requirements of the Act have been given effect and if I recall one of those decisions stated that - used the word that ultimately or in the end it is a matter of judgement properly formed by the Commission as to whether or not the Acts requirements have been given effect.

PN36

In my view and considering the documentation that’s before me I’m of the view that in the submissions of the parties and the two employee representatives who are here today, I am of the view that despite the fact that section 170LK(4) was not given effect in the manner anticipated by the Act, the Act’s purpose was nonetheless given full and proper effect and that is for all intents and purposes section 170LK(4) and section 170LK(5) were both given proper effect by the consequences of the conduct of the parties over the course of the negotiation in the making of this agreement.

PN37

In my view therefore there is no obstacle to the proper certification of this agreement brought about by the failure to meet these requirements in a strict or literal sense under section 170LK(4) of the Act. In any event in my view the intent of the parties was to give full effect to the representational rights of employees and no mischief of any sort is able to be reasonably discerned in those circumstances. As a consequence I’m able to certify the agreement to operate from today’s date and pursuant to clause 3 of the agreement to continue in operation until 31 December 2008. We are adjourned.

<ADJOURNED INDEFINITELY [12.16PM]