AG2005/7825, Transcript of Proceedings [2006] AIRCTrans 192 (16 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14121-1

COMMISSIONER RAFFAELLI

AG2005/7825

APPLICATION BY CAPTAIN COOK CRUISES PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/7825)

SYDNEY

10.35AM, THURSDAY, 02 FEBRUARY 2006

PN1

MR M DIAMOND: I appear for the applicant this morning, with me, CAPTAIN HAWORTH, the company's managing director. Commissioner, while I'm on my feet, because it will affect the appearances here, I need to advise the Commission that I have been instructed to withdraw the application that is before the Commission. We do not seek to proceed any further. So this application for certification is hereby withdrawn.

PN2

THE COMMISSIONER: I'm not sure you can withdraw it, can you?

PN3

MR DIAMOND: I think that I can.

PN4

THE COMMISSIONER: Can you? Okay. Well, let me just check. Well, tell me why you can withdraw the application, Mr Diamond?

PN5

MR DIAMOND: The agreement as it stands at the moment is an agreement that has been made between an employer and its employees. It was determined to seek certification in the Commission. The applicant, in this case being the employer, has determined that it does not wish to certify the agreement. We will advise the employees accordingly. There is no obligatory provision contained anywhere within the Act that would facilitate or permit an application to go ahead, the employer applicant having determined to withdraw that application. In other words, it's not mandatory.

PN6

THE COMMISSIONER: Well, section 170LT says:

PN7

(1) If an application is made -

PN8

which it has been:

PN9

- in accordance with Division 2 or 3, the Commission must certify the agreement if it is satisfied that all of those mandatory provisions have been established, and it must refuse to certify the agreement -

PN10

But you entered into a contract with your employees.

PN11

MR DIAMOND: Yes, and which we will honour in every respect, and I need to make that clear, but the key I think in section 170LT, Commissioner, is that the application having been made, what I have advised the Commission is that the application is now not made.

PN12

THE COMMISSIONER: Well, I don't - this is probably a matter that needs to be adjourned and set down for hearing, but prima facie, I don't accept, I don't think you're right. But I could be wrong. I mean, it's a bit unusual. We've had cases where unions and employers have had agreements and one side, sometimes the union, sometimes the employer, I think it's been a mixed bag, have attempted to pull out and the agreement has been certified irrespective of that. Now, it may be that there's a difference where here, essentially, there's only one party to the application, the employees aren't parties to the application, although they're parties to the agreement, so I'm not dismissive of your position, Mr Diamond

PN13

It's just a bit unusual and needs some consideration, because if it's to be certified, if I'm right, then it must be certified. If I'm wrong, it won't be.

PN14

MR DIAMOND: I well apprehend the unusual-ness, if that can be a noun, of the situation.

PN15

THE COMMISSIONER: Well, you've made it one, I think.

PN16

MR DIAMOND: And insofar as a hearing date is concerned, Commissioner, I'm in your hands on that. I need to advise the Commission that I myself don't have any spare time until the week beginning 20 February, because I'm in two other hearings in separate jurisdictions. But happy to have the matter set down for hearing and for argument.

PN17

THE COMMISSIONER: Yes. Well, it might have to be the week after that, because I'm away that week. In any case, I apprehend the employees are receiving certain benefits and the delay is really one of whether this should be certified or not. The longer it's not certified, the more comfortable you are,
so - - -

PN18

MR DIAMOND: There is an iron-clad commitment, and I am aware of the fact that this is being said on transcript, there is an iron-clad commitment to abide by every word, letter, figure, paragraph, sentence and line in the agreement.

PN19

THE COMMISSIONER: Yes.

PN20

MR DIAMOND: That the basis for the application not to proceed to certification has nothing to do with the application of the agreement to the employees. That will be 100 per cent committed to by my client. There are other issues.

PN21

THE COMMISSIONER: Yes. Thank you, Mr Diamond. In the circumstances, although I see you're here, Mr Giddins - well, perhaps I should just know what you want to say. I note your appearance. I don't think you have appeared.

PN22

MR W GIDDINS: Yes, I do appear, and I seek leave to intervene pursuant to section 43(2)(a) of the Act. I had a very brief discussion with my colleague at the table who indicated that he did not intend to object to my leave for intervention, so perhaps that can be confirmed?

PN23

MR DIAMOND: I apprehend my friend's application to seek leave to intervene. It would be - and I'm aware of the provisions of section 43. It would seem to me, though, that the Commission cannot deal with the application for leave to intervene until it has dealt with our application to withdraw the application for certification. One must follow the other, and I think at the moment Mr Giddins is just being a bit premature. Because it relates to an application and the issue before the Commission - - -

PN24

THE COMMISSIONER: Yes, but you - yes.

PN25

MR DIAMOND: - - - is whether or not that's going to proceed.

PN26

THE COMMISSIONER: Except that you're not denying that there has not been an application. What you're then saying is you seek to withdraw that application?

PN27

MR DIAMOND: Yes.

PN28

THE COMMISSIONER: So technically, I think Mr Giddins is in because there is an application. Now, he then of course has to satisfy the Commission, which we might do at a later time, about the membership question and all that sort of stuff, unless you want to deal with that now, Mr - - -

PN29

MR GIDDINS: I didn't understand that that point was raised, Commissioner, and I concur with your comments. Prima facie, the Act and the rules have been complied with, with the filing of the application and so, prima facie, but subject to any proceedings that might be brought, an application is on foot before this Commission at this very moment.

PN30

THE COMMISSIONER: Yes.

PN31

MR DIAMOND: And I think that's the issue; that it's got to be determined by yourself, sir, because at the moment we're saying there is no application. We have withdrawn it.

PN32

MR GIDDINS: Commissioner, I think the true characterisation of what's happening this morning is that there is an application on foot before the Commission with Mr Diamond and his client to withdraw.

PN33

THE COMMISSIONER: You're seeking intervention pursuant to 43(2)(a), are you, Mr Giddins?

PN34

MR GIDDINS: I'm seeking intervention pursuant to 43(2)(a), that is correct.

PN35

THE COMMISSIONER: But have you satisfied the 170LK(4)?

PN36

MR GIDDINS: I beg your pardon? LK(4), that's correct. I have written to the Commission on 12 December. That correspondence should be in the file. It's an application with the appropriate form for both the AMOU and myself, because I appear for both, and we have written to the company and put them on notice that we seek to, (1) intervene, and (2) we seek to have section 170M(3) apply in this regard. It's speculation on my behalf, Commissioner, but I form at least a preliminary view that that type of application and my appearance here this morning may in some way be governing the withdrawal of the application by Mr Diamond and his client.

PN37

But certainly I am happy to, on a confidential basis, establish the validity of whether the terms and grounds supporting section 43(a) have been met. I didn't understand there was a challenge to that.

PN38

THE COMMISSIONER: I see. You say that you have a request by a member of the union and an employee of Matilda to represent them?

PN39

MR GIDDINS: I'm saying that on behalf of the MUA and the AMOU, both unions have an application in the terms you've just outlined, and that we have forwarded, on 12 December, a form 30A which, had the application to withdraw the proceedings not occurred, we would be seeking to become a party to the agreement.

PN40

THE COMMISSIONER: Yes. Well, you see, there are two issues.

PN41

MR GIDDINS: Yes, I understand.

PN42

THE COMMISSIONER: Strangely, the Act contemplates a union being bound, even if the union is not - - -

PN43

MR GIDDINS: No, I understand. The question - - -

PN44

THE COMMISSIONER: - - - doesn't get intervention rights, which is strange.

PN45

MR GIDDINS: The question that you're addressing is, has either union been requested by an employee intending to be governed by the agreement who is a member and entitled to be represented by the union, have those unions been requested to represent those two members in respect of negotiating and dealing with the agreement, and subsequently being bound by the agreement? And I respond to that question in the affirmative. And I have documentation to that effect which, for the purposes of leave to intervene, I am prepared to provide to the Commission on a confidential basis, that will establish - - -

PN46

MR DIAMOND: We're not putting that in issue, though.

PN47

MR GIDDINS: I didn't think it was an issue.

PN48

MR DIAMOND: We're not putting that in issue either. I don't think there's any secret about this. My client has been opposed to the unions that Mr Giddins represents today being a party to any documents with it. It well understands that the unions have membership within the workforce. And that of itself is not something to which our client has any fundamental objection at all. But what the company says is that it has a fundamental objection to the union being a party to a document that the company has with its employees. In view of the fact that the union has now indicated an intention to seek to bind itself to that agreement, my client says we will not accept that and we will therefore not continue with an application to certify.

PN49

It is that fundamental to our business. That is what our client says. Mr Giddins' application for leave to intervene, and indeed their role in the proceedings, in my submission can only go forward if the Commission determines that it, the Commission, is obliged to go forward with an application which the employer has indicated it is withdrawing. That is the point, and that's what needs to be heard and determined in a considered fashion by yourself, sir. Because clearly there are some important legal issues attached thereto.

PN50

THE COMMISSIONER: Well, yes. I propose to grant the intervention. That doesn't get us very far. We will need to re-list the matter to determine whether in fact it's the main game, which is the withdrawal of the application.

PN51

MR DIAMOND: Yes.

PN52

THE COMMISSIONER: I have already flagged some difficulty I see, I don't want to canvass it with you, Mr Diamond, but perhaps so you know where I'm coming from, the difficulty I see with the mandatory nature of section 170LT which says you reach agreement, it will be certified once it's applied for. I hear the counter-view. But I'm also - time doesn't allow me to sort of hold this thing up because we are not dealing with it at the moment, but I'm just conscious of the Part XA of the Act, and that is the prohibited action by - usually it's employees, or unions, but by employers. You know, 298K(1) says:

PN53

An employer must not threaten to do any of the following: Dismiss an employee, injure an employee -

PN54

And then there is a definition of what prohibited reasons are. It may very well be that to say to employees, "You've got an agreement but now that one of you wants your union bound to that agreement", which the Act and the parliament has made clear is a right, this is not my idea, it's the Act through section 170M(3), that it's just not fair, and in fact prohibited, to say to an employee, "Well, now that you've brought the union into this, we're not going to play ball any more". Anyway, and it may very well be that to leave people unprotected, notwithstanding your undertaking, but legally it's unprotected, that that would be a prohibited reason.

PN55

It's a big issue. Maybe by adjourning it for the weeks that inevitably we'll have to, it might allow the parties to reconsider, to come to some kind of accommodation as to your respective attitudes. Anyway, without labouring the points, the agreement will not be dealt with any further today. It will be adjourned for
that - - -

PN56

MR GIDDINS: Commissioner, I wonder if you could deal with my application for leave to intervene because it's very fundamental - - -

PN57

THE COMMISSIONER: I thought I granted leave to intervene.

PN58

MR GIDDINS: I'm sorry, I didn't hear that. I'm sorry.

PN59

THE COMMISSIONER: Yes. I didn't ask for that material because I didn't think that was an issue from the other side, so I accept that you have a member, you and the other union have a member and they've requested the necessary things to be - but in the end, your participation, not dismissing what your unions have to say, but it really is a case of the employer and the Commission being satisfied that the withdrawal ought be made or not. Then we'll worry about what the attitude of third parties might have to the thing.

PN60

MR DIAMOND: I well understand we have to satisfy you. Do we have a date, sir?

PN61

THE COMMISSIONER: Well, I have other matters that - my associate will talk to you, Mr Diamond, and make sure it fits with your respective plans, and mine.

PN62

MR DIAMOND: Thanks, Commissioner.

PN63

THE COMMISSIONER: On that basis, these proceedings are adjourned. Thank you.

<ADJOURNED INDEFINITELY [10.55AM]