AG2006/4245, Transcript of Proceedings [2006] AIRCTrans 634 (12 April 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14769-1

COMMISSIONER RICHARDS

AG2006/4245

APPLICATION BY JOY MANUFACTURING CO PTY LTD, AFMEPKIU AND CEPU
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/4245)

BRISBANE

3.12PM, TUESDAY, 04 APRIL 2006

Reserved for Decision

PN1

MR P COPELAND: I appear on behalf of Deacons Lawyers seeking leave to appear for the applicant.

PN2

MS P ROGERS: I appear on behalf of the CEPU and for the record I don't object to Mr Copeland's appearance.

PN3

THE COMMISSIONER: Good, thanks, Ms Rogers. Right, Mr Copeland. I understand there's another party to this agreement but they're not here currently. They have been advised by the listing and I presume at some point they might appear but we'll just take it as it is. Mr Copeland, if you want to - - -

PN4

MR COPELAND: I understood there were two issues from the Commission's point of view with the application, one being whether a copy of the parent award formed part of the agreement, if I can just deal with that first. It was filed with a copy of the award attached to it but wasn't put out to the vote in that manner and isn't purported to be an all inclusive document in terms of the award forming an attachment to the agreement. So the agreement as filed can be read alone ignoring the fact that the award was also filed. I can lead some evidence if it helps the Commission on that.

PN5

THE COMMISSIONER: Well, I suppose the question that I really had was I'm just wondering whether we're dealing with this in proper order, that's also running through my mind. I'm just wondering whether we want to come to the issue up front as to what Ms Rogers wants to put because to be honest we should probably deal with that issue first of all and then we'll get down to the narrower part of the funnel, if you can put it like that, as we go along.

PN6

MR COPELAND: Certainly, Commissioner.

PN7

THE COMMISSIONER: Ms Rogers.

PN8

MS ROGERS: Thank you, Commissioner. Commissioner, I believe I have sent an email to your associate which I also sent a copy actually to Ms Tonkies at Deacons in relation to this. The CEPU position is, we believe, reasonably simple. We say that we haven't agreed to the proposed agreement. We haven't signed the proposed agreement.

PN9

THE COMMISSIONER: Sorry, you haven't agreed did you say?

PN10

MS ROGERS: We have not agreed to the proposed agreement and we say that on the basis of the rules of the union. The rules of the union are quite clear, our national council is entitled to delegate authority to people who may or may not be entitled to make an agreement on behalf of the union. There has been a decision of our national council in November 1997 which would allow our divisional branch secretary to make any and all decisions in relation to part VIB of the Workplace Relations Act and Commissioner, I have a copy both of the relevant part of the rules and also a copy of the relevant decision of our national council which I can hand up to you.

PN11

THE COMMISSIONER: So in effect section 170LJ(1) of the Act says:

PN12

The employer may make the agreement with one or more organisations of employees.

PN13

And then specifies the conditionality for the making of that agreement, but is it your submission that that agreement was never made with the CEPU or else was made with a person who didn't appropriate delegations, one of those or both?

PN14

MS ROGERS: Both I would suggest, Commissioner. So on that basis we say that we are not - that there is no agreement to which the CEPU is a party. As such we're not intending to sign the agreement, nor are we intending to provide a statutory declaration to the Commission. Having said all of that, we don't want to stand in the way of the certification of the agreement and we believe that the appropriate way to deal with it would be to have the union deleted, the reference to the union as a party to the agreement deleted from the agreement and allow the agreement to go forward as an agreement between the employer, the AMWU and the AWU.

PN15

THE COMMISSIONER: Before we just get into that can you tell me was there someone purporting to represent the CEPU who purportedly made the agreement on its behalf?

PN16

MS ROGERS: My understanding is that there was a delegate from the CEPU who attended negotiations and I believe Mr Pummell is present in the court room this afternoon. He was not - Commissioner, could you just excuse me for a minute?

PN17

THE COMMISSIONER: Yes, sure.

PN18

MS ROGERS: Commissioner, I'm a bit reluctant to go into too much detail of this because I understand that there was a possibility that Mr Pummell might be called to give some evidence and I am concerned that - - -

PN19

THE COMMISSIONER: That's right, but he's the relevant individual so to speak?

PN20

MS ROGERS: He is, Commissioner.

PN21

THE COMMISSIONER: Okay.

PN22

MS ROGERS: In relation to the documents that we've handed up to you the first document is an excerpt of our rules and if you look at clause 17 and in particular 17.1.2 and 17.1.3, it says - sorry. 17.1.1 says that the national council can delegate to a number of people and then it goes on to explain the sorts of matters that can be delegated at 17.1.2 and 17.1.3. The second document that we've handed up is an excerpt of the national council meeting from November 1997 and you will see the second motion that's been passed is pursuant to the rules which I've just referenced. The national council delegated its powers to the divisional branch secretary to take any action necessary to process under any manner under part VIB of the Workplace Relations Act.

PN23

We say that is the only power under our rules that would entitle a person to make an agreement on behalf of the CEPU.

PN24

THE COMMISSIONER: So that power that's vested in the divisional branch secretary from the national council - - -

PN25

MS ROGERS: From the national council.

PN26

THE COMMISSIONER: It can't be further delegated to any other - - -

PN27

MS ROGERS: Commissioner, I think there is a subsequent rule that allows the deputy secretary to perform all parts of the duties of the branch secretary.

PN28

THE COMMISSIONER: Yes, but not beyond that level not further delegable.

PN29

MS ROGERS: But not beyond that position, no. It's not a power that can move further down the line so to speak.

PN30

THE COMMISSIONER: Okay. Well, as you rightly say, I suspect that this issue might come into some issue of evidence shortly. So you're submission is that the CEPU did not and could not make the agreement for the purposes of section 170LJ(1) of the Act such that its inclusion as a party in the document that purports to be the application for certification, which is in essence the agreement, includes a reference to the CEPU as a party which is incorrect and though that agreement was subsequently made with the AMWU seemingly and the employer and subsequently approved for the purposes of section 170LJ(2) of the Act, it is nonetheless not an agreement that binds or could bind the CEPU and your further submission is that the agreement should be amended to excise the reference to the CEPU in its own right or wherever else consequentially it might be referred to in the agreement, and you rely for the power to amend in the decision of Munro J in Stork ICM Australia Pty Ltd?

PN31

MS ROGERS: That's correct, Commissioner.

PN32

THE COMMISSIONER: In print S3474 and you refer specifically to paragraphs 19 and 21 thereof. Now, Mr Copeland, do you want to take it from there?

PN33

MR COPELAND: I would like to leave my ability to argue another line open so is it possible to ask the Commission's indulgence in that if we make no submissions in relation to Ms Rogers' point and that subsequently accepted by the Commission we proceed along that basis, but if the Commission is not minded to rule in respect of Ms Rogers submissions - - -

PN34

THE COMMISSIONER: Okay, well, let's deal with - so in essence you're saying let's deal with Ms Rogers submissions and see where it takes us.

PN35

MR COPELAND: Without the applicant making any concessions at this ponit.

PN36

THE COMMISSIONER: Yes. No, it's a reasonable place to start. So the question really, that the ball is really hit back to me to tell you where the Commission stands in respect of the prospect that Ms Rogers has passed and in essence that is does Stork, the decision in re Stork stand. Well, that is a question that requires some considerable review of the authorities over the last few years which I'm happy to do. The proposition in Stork is that - the proposition that is entertained and upheld by Munro J in re Stork is that and agreement may be amended on the fly as it were by a member of the Commission presumably utilising its particular powers under section 111 of the Act such that the agreement is rendered capable of certification.

PN37

The basis on which his Honour made that decision was that although in the circumstance it would appear by implication and by inference from the decision that the - I think it was the CEPU in that matter too, that the CEPU had actually made the agreement it was nonetheless capable of being excised on the fly at the hearing by the presiding member and as a consequence of so doing it nonetheless remained an agreement that was capable of certification. That is a practice which has come under some scrutiny from subsequent Full Bench decisions of the Commission. I should go back one step and say his Honour was of the view that, if I recall correctly, that he was capable of making the amendment of the fly for reasons that he inclusion or rather, the excision of the CEPU as a party from the agreement as a minor technical matter, or as rather, sorry, "as a technical matter".

PN38

Well, a later Full Bench of the Commission in Atlas Steels found, amongst others things, and found and the other things being matters that were dealt with in the High Court decision in Electrolux which qualify that decision but on the issues I'm about to discuss the Full Bench decision was untainted as it were. In its decision in re Atlas Steel the Full Bench of the Commission found that an agreement could not be amended in a substantial manner other than by the completion of the appropriate processes under the Act, that is, the implication being that an agreement could be amended in a cosmetic or technical matter but it could not be amended in a substantial matter without the requirements of the Act being met in relation to those substantial amendments.

PN39

In this case is the excision of a party - there are subsequent Full Benches of the Commission as well which bear on this matter and I will come to those shortly, but the question that's raised initially at least in juxtaposing the decision in re Stork with re Atlas Steels is whether or not an amendment of the agreement as sought or as proposed constitutes a substantial amendment that could not be carried out other than by the completion of the proper processes of the Act. Well, in my view the excision of a party and in these circumstances being the CEPU, may indeed be capable of being characterised as a substantial amendment and I say that for an express reason that it would appear to me that the inclusion of the name of an employee organisation might bear importantly upon the decision of an employee to give approval to the agreement and the excision of that party from the agreement would suggest that that decision to approve or generally approve as is referred to in section 170LE of the Act maybe affected as a consequence.

PN40

So for that reason it's difficult for me to share the view of Munro J given the decision of the Full Bench in Atlas Steel that the decision of the name of a party is a mere technical matter. It would appear to be that the effect of the decision is such that it is capable of being a substantial matter and not a mere technical matter. Other issues are adjacent to that, sit adjacent to that concern and that is there is a majority decision in a Full Bench in re Monash with the majority decision comprising Senior Deputy Williams and Commissioner Tolley with Deputy President McCarthy dissenting.

PN41

The majority decision in re Monash and the decision in re Monash is print number 947598, that's 947598, the majority decision there, which is really in paragraph 43 to 49 thereof, has the following effect, the majority decision appears to be authority for the proposition that an agreement that is made by the parties must be the agreement is approved by the employees and it must also be the agreement that is before the Commission for certification or for purposes of section 170LJ of the Act. That is to say, there must be absolute regularity between the terms of an agreement as made for the purposes of 170LJ(1), has approved for purposes of 170LJ(2) and as is before the Commission for the purposes of section 170LT(1) of the Act and if there's any irregularity in the terms of the agreement or the document at each of those discrete stages then the agreement is incapable of certification.

PN42

That is the majority, that is the implication or the express decision of the Full Bench in re Monash, such that if there were any amendment on the fly, again to come back now to the decision in re Stork, if there were any amendment on the fly as it were to the agreement it would have the effect of being an agreement that is now before the Commission for certification that differs from the agreement that was made for the purposes of section 170LJ(1) of the Act and that was approved for the purposes of 170LJ(2) of the Act. So on both counts of the majority decision in re Monash and the decision of the Full Bench in re Atlas Steels it would appear that the decision by a single member in re Stork is not capable of being supported and it would appear that for purposes of an amendment to an agreement it would either, for the reasoning or ratio in Monash, fail for reasons of being a different agreement at the certification stage than was made or than that was approved; or else for the purposes of Atlas Steel, it was a substantial amendment that did not have the requisite approval as required under the Act.

PN43

The implication of that is if I was to attempt to excise the CEPU and consequentially any other details referring to the CEPU in the agreement, to my mind that would constitute a substantial amendment to the agreement that's before me that would necessitate the repetition of the making approval and making an approval of the agreement, such that the substantial amendment would be properly subject to the approval processes under the Act and its effect would be in respect of re Monash, it would have the effect of again ensuring that there was complete regularity between 170LJ,(1), 170LJ(2) and the agreement that is currently before the Commission.

PN44

So on that basis whilst I could allow for an opportunity for the parties to amend the agreement, the effect of the Full Bench is such that it would have to be amended such that it would need to be subject again to - it would essentially need to be remade and particularly it would again need to be subject to the approval process by the valid majority of the employee. Now, that's said as a conclusion. I would nonetheless whilst looking at the decision in re Stork quite some concern was expressed about the complexity of the remaking process, I'm unsure whether that is in practical terms necessarily the case. It was in fact in the very words in re Stork, it was implied by the member in that instance that there would have to be "a new vote", such that there would be a necessity to take everyone out of line and run a new campaign and so forth for the purposes of ensuring a valid majority satisfied the agreement.

PN45

However, section 170LE(1) and (2) of the Act provide two different means by which valid majority may be formed for the purposes of the approval of an agreement. One of those, section 170LED(2) if I recall, refers to a vote being taken for the purposes of meeting the Commission's requirements for it being satisfied that there is a valid majority for purposes of the approval or genuine approval of the agreement. However section 170LED(1) if I may recall, although I may have those around the wrong way, specifies such other means that may be appropriate and such other means might well be some measure of satisfactory demonstration that a valid majority of the employees at the workplace who are to be subject to the agreement approved the amended agreement.

PN46

There is authority by way of a Full Bench decision in Independent Supermarkets which in fact had the same presiding member as Atlas Steels which is an aside only, that although that might be required is some written indication to the Commission that the valid majority supported the amended agreement. There is in my view a little more to it but should the parties be interested in examining those matters I refer them to a decision, and I say so in all due modesty, in Icon Plastics Pty Ltd in print number 953215 and that decision simply surveys these issues about how you can form a valid majority and makes reference to the Full Bench decision in ISG Supermarkets.

PN47

In that case the Full Bench in ISG Supermarkets found that there was no nominal expiry date in the agreement and they subsequently certified the agreement upon a letter being received from a delegate of the SDA, as it then was, indicating that nobody had objected to the inclusion of a new date for the purposes of the nominal expiry date and the Full Bench took that as completing the requirements of it needing to be satisfied a valid majority approved the amended agreement. That is, that no-one objected to the new dates, a slightly different proposition I should say, but nonetheless the Full Bench accepted that that was the case.

PN48

My own, I suppose, position is somewhat more conservative in that where an agreement requires to be varied such that it meets the test of being of regularity in re Monash and meets the test of being appropriately approved in re Atlas Steels, I've taken the view that should the amended agreement be discussed at the workplace in whatever means, by way of toolbox meetings or the like, and the appropriate delegate or delegates provide a short statutory declaration indicating to me that the amended agreement has been put to the employees, they've had it for 14 days and they are by dint of their representative function are satisfied that the employees approved the amended agreement, that would be sufficient for me for satisfaction of section 170LED(1) of the Act and this is to be taken of course contextually with the fact that this agreement has already been voted upon, as I understand it from the statutory declarations that I have.

PN49

So what I have tried to give you there is something of a view on whether I can accept Ms Rogers submission. In essence I've said, well, I can't accept it in the sense that Stork in re Stork has proposed it because in my view subsequent Full Bench decisions have demonstrated that decision in re Stork is incorrect. But nonetheless there is a method of amending an agreement such that it's consistent with both of the decisions in re Monash and re Stork by way of utilising the Act's provisions for determining the requisite degree of satisfaction for the purposes of a valid majority being formed and in my view it can be done in a manner that involves minimal transaction costs and merely the production of a statutory declaration at an appropriate point.

PN50

Now, having said all of that, Mr Copeland, does that provide you with an avenue for dealing with this matter or - - -

PN51

MR COPELAND: It does, Commissioner, yes.

PN52

THE COMMISSIONER: The other avenue would be that you would need to demonstrate to me that the CEPU made the agreement. If it could be demonstrated to me that the CEPU made the agreement in my view that would attract the authority in re Alcheringa. Re Alcheringa is print number 951805, that's PR951805, and re Alcheringa is authority and I must admit at first blush I find it difficult to accept I must say, but nonetheless it's a judgment of a Full Bench of this Commission that has not been set aside.

PN53

Alcheringa is essentially authority for the proposition that an agreement is not rendered uncertifiable by a decision of a party to unilaterally withdraw from it and this is because the Full Bench held that even though it occurred before the - sorry, the reason for this is that the Full Bench in re Alcheringa determined that a party cannot unilaterally withdraw from an agreement even if it attempts to withdraw from that agreement before such time as the agreement is approved by the employees. Whilst I must say at first blush that would appear to me to be an interesting proposition it is nonetheless that was upheld by a Full Bench and the consequence of that is that if the CEPU was found to have made the agreement it could not withdraw from that agreement as a consequence.

PN54

It is bound by the agreement irrespective of any desire it might have consequently or subsequently to attempt to withdraw and even if it did attempt to withdraw and purported not to be a party to the agreement the Commission would nonetheless be capable of certifying - sorry, the Commission could nonetheless certify the agreement for which application is made because the purported attempt to withdraw from the agreement is of no effect and does not taint or in any other way affect the application for certification. So you really have two options. If you could demonstrate to me the CEPU made the agreement in my view the line of authority from Alcheringa is such that the agreement I could proceed today to certify the agreement because nothing the CEPU could do or say, if I was to find they made the agreement at first instance, could affect or taint the certification process and that's the decision, that's the proposition as authority, which stands as authority in re Alcheringa.

PN55

But equally so if the question mark is over that and what the parties are seeking to do is to avoid engaging in that proposition about whether or not the CEPU made the agreement but instead looked to amend the agreement, well, the agreement could be amended but it would need to be amended in the manner in which I propose and for the reasons that I gave.

PN56

MR COPELAND: Commissioner, my instructions are to attempt to convince the Commission that agreement has been made with the CEPU today so I would like to carry on with those submissions if I may.

PN57

THE COMMISSIONER: And they will address Ms Rogers point of view, submission that even if there was a person purporting to be a delegate from the CEPU involved in those matters that person was not capable of making the agreement, would it deal with that particular issue?

PN58

MR COPELAND: I will make submissions on that point, Commissioner, yes.

PN59

THE COMMISSIONER: Okay. Well, then let's proceed.

PN60

MR COPELAND: Commissioner, you have before you two statutory declarations and there's a minor typographical error that I would like to correct in relation to section 6.4 of the statutory declaration from the employer represented by Grant Harrison and the error is identically flowed through to the statutory declaration of the AMWU sworn by Mr Andrew Depner who is not here today. I appreciate - sorry, I withdraw that. Mr Harrison form the employer is the director human resources and is currently in Chile and through some difficulties we can't have him available to swear to the alteration we seek leave to make but I have the operations manager of the employer present today that could substitute for that statutory declaration if so permitted and swear to the alteration or the whole, in effect substitute his name for Mr Harrison's on an amended statutory declaration. You will note, Commissioner, that - - -

PN61

THE COMMISSIONER: So are you saying that the error was in 6.4?

PN62

MR COPELAND: Yes, where the agreement was given to the employees. You will note in 6.7 the date - - -

PN63

THE COMMISSIONER: Yes, some two weeks after the vote.

PN64

MR COPELAND: That's correct, so I wish to correct that error, please, Commissioner.

PN65

THE COMMISSIONER: And by substituting different dates, is that - - -

PN66

MR COPELAND: Yes, if it please. The proposed amendment is to substitute the date 20 February in clause 6.4 of the statutory declaration of Mr Harrison.

PN67

THE COMMISSIONER: That's at paragraph 6.4?

PN68

MR COPELAND: Yes, Commissioner.

PN69

THE COMMISSIONER: And the vote was nonetheless was still held consistent with 6.7 and that's on 7 March?

PN70

MR COPELAND: Yes.

PN71

THE COMMISSIONER: Okay.

PN72

MR COPELAND: Can I call Mr - - -

PN73

THE COMMISSIONER: For purposes of formality I should say that I utilise rule 6 of the Commission to waive the requirements of the rules such that I need to have a duly signed declaration. I have subsequently amended the declaration such that it's probably ceased to be, strictly speaking, a statutory declaration so I exercise my discretion expressly for accommodating those circumstances. Sorry, you wish to call - - -

PN74

MR COPELAND: Would you like to hear evidence on that point or are you - - -

PN75

THE COMMISSIONER: On that particular point, no.

PN76

MR COPELAND: Thank you, Commissioner. Commissioner, as you've pointed out, the issue that we have before us at the moment is to convince the Commission that the agreement was actually made with a relevant representative of the CEPU and can I call, please, Mr John Pummell to give evidence on that point.

<JOHN GRAHAM PUMMELL, SWORN [3.47PM]
<EXAMINATION-IN-CHIEF BY MR COPELAND

PN77

MR COPELAND: Mr Pummell, can you tell us your full name, please?---John Graham Pummell.

PN78

And what position do you hold, please?---I am an employee of Joy Mining.

PN79

Do you have any affiliation with the CEPU?---I am a delegate for the CEPU.

PN80

What part did you play in negotiations leading up to the vote for the certified agreement?---I was present at all negotiations and - - -

PN81

Can I hand up a couple of documents, please, Commissioner.

PN82

Can you identify those two documents, Mr Pummell?---Yes, they're the minutes taken from the meetings we were at.

PN83

Commissioner, I please ask them to be marked as exhibits?

PN84

THE COMMISSIONER: Yes. Well, refer to them as JM - it depends on how you want to utilise them. Can we refer to them jointly or do you want them marked separately?

PN85

MR COPELAND: Singularly, please, Commissioner.

EXHIBIT #JM1 MINUTES OF MEETING 10 FEBRUARY
EXHIBIT #JM2 MINUTES OF MEETING 17 FEBRUARY

PN86

MR COPELAND: Mr Pummell, on JM1 in the attendance list who are the two persons named at the bottom of that list, please?---Terry Greeve and Craig Giddons. Craig Giddons is an ETU organiser.

PN87

Do you have any other information on his title?---ETU state organiser.

PN88

And in JM2 was Mr Giddons present when the employees attended the meeting on 17 February?---Yes, yes, he was present.

PN89

Can I take you to the last page in JM2, please, were there any subsequent meetings after that 17 February in respect of negotiations for the certified agreement?---No, no, that was the final meeting and we all agreed on it from that day.

**** JOHN GRAHAM PUMMELL XN MR COPELAND
PN90

And do the minutes reflect that position on the last - how do the minutes reflect that position on the last page?---Yes, Dominic on behalf of all the employees, he spoke for all of us, we agreed to the offer from Chris Horwood who is present and yes, everyone was happy.

PN91

And did Mr Giddons express any dissatisfaction or objection to the agreement at that stage?---At that point, no, he did not. No, we were all happy with the agreement.

PN92

I understand that 17 February was a Friday?---Yes.

PN93

When did the agreement go out to the employees?---To the employees, it went on the following Monday, which is the 20th, yes.

PN94

20 February. And do you recall what date the vote occurred?---The vote was
7 March.

PN95

When was the first time you were aware of any dissatisfaction from the CEPU in respect of the agreement?---It was about two weeks after that, yes. I heard that they weren't going to sign the agreement.

PN96

I have no further questions, Commissioner.

PN97

THE COMMISSIONER: Ms Rogers, do you want to avail yourself of the opportunity?

PN98

MS ROGERS: Thank you, Commissioner.

<CROSS-EXAMINATION BY MS ROGERS [3.51PM]

PN99

MS ROGERS: Mr Pummell, you say you're a delegate with the union?---Yes.

PN100

Part of your role as a delegate is to represent the employees?---Correct.

PN101

And to communicate with the relevant officials of the union?---Yes.

PN102

Did you at any time have any discussions with the divisional branch secretary of the union in relation to this agreement?---The divisional branch secretary? Could you name that person?

**** JOHN GRAHAM PUMMELL XXN MS ROGERS
PN103

Mr Richard Williams?---Only in the last couple of days.

PN104

Did you, during the negotiations of the agreement, have any discussions with Mr Williams?---No. I tried to remember - - -

PN105

Did you, prior to the meeting of 17 February, have any discussions with Mr Williams?---No.

PN106

Did you, at any stage, receive authorisation from Mr Williams to negotiate the agreement on behalf of the union?---No, but I can, you know, get the - - -

PN107

Are you aware of whether Mr Giddons spoke to Mr Williams prior to the meeting of 17 February, in relation to the agreement?---I can't honestly say whether he did or not.

PN108

So to the best of your knowledge, Mr Williams was not aware of the agreement that was reached on that date?

PN109

MR COPELAND: Commissioner, that's a little beyond the scope - - -

PN110

THE COMMISSIONER: Yes, that's right. I think, Ms Rogers, you got probably far enough with the last question. We probably don't need the second question.

PN111

MS ROGERS: Thank you, Commissioner.

PN112

Mr Pummell, do you have an awareness or an understanding of the rules of the union?---To which - an awareness. I have had delegate's training.

PN113

I'm aware that you actually were in the court room when we had this discussion previously, but I will ask the question regardless. Are you aware that the rules specifically provide a way for decisions to be made in relation to agreements?---I am aware of it now, but I certainly wasn't aware of it at the time.

PN114

Of the?---I perceive that you're asking me about my signing that agreement?

PN115

Were you - no, no. I'm asking in relation to your authority to negotiate and make an agreement on behalf of the CEPU?---Okay.

PN116

Are you aware that the rules of the union clearly outline who may or who may not make an agreement on behalf of the union?---It's a difficult question. I was acting under Craig's guidance, under Craig Giddons' guidance. Craig was present at both meetings. Can you define agreement? What agreement are you talking about?

**** JOHN GRAHAM PUMMELL XXN MS ROGERS
PN117

Can I just go back to the question?---Mm.

PN118

Were you aware that there was provisions in the rules that provide for who can and who cannot make an agreement on behalf of the union?---No.

PN119

Okay. So Mr Williams never authorised you to negotiate on behalf of the union?
---No. So - not directly, no.

PN120

Did you, prior to signing the written document, discuss the proposed agreement with Mr Williams?---No.

PN121

Commissioner, I have no further questions.

PN122

THE COMMISSIONER: Thank you. Any re-examination?

PN123

MR COPELAND: Just one, Commissioner.

<RE-EXAMINATION BY MR COPELAND [3.56PM]

PN124

MR COPELAND: To your knowledge, did Mr Giddons discuss the agreement with officials further up the chain?---Yes, he did.

PN125

MS ROGERS: Well, Commissioner, when I attempted to ask that question of Mr Pummell, I think Mr Copeland actually objected.

PN126

THE COMMISSIONER: Yes. Can you justify that question, Mr Copeland?

PN127

MR COPELAND: My objection was on the basis that the witness was asked to the best of his knowledge, Mr Williams' understanding. My question directly relates to the witness's knowledge of Mr Gibbons - - -

PN128

THE COMMISSIONER: Yes. The question that arose before was a question about whether it was something that was constantly within Mr Pummell's knowledge, but can you just restate the question so I can satisfy myself you're not going down the same path?

PN129

MR COPELAND: Certainly.

PN130

Have you direct knowledge of any - by way of overhearing or being told by Mr Giddons, of any communications he'd had with officials further up the
CEPU?---I have had phone calls with Mr Giddons and he intimated that everything was okay. I asked him if it had been through our legal people and he said, yes, everything's okay. He was happy with the agreement.

**** JOHN GRAHAM PUMMELL RXN MR COPELAND
PN131

Thank you. No further questions. Can the witness be excused, please, Commissioner, unless you have any questions.

PN132

THE COMMISSIONER: The witness is excused.

<THE WITNESS WITHDREW [3.57PM]

PN133

THE COMMISSIONER: I just make the observation in passing that the last question did elicit information about what someone else said, and I just note that
it - - -

PN134

MR COPELAND: Well, Commissioner, I leave it to your discretion about the weight you put on the answer.

PN135

THE COMMISSIONER: That's right. Nonetheless - - -

PN136

MR COPELAND: Thank you, Commissioner. Just addressing the issue of actual authority, Ms Rogers - and forgive me, I'm not intimately aware of the rules of the CEPU and I'm just reading the documents that I've been given for the first time, but the document, the two-page document, with the lower quarter headed, Execution of Agreements and Documents, at clause 17.1.1, and forgive me if I've misunderstood Ms Rogers, I'm sure she'll correct me if that's the case, 17.1.1 refers to the national council's ability to delegate authority. That brings into play the second document that we were given about a motion that that authority is delegated to a divisional branch secretary who we've identified as Mr Williams.

PN137

My only point on that matter - well, two points; the first is the agreement binds, in clause 4(c) the electrical, electronic division of the CEPU, and just on a plain reading of section 17.1.2, that appears to be the section that deals with execution in respect of agreements that pertain to members of only one division. That provides that that can be executed in accordance with that division's rules. I just make the point that I don't know if we have the electrical, electronic division's rules to refer to. But in any event, my submission is that while even leaving aside whether there was actual authority, there was certainly sufficient apparent authority or ostensible authority by the actions of the state organiser and the inactions of the union officials to - which amounts to, in my submission, an acquiescence in the least, but my primary submission is an express agreement by the union to the agreement.

PN138

Those things having been ascertained or accepted on the basis of statutory declarations and the Commission's observations earlier about the other procedural aspects of the application, I submit that the application is capable of certification, notwithstanding the absence of a statutory declaration by the CEPU.

PN139

THE COMMISSIONER: Well, the Act doesn't require the agreement to be signed, nor does it require the provision of a statutory declaration. The Act simply requires what it requires for the purposes of section 170LJ in this case, and section 170LI. Your submission really requires me to make a decision as to whether or not there was sufficient action by a person purporting to be a representative of the CEPU, such that it was proper and appropriate that the parties to the agreement formed the view that the agreement had been made.

PN140

MR COPELAND: Act or omission, Commissioner, yes.

PN141

THE COMMISSIONER: Yes. I'm just troubled somewhat in my mind, just in passing, as to whether or not the negative proposition is sufficient. The term the Act uses is that the employer must make the agreement with one or more organisation of employees, and I'm not too sure - well, it's unsettled in my mind whether that's a positive act, an affirmative act, or one that can be given effect by acquiescence, a more passive approach. But I must say the term make as I look at it doesn't have some of the characteristics of a term like approve and so forth.

PN142

MR COPELAND: With respect, Commissioner, the only evidence so far you have before you, tangible evidence, is the minutes of the meeting where it records that the agreement was agreed and the members that had participated in that meeting, and it records no dissention. So my submission is that that is an active act of approving the agreement.

PN143

THE COMMISSIONER: And the document, you say, JM2, sufficiently demonstrates that the issue came to a head, as it were, at the conclusion of the meeting?

PN144

MR COPELAND: Yes.

PN145

THE COMMISSIONER: That is whether or not the agreement is now made. That is, the express proposition was before all of those who were in attendance and who are named as being attendees at that meeting?

PN146

MR COPELAND: That's my submission, Commissioner.

PN147

THE COMMISSIONER: Okay. Thanks, Mr Copeland. Ms Rogers?

PN148

MS ROGERS: Thank you, Commissioner. Commissioner, we clearly are of the view that an agreement has not been made with the union. The evidence before you today given by Mr Pummell who was the CEPU delegate involved at the meetings, is clear that he had no discussions with the union secretary. He has no direct evidence that he can give the Commission about any knowledge of the union secretary, about the negotiation of those agreements. He gives some hearsay evidence, but the weight that the Commission puts on that must obviously be diminished. The rules of the union are quite clear. It would be passing strange for a union to allow delegates to run off and make agreements without some form of discussion or authorisation from people in positions of authority under the formal structure of the union.

PN149

We say in this instance the agreement, or the negotiations that have occurred and have been finalised do not make an agreement as contemplated at section 170LJ(1) of the Industrial Relations Act. In relation to the behaviour of the employer, Commissioner, I have a few comments I would like to make. This is not the first agreement that the employer has made with the CEPU and other unions. It is not the first time they've gone through the process of negotiating an agreement. It is not the first time they've gone through a process of having an agreement certified. In previous agreements, while there may have been a signature of a delegate, there has always been the signature of the divisional branch secretary.

PN150

In fact, I've checked the previous agreement and we have facsimiled information where it's clear that the company was aware of the need for the secretary to sign the document before the document could proceed for registration and certification. I have a copy of that letter to hand up to the Commission. Commissioner, I simply refer you to the final line and a half of that document, or the final paragraph, where it requests that the document would be signed off, forwarded to the appropriate representative and would then proceed to the Commission for registration and certification. It's clear that the employer is aware of the procedures or the processes that occur within the union.

PN151

We say that the employer in this instance is attempting to use our delegate in a not terribly sophisticated manner to compel the union to be a party to a document to which it is clearly never agreed, to which it clearly does not agree, and we see the behaviour of the employer in this instance as being quite reprehensible, to attempt to use the delegate in this manner. Commissioner, we would say that in relation to the matter of Alcheringa, we can distinguish between that matter and this matter on the basis that in Alcheringa it was clearly an agreement that had been made between the employer and the unions, and one of the parties who in fact had agreed to that document then subsequently attempted to withdraw their agreement.

PN152

We say that's clearly not the case in this situation. I just reiterate that the CEPU has not at any point indicated agreement. My understanding was that our disagreement had in fact been communicated and I have limited instructions in that regard, but my understanding was clearly that we had indicated that we did not agree and we did not intend to sign the agreement nor the statutory declaration. My understanding is that was relayed to the delegate and I thought that the information had also been relayed to the employer. I can't unfortunately provide you with details in relation to that, but that's definitely been the subject of a conversation that I've had with the relevant organiser.

PN153

Commissioner, we would say that we believe the agreement is capable of being certified and we would say that the appropriate way for the agreement to go forward would be in accordance with the suggestions that you made previously, which are that the union should be excised from the agreement and that the employer should then go ahead with the relevant processes under section 170LE of the agreement. The union does not seek to prevent the certification of the agreement; what we seek to prevent is to have the name of the union put on an agreement to which we have not agreed. May it please the Commission.

PN154

THE COMMISSIONER: Thank you, Ms Rogers. Is there anything else that needs to be put to me on this matter, Mr Copeland?

PN155

MR COPELAND: No, Commissioner.

PN156

THE COMMISSIONER: Thanks. Well, I have some submissions before me in relation to this matter and some evidence and I'll need to reflect on that. As a consequence, we will adjourn and a decision is reserved. Thanks, everyone.

<ADJOURNED INDEFINITELY [4.10PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN GRAHAM PUMMELL, SWORN PN76
EXAMINATION-IN-CHIEF BY MR COPELAND PN76
EXHIBIT #JM1 MINUTES OF MEETING 10 FEBRUARY PN85
EXHIBIT #JM2 MINUTES OF MEETING 17 FEBRUARY PN85
CROSS-EXAMINATION BY MS ROGERS PN98
RE-EXAMINATION BY MR COPELAND PN123
THE WITNESS WITHDREW PN132