AG2006/2958, Transcript of Proceedings [2006] AIRCTrans 658 (18 April 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14790-1

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2006/2958

APPLICATION BY BRAMBLES AUSTRALIA LIMITED & AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/2958)

SYDNEY

9.35AM, THURSDAY, 06 APRIL 2006

PN1

MS P EGGINS: I appear on behalf of Brambles Australia Limited trading as Cleanaway.

PN2

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Ladies and gentlemen, the question I have in these proceedings relates to whether the Commission has a valid application before it, given the requirements of section 170LI and that was the issue on which I think my associate indicated that you would need to address this morning. I'm in your hands on that.

PN4

MR MORRISON: Your Honour, because I was at a conferences yesterday and I may not have been communicated precisely which clauses are in question, I'm given to understand, though, it's clause 15 and clause 16 of the proposed agreement. Is that correct?

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, and particularly clause 16 seems very similar in nature to the clause which the Full Bench found didn't pertain in the Schefenacker decision.

PN6

MR MORRISON: Yes, and I'm prepared to give an undertaking on transcript that it is the AMWUs position that that clause clearly relates to right of entry on legitimate union business only as it pertains to the employer-employee relationship.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think we've had this discussion before, Mr Morrison. As I understand it the authorities established that there's a two-step process and the first step of that is to ensure that there's a valid application before the Commission and if there is a valid application then section 170LT - - -

PN8

MR MORRISON: Allows me to make such an undertaking.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. I think that's the difficulty we have here, isn't it?

PN10

MR MORRISON: I would see that the application is valid, however, the Commission would be quite within its powers, I believe, to then allow for that LT undertaking to be made. There's no question that a clause headed Right of Entry is a valid clause. It's the wording of that clause that can be clarified with the 170LT undertaking.

PN11

THE SENIOR DEPUTY PRESIDENT: On that score, clause 15 looks to me to be similar in nature to clause 16 and suffer the same sort of problems.

PN12

MR MORRISON: I would have to take issue with that, your Honour. Clause 15 is directly extracted from the underpinning award, the parent award, clause 3.1.2 of the federal Metals Award which talks about:

PN13

The employer shall permit a noticeboard to be erected in the plant or each part of the plant to facilitate communication between employees and/or their union representatives.

PN14

That is directly allowed in the award so I would see that - - -

PN15

THE SENIOR DEPUTY PRESIDENT: But that's not this one says.

PN16

MR MORRISON: It says it in the same way. It's not precisely a copy but exactly the same message is pertained in that.

PN17

THE SENIOR DEPUTY PRESIDENT: What I was looking at was the commonality of terminology between 15 and 16 but, look, you know, we probably don't need to go to 15 because I think the authorities already are fairly clear in relation to 16 and that's our problem.

PN18

MR MORRISON: Again, your Honour - and obviously the company can speak for itself - but it would be our position that you do have a valid application before you except for the fact that by way of an undertaking to clarify that application, which I'm prepared to give, that would allow the agreement then to be certified by the Commission. I don't think the Schefenacker decision actually is offended by a right of entry clause.

PN19

THE SENIOR DEPUTY PRESIDENT: Correct. It's the nature of the clause.

PN20

MR MORRISON: I think it's the nature of the clause which can be, of course, corrected by the undertaking I'm prepared to give.

PN21

THE SENIOR DEPUTY PRESIDENT: Again, as I understand the authorities, and you might recall that there was a series of decisions that dealt with this, Vice President Lawler took the view that you've expounded but then recanted when he looked at the Federal Court authorities on that because, you see - well, we don't need to go into that but my understanding is, on the authorities, that we get to the issue of considering those things if there's a valid application before the Commission and it would appear that, because of clause 16 and therefore section 170LI arguably not being met, that there's not a valid application before the Commission.

PN22

MR MORRISON: I can only repeat, your Honour - - -

PN23

THE SENIOR DEPUTY PRESIDENT: I think we both know the situation, don't we? We've discussed it before.

PN24

MR MORRISON: We both know the situation, I say it depends on which area you're viewing it from. We say, obviously, that we think there's a valid application but that can be amended. Your Honour, if I understand correctly, is of the view that because the actual wording of that clause does not meet the standard of its ultimate outcome that it falls at the first hurdle and doesn't even get in the door, if you like, as an LI application. I suppose that's a different opinion that the two parties would have. Obviously we're in your hands so I can't make any more points than I have on that matter.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Morrison, I appreciate that. Ms Eggins, what would you like to say on the matter?

PN26

MS EGGINS: In regard to those two clauses?

PN27

THE SENIOR DEPUTY PRESIDENT: Particularly addressing clause 16 and whether that complies with section 170LI which is one of the mandatory conditions for an application being made in accordance with Division II.

PN28

MS EGGINS: Yes, your Honour, I agree with Mr Morrison. The company agrees.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, okay. You're aware of the Schefenacker decision?

PN30

MS EGGINS: Yes. Just before I left your associate phoned us and gave it to us but I didn't have time to peruse it, I'm sorry.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, okay. I have had a chance to re-read the relevant part this morning and it does seem that clause 16 is of the same nature as the Full Bench found in Schefenacker, not to pertain to the relationship in section 170LI and therefore, I think, in all the circumstances, ladies and gentlemen, I have to refuse to certify the agreement this morning on the basis that the Commission doesn't have an application made in accordance with Division II. Section 170LT makes it clear that - sorry, let me retract that, but there not being an application in accordance with Division II, the Commission isn't able to go on and to consider the other alternatives. I dismiss the application. The Commission will adjourn.

<ADJOURNED INDEFINITELY [9.44AM]