AG2008/1562, Transcript of Proceedings [2008] AIRCTrans 854 (30 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19567-1

SENIOR DEPUTY PRESIDENT LACY

AG2008/1562

cl.2A(1)(b) Sch. 7 - Application for an order to vary pre-reform certified agreement

Herald and Weekly Times Limited
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(AG2008/1562)
Herald and Weekly Times Pty Ltd - AMWU Maintenance Agreement 2005

(ODN AG2006/2385)
[AG846055 Print PR967672]]




Sydney

2.47PM, TUESDAY, 16 DECEMBER 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

MR R WEST: I appear for the applicant, with me MR J FRAZER.

PN2

MR P LARKINS: I appear for the CEPU and I appear - - -

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. I understand that there is another party to come and not present yet?

PN4

MR WEST: No, not present yet, your Honour. I believe there is someone on the way and they should be here - - -

PN5

THE SENIOR DEPUTY PRESIDENT: I intend to proceed because I have another scheduled flight to catch. Mr West, are you going to deal with the matter?

PN6

MR WEST: Yes, I will, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: You can remain seated, Mr West, because of the - - -

PN8

MR WEST: Yes, thank you, your Honour. First of all, on behalf of the parties, your Honour, we thank you for listing this matter for our convenience, I appreciate you having done so.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN10

MR WEST: It has, to some extent, been following the papers, a little bit disrupted ..... Hopefully your Honour will have an application for an order varying the agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN12

MR WEST: And copies of the written statement acquired for the variation and signed by the ..... and then by the ETU .....

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN14

MR WEST: And statutory declarations by both Mr Frazer and Mr .....

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR WEST: And a draft order, is that - - -

PN17

THE SENIOR DEPUTY PRESIDENT: I have that, yes.

PN18

MR WEST: Yes. Your Honour, if I could briefly explain the background circumstances to this application. In 2005 the Herald and Weekly Times negotiated two separate agreements covering the maintenance employees at its ..... printing site. There was a separate agreement covering the production employees ..... workers, but in relation to the maintenance department there was an agreement negotiated with the ETU, the electrical employees and a separate agreement with the AMWU in respect of the fitters.

PN19

There's roughly I think 32 fitters and 22 electricians on the site. While the negotiations were separate and ultimately two separate agreements were certified under the old Act they were in, for all intents and purposes, identical terms and there's a few minor differences which are not material. This time around negotiations have been jointly conducted and an agreement reached between the company and both unions as to the common terms and conditions to apply to both fitters and electricians on the site and it's the desire of the parties and the desire of the employees themselves that we proceed to have one agreement covering both electricians and fitters to which both the AMWU and the ETU are parties.

PN20

We've sought to achieve that outcome by making this application to vary and extend the AMWU agreement, first of all to incorporate the agreed terms and conditions that were negotiated in the negotiations and secondly to extend the scope of the agreement to beyond the fitters to include the electricians who were previously subject to the ETU agreement and to vary the parties to incorporate the ETU as a party. If this application is granted, I think the intention of the parties, your Honour, is that if this application is granted then the parties will apply by consent to cancel the ETU agreement so that going forward there'd simply be one agreement.

PN21

So, your Honour, on the basis of the written material that's been filed on behalf of Mr Frazer on behalf of the company supported by the statutory declaration of the ETU we would submit that the statutory test provided for in clause 2A of schedule 7 of the Act is made out in that the parties have genuinely agreed to the variation and extension. In that respect both the members of the AMWU, the fitters, have approved the variation and also the electricians have approved the variation as well as have their respective unions. There has been, we can confirm and the statutory declaration attests to the fact that there has been no industrial action or protected ballot orders sought, that there is no reduction in conditions of employment, the agreement provides for an enhancement of the previous agreement and finally that there is a valid majority of the employees bound by the agreement, by the ETU agreement approved the making of the extension and variation and that the provision is for an extension of three years which is no more than the three year period.

PN22

I apprehend that your Honour may have an issue with the change of name of the agreement, being aware of your decision in the Mobil refining case in September 2008. In relation to that all I can say is that we would submit that the name of the agreement is provided for in one of the clauses, in clause 1.1. It provides that the agreement currently, that the agreement is entitled The Herald and Weekly Times Pty Ltd AMWU Maintenance Agreement and the variation seeks the variation to the clause to change the name to The Herald and Weekly Times AMWU/ETU Maintenance Agreement.

PN23

We would submit that the title clause, clause 1.1 is a term of the agreement and can be varied in that way.

PN24

THE SENIOR DEPUTY PRESIDENT: Why doesn't it make it a different agreement if you give it a different name, a new agreement?

PN25

MR WEST: We would submit that it's not a different agreement. It's simply giving it a different title.

PN26

THE SENIOR DEPUTY PRESIDENT: But do you have any authority on that?

PN27

MR WEST: No, your Honour, I don't other than I believe Commissioner Cargill in a decision under the previous Act, under section 170MD, that's print Q9603, a case involving the Southern Cross University Enterprise Agreement at 11 December 1998, it was an application to vary that agreement under the previous Act provisions and Commissioner Cargill summed up in the second paragraph the substance of the application as follows:

PN28

The substance of the application in this matter is somewhat unusual. The proposed variation involves the addition of two new parts to the existing agreement. The first of these contains four clauses comprising a new title, a new arrangement clause, a new parties bound clause and a clause relating to the operation of the agreement of which does not differ from the relevant provisions in the existing agreement.

PN29

And then there are other parts she refers to and at the end of the matter she approved the application as sought. That's the only case I'm aware of in which the title has been changed, your Honour. I understand your reasoning in the Mobil Oil case where you formed the view that it didn't form the term of the agreement. All we can say to that is that there is a clause of the agreement dealing with the title and in that respect, we would respectfully submit that that could be regarded as a term and therefore capable of variation.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. I think what I said in that decision was something about a term affecting the conditions or the terms and conditions of employment themselves, didn't I?

PN31

MR WEST: I hesitate to read your words back to you, your Honour, but you said at paragraph 13 of that decision:

PN32

I accept that it was submitted the power to vary the agreement is the same as the power to vary the terms of the agreement. I'm satisfied also that to vary the terms of the agreement is to change them in part by addition by excision, by modification or by substitution, by qualification or otherwise. The terms of the agreement must mean however the contents of the agreement, as those contents prescribe the rights and obligations of the persons governed by the agreement or affected by, the question is whether the name or a title and commencement provisions of the agreement falls in that description. I think not.

PN33

My submission here is that I'm not aware of what the exact structure of that particular agreement was, but in this case all I can draw to your attention, your Honour, is that the title is in clause 1.1 and we would submit that it is part of the terms of the agreement.

PN34

THE SENIOR DEPUTY PRESIDENT: All right. Well, what about the addition of new parties?

PN35

MR WEST: Yes, your Honour. There are two real aspects of this which this application raises. The first is the extension of the agreement, the scope of the agreement to cover employees who were not previously covered. Does your Honour require me to address you on that point or - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Well, I'll come back to that, but I would like to do first of all is just look at the issue about the parties.

PN37

MR WEST: Yes. Well, your Honour, there are a number of decisions in which the Commission has been prepared to extend the scope of the agreement to cover persons who - or to extend the scope to persons who are not previously covered. The decision of Commissioner Cargill under the previous Act was one to which I have previously referred. In that case the extension of the Southern Cross University agreement was varied to extend the inclusion of the new section to relate to general staff and that was approved by her under that Act.

PN38

There was also a decision of Senior Deputy President O'Callaghan in a matter related to the City of Unley, a recently decision in which he says at paragraph 34, this is print PR962427 - sorry, that's the number of the agreement itself, I'm sorry. It's a decision of Senior Deputy President O'Callaghan, 17 September 2008 and the only reference I have is 2008 AIRC725, not an actual print number.

PN39

THE SENIOR DEPUTY PRESIDENT: That's right. That's okay.

PN40

MR WEST: It may be AG2008/1204.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN42

MR WEST: And at paragraph 34 he said:

PN43

I do not consider that there is anything in the mandatory prerequisite specified in clause 2A which bars the parties to an agreement reached under section 170LJ of the pre reform Act from changing the employees to whom the agreement has application. Such a change may simply occur over time and certain work functions may cease or be added additionally the specific terms of an agreement may apply only to classes of employees, but the operation of the business or the wishes of the employees may change and may result in changes to these arrangements. An example might demonstrate these evolutionary changes. A business may have an agreement which applies to its employees generally and hence would include cleaning staff. The cleaning function may be contracted out such that agreement variations being considered, cleaning functions might be excised from the agreement. In these circumstances it's difficult to conceive such a change to the employees to whom the agreement made the application which say change the character of the agreement.

PN44

So in that case his Honour, Senior Deputy President O'Callaghan was satisfied that he could change the employees to whom the agreement applied which is consistent with the approach of Commissioner Cargill. Commissioner Hoffman reached a similar conclusion - sorry, I'll come to Commissioner Hoffman's decision in a moment. Now, I've already mentioned, your Honour, that in the Southern Cross University case Commissioner Cargill had - sorry, I'll come back to that one. My apologies, I'm flipping from case to case.

PN45

THE SENIOR DEPUTY PRESIDENT: That's all right.

PN46

MR WEST: Senior Deputy President O'Callaghan in the City of Unley case did specifically make a comment at paragraph 29 to say that:

PN47

Accordingly I've concluded that this variation proposed does not seek to change the parties as they are defined in both the pre reform Act and the 2005 agreement itself. Had this been the case I may have arrived at a very different conclusion to that detail below.

PN48

Now, he doesn't go on to expand on that provision other than to reach his conclusion that he could change the scope of the agreement and he doesn't really say definitively one way or the other whether changing the parties would have caused him to have another view. He just says that's a possibility. Commissioner Hoffman, however, in a decision, print PR921970, which is the National Transport Operations - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Sorry, what was the print number again, Mr West?

PN50

MR WEST: Yes, that's okay, PR921970.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MR WEST: A decision of National Transport Operations Pty Ltd Certified Agreement 2002 and Commissioner Hoffman of 30 August. Now, this is a decision also under section 170MD of the previous Act, but that was a matter involving an application to vary the persons bound clause of the agreement to include a number of associated companies and the Commission concluded that it was satisfied that he could so vary the agreement under that provision to extend coverage. He also made some other decisions in relation to that agreement, particularly its coverage in relation to independent contractors, or independent contractor clauses.

PN53

The decision to vary the agreement was appealed to the Full Bench in a decision, print number PR932348, of June 2003, of the Full Bench comprising Seniors Deputy President Harrison and Duncan and Commissioner Richards. Now, the appeal was decided on the basis of the application of the agreement to independent contractors of basically an Electrolux type point, but one of the grounds of appeal was this issue about extending the agreement to new parties and at paragraph 48 the Full Bench said:

PN54

We have decided that we will not deal with the argument of the TWU that the variation added, as it did, several of the respondency agreement is not one that could be made or approved consistent with the provisions of section 170MD of the Act.

PN55

So notwithstanding that that was raised as one of the grounds of appeal, the Full Bench let it pass, if you like, without comment. I'm not sure how much your Honour should read into that. I can submit that had the Full Bench seen a problem with it, it might well have been expected to comment on that since the issue was squarely before it and in that sense I think your Honour can safety rely on at least tacit endorsement of the approach on that point by Commissioner Hoffman by dint of the silence of the Full Bench on the issue.

PN56

Now, in this case the addition of the EPU is really, in our submission, a consequential change associated with the extension of the scope of the agreement to cover electrical workers. The company's submission is that the agreement, if it's extended to cover employees, then the Commission should allow for the variation to extend to include those employee unions to also be party to the agreement and that's consistent with the objects of both the pre reform Act and the current legislation which specifically provides section 3 for employees to ensure Freedom of Association, including the rights of employees and employers to join an organization or association of their choice and it would be consistent with that general right of employees to be able to be represented by the union in relation to an agreement if the scope were extended.

PN57

So on the basis of the general approach that Commissioner Hoffman adopted, we would say it hasn't been approved by the Full Bench on appeal and consistent with the objects of the Act if the Commission is satisfied that it can extend the scope of the agreement, we would submit it can also add to the agreement the union representing those employees as a party.

PN58

THE SENIOR DEPUTY PRESIDENT: All right. Well, look, there are, as you've noted, a number of provisions been inserted into the agreement that transferred or translated from the other agreement and this is I suspect to pick up the existing terms and conditions for those employees that will now be subject to this agreement if it's approved, or the variation is approved. Tell me, if I was prepared to approve the extension to the - or the scope clause, if you like, but not the parties bound, what would be the position of the parties then?

PN59

MR WEST: Well, your Honour, we briefly discussed that before the matter commences today. If that be your Honour's view then we would seek an opportunity to amend the application so that it would proceed as simply a variation for the fitters and seek to vary the electrical agreement in the same terms, in other words, to have a mirror agreement effectively to the electricians with the ETU as a party.

PN60

THE SENIOR DEPUTY PRESIDENT: So you'd vary both agreements?

PN61

MR WEST: Yes. On the basis that it's not the company's desire and I'm sure not the union's either that employees be bought under the agreement without their union being a party to it.

PN62

THE SENIOR DEPUTY PRESIDENT: And I mean, I haven't decided yet, but if I was to allow those variations, but not the variation to the change in the name, what would be the position of the parties?

PN63

MR WEST: I think we adopt those by any other name, your Honour, and we could live without a name change, but not without the change of party and I think if your Honour were minded to do that, to not change the party, then probably, as your Honour pointed out in the Mobil case, your Honour has a discretion to grant the application in part, and the union can speak for itself on this, but probably the expedient course might be that your Honour simply grant the application to the extent necessary to vary the agreement for the AMWU and its members and leaving the parts related to the ETU and the electricians out of the variation, so that the subsequent application to vary their agreement can be made. That might be the more expedient course.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR WEST: But we haven't discussed that, so the union may have a different view about that.

PN66

THE SENIOR DEPUTY PRESIDENT: I understand. That would mean, though, removal of some of the changes that are made in this agreement, would it, or is it intended in any event to make them mirror images completely?

PN67

MR WEST: The intent is clearly to be a mirror image, I think, isn't it? Yes.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. Save that I suppose there are some provisions in here that wouldn't be necessary like the provisions related to - - -

PN69

MR WEST: It possibly would. Well, bearing in mind that there may be a couple of minor changes, it perhaps might be appropriate if we had an opportunity, when your Honour formed a view that it is to the effect that we can't do what we're asking, we have an opportunity to review the application before you finalise your decision, if that's possible.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Now, I understand you wanted this dealt with urgently, is that right?

PN71

MR WEST: If your Honour's able to deal with it today on the basis of the submissions we would be grateful.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Did you want to say anything more at this stage, Mr West?

PN73

MR WEST: No, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Larkins?

PN75

MR LARKINS: We would just support the submissions made by my friend. We don't really have anything further to add, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: And you support the additional submission made in relation to the alternative courses that might be available?

PN77

MR LARKINS: Yes, we would. We would not favour the scope being varied if we were not a party. We would prefer to deal with that separately, if that's your Honour's view.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, all right, thank you. Has the AMWU representative arrived?

PN79

MS E ROBERTS: Yes, I'm sorry for being late, your Honour. I have come in late but my instructions are that we support the application, the submissions that have been made.

PN80

THE SENIOR DEPUTY PRESIDENT: Could you tell me who you are, please?

PN81

MS ROBERTS: Ellen Roberts.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Roberts, and were you present when I discussed with Mr West the possible alternatives on my view on some of these provisions in relation to the scope clause and the parties bound and the name of the agreement?

PN83

MS ROBERTS: I could seek instructions. My understanding though is that we would prefer to obviously have the ETU as a party. In relation to what the course of action would be today about approving the AMWU agreement, I'd just have to get further instructions on that, on going forward with the fitters' variation.

PN84

THE SENIOR DEPUTY PRESIDENT: I see. Well, in any event, Mr West has suggested that if I do decide not to allow the variation in respect of the union or the scope clause, that the parties ought to have another opportunity to reconsider the application. Is that right, Mr West?

PN85

MR WEST: Yes, your Honour, if that's convenient.

PN86

THE SENIOR DEPUTY PRESIDENT: All right. Anything else?

PN87

MR WEST: That's all, your Honour. I understand that the paper work requires the addition of simply a statutory declaration of the AMWU. I'm not sure whether that's at - - -

PN88

MS ROBERTS: You don't have a statutory declaration from us? Okay, I'll have to go and get that.

PN89

THE SENIOR DEPUTY PRESIDENT: I think - - -

PN90

MR WEST: We can arrange for that to be filed and if necessary sent up to you.

PN91

THE SENIOR DEPUTY PRESIDENT: That's the AMWU one? Is that right, the AMWU one? Yes, it says it's going to be faxed.

PN92

MR WEST: Yes.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes, all right. What I'll do is I'll reserve my decision and rather than have the parties wait around here I'll get back to, or my associate will get back to you, Mr West, will that be all right, and inform you of the - - -

PN94

MR WEST: Yes, and I'll communicate with the other parties, your Honour.

PN95

THE SENIOR DEPUTY PRESIDENT: Yes, all right, and inform you of my decision and if I'm going to allow all of the variations, that's not going to cause a problem, subject to some minor issues with the terms of the order, but otherwise there shouldn't be any real difficulty. But if, as may be the case I find that I can't make the variations to the scope clause or the parties bound, then we will allow the parties the opportunity to have further discussions about which way they wish to proceed.

PN96

MR WEST: Yes, thank you, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: In any event, we'll let you know this afternoon.

PN98

MR WEST: Thank you.

PN99

THE SENIOR DEPUTY PRESIDENT: Thank you for your attendance and thank you for your helpful submissions, Mr West, and the authorities that you provided. The matter is adjourned.

<ADJOURNED INDEFINITELY [3.17PM]