AG2011/5253, Transcript of Proceedings [2011] FWATrans 96 (8 February 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 38477-1

COMMISSIONER LEWIN

AG2011/5253

s.185 - Application for approval of a single-enterprise agreement

Application by MFCT Pty Ltd as trustee for Mildura Fruit Company Trust
(AG2011/5253)





Melbourne

TUESDAY, 1 FEBRUARY 2011

PN1

THE COMMISSIONER: Good morning. I’ll take the appearances, please.

PN2

MR P. REILLY: If the tribunal pleases, Reilly, initial P, appearing on behalf of the Australian Workers’ Union, and with me is MR P. WOOD.

PN3

THE COMMISSIONER: Thank you, Mr Reilly.

PN4

MR J. ANDREWS: Thank you, Commissioner. Andrews, initial J, appearing on behalf of the Victorian Employers’ Chambers of Commerce and Industry, and with me I have MR P. HILL from the Mildura Fruit Company.

PN5

THE COMMISSIONER: Was VECCI - refresh me, was it a bargaining agent?

PN6

MR ANDREWS: To my knowledge, no, Commissioner. We weren’t appointed as the bargaining agent in writing to act on behalf of - - -

PN7

THE COMMISSIONER: But you’re their representative for the purpose of the filing of the application. So you’re actually seeking leave to appear on behalf of the company, aren’t you?

PN8

MR ANDREWS: Yes, Commissioner, we are.

PN9

THE COMMISSIONER: Yes. Is there any objection to that?

PN10

MR REILLY: No, Commissioner.

PN11

THE COMMISSIONER: Leave is granted. Good, thank you. I understand the parties are interested in discussing this matter to see whether or not the issue raised by the AWU – who I think are probably an intervener also, aren’t you, Mr Reilly, or are you a bargaining agent?

PN12

MR REILLY: The AWU was a bargaining agent appointed to negotiate.

PN13

THE COMMISSIONER: Bargaining agent. Yes, all right. That may be satisfied. The issue raised by the AWU actually came under my notice when I actually read the application and the papers, which was the question of the fact that apparently there’s a large number of casual employees employed at certain times during the year by the employer and that a relatively small number of employees actually participated in the ballot. I didn’t reach any conclusions about that but it’s something that did come under my notice.

PN14

The issue raised by the AWU can only arise under the statutory provisions as to the making of the agreement, the procedures that are required for the making of the agreement. The issue only becomes substantial if the statutory requirements have not been met. So that is the question, essentially, that’s before the tribunal. If the statutory requirements have not been met the agreement cannot be approved. I refrain from alluding towards a conclusion about that question, particularly after having received the communication from the AWU requesting a hearing because, in my view, it was appropriate to conduct an attendance hearing in relation to the application for the approval of the agreement prior to reaching any such conclusion. So I suggest that the appropriate procedure is for the AWU to advise as to what statutory provisions, if any, have not been satisfied.

PN15

MR REILLY: Thank you, Commissioner. The AWU’s position is that section 180(2) has not been satisfied in that the - - -

PN16

THE COMMISSIONER: Sorry, just before you go ahead, have you received a copy of an email from Mr Russell Whitcomb addressed to my chambers?

PN17

MR REILLY: No, I have not, Commissioner.

PN18

THE COMMISSIONER: Dated Friday, 28 January. Does the company have a copy of that that it can provide to Mr Reilly? Mr Reilly, this is effectively the submission on this point. It’s not clearly expressed as such but it constitutes as a relevant submission in relation to the reasonable steps. I take it you’re aware of this, Mr Andrews, this email.

PN19

MR ANDREWS: Of the email, yes. That’s the attachment. You’ve got - - -

PN20

MR REILLY: I’ve just had a quick read of that, Commissioner. I would say that our concerns regarding the employer discharging its obligations under subsection (2) of section 180 aren’t really resolved by this.

PN21

THE COMMISSIONER: They’re not?

PN22

MR REILLY: No.

PN23

THE COMMISSIONER: Well, given that all the local casual staff were advised – and presumably they were in a position to vote. Is that right, Mr Andrews? Were they provided with ballot papers?

PN24

MR ANDREWS: Commissioner, maybe I’ll just explain the process that occurred.

PN25

THE COMMISSIONER: But can you answer that question before you do?

PN26

MR ANDREWS: Were they provided - - -

PN27

THE COMMISSIONER: The people who were invited to attend that meeting, were they provided with an opportunity to vote; not a ballot paper, rather, it was an attendance ballot, was it?

PN28

MR ANDREWS: It was a postal - - -

PN29

THE COMMISSIONER: Were they given a ballot paper?

PN30

MR ANDREWS: All employees who attended the meeting were given a ballot paper. They were posted a ballot paper after the meeting.

PN31

THE COMMISSIONER: So all the local casuals who were invited to the meeting - - -

PN32

MR ANDREWS: That’s correct.

PN33

THE COMMISSIONER: - - - and all the persons who attended were provided with a ballot paper but not all of the local casual employees.

PN34

MR ANDREWS: That’s correct. If I may further clarify that though, Commissioner.

PN35

THE COMMISSIONER: Yes, you can start where you wish to now.

PN36

MR ANDREWS: So the employer contacted all the local casuals. What we say is, Commissioner – and you’ve already alluded to the fact – is that the nature of the industry is such that there’s a core group of casuals who are employed, I guess, on a seasonal basis. They tend to live in the area and they come back year after year. The workforce is supplemented each year by - - -

PN37

THE COMMISSIONER: Itinerant casuals.

PN38

MR ANDREWS: That’s right, who may be from England on visas or backpacking or - - -

PN39

THE COMMISSIONER: Or they might come from another country town somewhere else looking for work.

PN40

MR ANDREWS: They could be from anywhere. So the employer felt that those employees who were seasonal casual employees should have the right or be given the opportunity to vote on the agreement, given that it could well be argued that they’re employees, even though they’re weren’t currently working at the time. So the employer contacted all of those employees – I think there’s around 60 of them in the area – and they sent them the notice which was sent in with the agreement application, Commissioner. I think you should have a copy of that. It looks like that. It was attached to the application for approval of the agreement.

PN41

THE COMMISSIONER: The original application. Yes, I recall that.

PN42

MR ANDREWS: That’s right, yes. So that notice was sent out to all of those employees. If we turn to that notice I might just point out a couple of areas of that notice of importance. I must say, before I do go to that notice, Commissioner, my understanding is that there was a consultative committee meeting in which Patrick of the AWU was involved and my understanding – my friend can correct me if I’m wrong but I understand that this was discussed and it was agreed, or the employer certainly feels that it was agreed that this was the method that they all agreed was the best way to canvass the employees about the agreement. So that note says – if I just read from that note, Commissioner, from the fourth paragraph:

PN43

You are invited to a brief meeting at 5.30 pm on 15 December to hear an explanation on the changes in the new agreement. Patrick Wood from the AWU will also be present and you can ask questions about those changes. You will receive a copy of the draft agreement at the meeting.

PN44

It then goes on to say:

PN45

If you can’t come to the meeting on 15 December you can collect a copy of the draft agreement from MFC reception from 13 December through to 17 December.

PN46

The note then goes on to talk about the next step which is for people to vote on the agreement. It says:

PN47

The agreement must then be supported or rejected and you can’t change individual clauses.

PN48

So just a bit of explanation there, Commissioner. Then, importantly, the notice goes on to tell employees how the vote will take place. So it says:

PN49

MFC will post a ballot paper to all people who either attend the 15 December briefing or collect a draft agreement.

PN50

So my understanding is they took the names of those employees who attended the meeting. They took a list of those and then posted all of those people a postal ballot, and they also took the names of people who attended the site on another day to collect the agreement and sent those people a notice. So there was another six employees who came into the office to collect one.

PN51

THE COMMISSIONER: So all the local casuals were given the opportunity to vote.

PN52

MR ANDREWS: That’s right. The last point, Commissioner, is that the notice also says:

PN53

You can return post your vote or attend the MFC office and vote in person. Voting closes 5 pm, Thursday, 6 January.

PN54

So even if you didn’t attend the meeting and you didn’t collect a postal ballot to send back, Commissioner, the notice clearly states that you can attend the office in person and have an opportunity to vote.

PN55

THE COMMISSIONER: All right, thank you. Mr Reilly.

PN56

MR REILLY: Thank you, Commissioner. The act requires that the employer must take all reasonable steps to ensure that during the access period of the agreement the employees who will be covered by the proposed enterprise agreement are given a copy of - - -

PN57

THE COMMISSIONER: No, that’s employees employed at the time who will be covered by the agreement. Now, let’s leave to one side, as a matter of detail albeit a somewhat important detail, the question of whether or not the local casuals were employed at the time. Let’s just leave that to one side and let us assume that they were for the sake of argument.

PN58

MR REILLY: Well, we would say that they were employed at the time.

PN59

THE COMMISSIONER: Let’s assume that.

PN60

MR REILLY: Okay.

PN61

THE COMMISSIONER: I may need to reach a conclusion about that. So we’ll approach it hypothetically.

PN62

MR REILLY: Okay. Anyway, under the act the employer is required to take all reasonable steps to ensure that during the access period employees are given a copy of the written text of the agreement and any other material incorporated they reference in the agreement or, alternatively, the relevant employees have access throughout the access period to a copy of those materials. The only step taken by the applicant to ensure that during the access period employees were given a copy of the text of the agreement and any other material incorporated was to post this notice to the employees advising that they could come and collect the agreement.

PN63

The period over which the agreement could be collected was between 13 and 17 December. This is a period over which casual employees are not rostered to work for the applicant and who therefore may be working at other jobs, may be away on holidays or may otherwise be unable to attend at the applicant’s premises over that time. If an employee did not collect a copy of the agreement between 13 and 17 December the employee had no way of getting a copy of the agreement. Given that the applicant was able to post a notice about the meeting out to its employees, we say that it would have been reasonable for the applicant to post a copy of the agreement out to the employees who had not been able to come in and collect a copy. Therefore we would say that the applicant didn’t take all reasonable steps to ensure that the employees were given a copy of the agreement.

PN64

Further, employees who went to the applicant’s premises to collect a copy of the agreement were not given a copy of the Horticulture Award which is expressly incorporated into the agreement in clause 3 of the agreement, Relationship to Existing Awards. So we would also say that the applicant did not take all reasonable steps to ensure that the employees were given a copy of the incorporated materials. Alternatively, an employer can take all reasonable steps to provide access to those documents throughout the access period. The only access provided was at the site between the 13th and 17th and, as I said, during this time casual employees were not rostered to work for the applicant. So we would say that sole step is not sufficient to discharge the applicant’s obligation to take all reasonable steps to make the agreement available.

PN65

In support of that we would refer to the decision of Deputy President Bartel in Drake Cleaning Services, found at paragraph 15. I can provide a copy of the decision if it would be of assistance to the tribunal. At paragraph 15, Commissioner, the Deputy President found that the access to relevant materials referred to in section 180(2)(b) of the act – it’s not access at large but

PN66

must be reasonable access, having regard to the circumstances of the employees and in the context of their employment arrangement.

PN67

Given that the casual employees were not rostered over this period, we would say that the access provided was not reasonable. Further, the access period is defined at section 180(4) of the act as the seven-day period ending immediately before the start of the voting process referred to in section 181(1). According to the applicant’s form F17 the voting process commenced on 24 December, thus the access period was the period from 17 to 23 December. Given that the only access to the documents provided was between 13 and 17 December, we would say that the applicant failed to actually provided the access during the access period as defined by the act.

PN68

THE COMMISSIONER: Just go over that again. What are the comparative variables in the dates?

PN69

MR REILLY: The access period as defined by the act is the seven - - -

PN70

THE COMMISSIONER: In this case.

PN71

MR REILLY: In this case?

PN72

THE COMMISSIONER: 17 to 23.

PN73

MR REILLY: 17th to 23rd, and the access provided by the employer was the 13th and the 17th. So it was only five days access and only one of those days overlapped with the proscribed seven-day access period. So for these reasons we would submit the applicant did not comply with its obligations under section 180(2). Section 188(a)(i) of the act provides:

PN74

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that the employer has complied with section 180(2).

PN75

Section 186(2), paragraph (a) of the act requires that:

PN76

Where application has been made for approval of an enterprise agreement, the tribunal must be satisfied that the agreement has been genuinely agreed to.

PN77

We would submit that as section 180(2) has not been fulfilled, FWA cannot be satisfied that the agreement has genuinely been agreed to and, as such, FWA should not approve the agreement. If the tribunal pleases.

PN78

THE COMMISSIONER: Mr Andrews.

PN79

MR ANDREWS: Thank you, Commissioner. There’s a number of issues, I guess, that our friends have raised which I’ll deal with. To start with, I think we need to talk about this conclusion that our friends have drawn that there was no way of accessing a copy of the agreement for those employees outside the 13th to the 17th. With regard to that, the agreement was available after the 17th for all employees. The employees simply were given a number of days. Due to the nature of the access period starting, the employer has tried to ensure that the employees had a copy of the agreement prior to the beginning of the access period. So we’ve said, “Between the 13th and the 17th you can come and pick up a copy of the agreement.” However, Mr Hill advises me that there were a number of copies of the agreement available after that period and an employee could have simply either rung up - - -

PN80

THE COMMISSIONER: Are we able to establish whether anybody did access the agreement during the access period as a matter of fact?

PN81

MR ANDREWS: Six employees came in.

PN82

THE COMMISSIONER: It’s a question of when they came in order to support your submission that the access was being provided notwithstanding the notice. There’s a little bit of a point here about whether or not people acted on the notice or not, but nevertheless. What you’re saying is that as a matter of fact, contrary to the inference in the notice, you’re saying that access was available during the access period.

PN83

MR ANDREWS: That’s right, Commissioner.

PN84

THE COMMISSIONER: But can we establish that as a matter of fact?

PN85

MR ANDREWS: That access was available?

PN86

THE COMMISSIONER: Yes. Is there a means by which you can evidence that fact?

PN87

MR ANDREWS: Well, if I can call Mr Hill - - -

PN88

THE COMMISSIONER: All you need to do is say yes, there is, and what it is.

PN89

MR ANDREWS: Well, yes, Commissioner, Mr Hill is happy to give that evidence.

PN90

THE COMMISSIONER: And can he give evidence to the effect that an employee – identify an employee who did access the material during the access period?

PN91

MR ANDREWS: Yes, he can, Commissioner.

PN92

THE COMMISSIONER: That’s all I want to know. So you can prove that access was provided during the access period as a matter of fact.

PN93

MR ANDREWS: Absolutely, we can, yes, and that a number of employees in fact - - -

PN94

THE COMMISSIONER: Did access the agreement.

PN95

MR ANDREWS: - - - did access the agreement during the access period.

PN96

THE COMMISSIONER: While it was made available. All right.

PN97

MR ANDREWS: Actually, Commissioner, what we’d say is the agreement was available before the access period.

PN98

THE COMMISSIONER: I understand that.

PN99

MR ANDREWS: If I go to another point, my friend has, I guess, submitted that the access period was only from the 17th to the 23rd.

PN100

THE COMMISSIONER: You’re saying no, that was an additional access period.

PN101

MR ANDREWS: That’s right. The agreement was available for the entire access period.

PN102

THE COMMISSIONER: That’s the question, as a matter of fact, whether it was or wasn’t.

PN103

MR ANDREWS: That’s right, and we’re saying that it was, Commissioner.

PN104

THE COMMISSIONER: I understand that. You say you can bring that to proof.

PN105

MR ANDREWS: Yes, Commissioner.

PN106

THE COMMISSIONER: Right.

PN107

MR ANDREWS: I guess if we move onto a point – I will also say, Commissioner, that a copy of the award was also available at the employer’s premises had an employee requested a copy of the award. My understanding is the award was incorporated – well, the Horticulture Award anyway - - -

PN108

THE COMMISSIONER: Was the award available in any particular situation or circumstance at the employer’s premises? Was it on a noticeboard, was it in a file or what?

PN109

MR ANDREWS: No, it was just – if an employee asked to see a copy of the award they would be given access to a copy. There was an agreement in place prior to this proposed agreement and it, I’m assuming, was available.

PN110

THE COMMISSIONER: The prior agreement, you’re saying, was available?

PN111

MR ANDREWS: So the new award was available when it came. It was available, Commissioner. To our knowledge, Commissioner, no-one asked for a copy of the award. The employees had previously been employed on an enterprise agreement. So their terms and conditions of employment were really taken from that previous enterprise agreement and the award wasn’t really what would be referred to as the industrial instrument that those employees were employed on.

PN112

If I turn to the case, Drake Cleaning Services, that my friend has referred to. We say, Commissioner, that point 15 really goes to say that – I mean, if you read point 15 it says:

PN113

Access to other materials referred to in 180(2)(b) of the act is not access at large but must be reasonable access, having regard to the circumstances of the employees and in the context of their employment arrangements.

PN114

Now, as we’ve already stated, the employment arrangements in this circumstance was unusual. They’re not employees who are working in factory five days a week or they’re not employees who are in an office building five days a week or seven days a week. They can’t be handed an agreement when they walk out the door on Friday afternoon. These employees are seasonal employees, none of which were working at the time of the vote.

PN115

THE COMMISSIONER: I understand the point you’re making. The issue there was the locality of the access.

PN116

MR ANDREWS: Well, we’re saying, Commissioner, that in the circumstances the access that was provided to employees was reasonable.

PN117

THE COMMISSIONER: I understand that. I’m just focusing rather narrowly on what the import of my colleague’s decision is, and in particular the axis of reasoning in paragraph 15 relied upon. When one looks at that one sees that what was on the mind of Deputy President Bartel was the locality of the access.

PN118

MR ANDREWS: That’s right. We would say - - -

PN119

THE COMMISSIONER: That’s not an issue in this matter because those facts, whereby people have a job and finish elsewhere than the employer’s premises, are not the relevant facts.

PN120

MR ANDREWS: No, that’s right, Commissioner. We say, well, that’s not the - - -

PN121

THE COMMISSIONER: Therefore there’s no analogy of reasoning.

PN122

MR ANDREWS: No. That’s my point, Commissioner.

PN123

THE COMMISSIONER: Right. It’s not as if you’re cleaning some premises in Collins Street, Melbourne and the employer’s premises are in - - -

PN124

MR ANDREWS: Richmond. No, that’s right, Commissioner.

PN125

THE COMMISSIONER: Or Brunswick or - - -

PN126

MR ANDREWS: No. There’s not another place of work that the employer could go to hand out copies of the agreement. The facts of this case are that the employees weren’t working and they may not have been in the town or in the state or in the country.

PN127

THE COMMISSIONER: But these employees, they work at the premises.

PN128

MR ANDREWS: They do work at the premises when they work but they only generally work between one and four months a year.

PN129

THE COMMISSIONER: I understand that but where they do work is at the premises.

PN130

MR ANDREWS: That’s right. And that’s where the agreement was made available. I’m not sure, Commissioner, whether there’s any confusion about the access period. To me, my friend seemed to be saying that the agreement was still available on the 17th and voting could commence on the 23rd but the act simply says that the agreement must be available throughout the access period. It doesn’t have to be made available prior to the access period beginning.

PN131

THE COMMISSIONER: Yes.

PN132

MR ANDREWS: Prior to the access period - - -

PN133

THE COMMISSIONER: I think that’s what Mr Reilly is saying is that it wasn’t. If you acted, for instance, as the notice infers, you may have thought that the only access was between 13 and 17 December.

PN134

MR ANDREWS: Well, we say, Commissioner - - -

PN135

THE COMMISSIONER: We must rely on the inference that access is limited to those days, according to the notice.

PN136

MR ANDREWS: Well, Commissioner, potentially access to pick it up. It may be inferred, potentially, access to pick up was only available till the 17th but we say - - -

PN137

THE COMMISSIONER: As a matter of fact it wasn’t confined to that date.

PN138

MR ANDREWS: Yes, we say as a matter of fact, that’s right, it could have been picked up at any other time.

PN139

THE COMMISSIONER: No, I understand that point.

PN140

MR ANDREWS: Nothing further.

PN141

THE COMMISSIONER: All right. Well, let’s address this question of whether these persons who were provided with these notices and invited to attend the meeting and offered the opportunity to access what was provided were actually employees employed at the time. I’ll hear on that, Mr Reilly. Why were they employed at the time? Bearing in mind this is a statutory provision, it’s going to have to be interpreted strictly, isn’t it, or is there something in the explanatory memorandum that would expand it to the type of employees that are involved in this matter?

PN142

MR REILLY: Sorry, just give me a moment, Commissioner.

PN143

THE COMMISSIONER: I mean, most of the authority – and it seems to me a fairly orthodox position – is that a casual employee’s employment comes to the end of each engagement. Isn’t that the nature of a casual employment engagement, that it begins and ends at each commencing and finishing time of an engagement?

PN144

MR REILLY: I suppose this is an exceptional circumstance in that it’s - - -

PN145

THE COMMISSIONER: That can’t work if it’s a statutory provision, can it? I mean, I can’t redefine the law because of the circumstances. I don’t have any judicial power in that respect.

PN146

MR REILLY: If that’s the case we would say that the agreement should still not be approved then because it hasn’t been voted on by employees who would be covered by the agreement, because there are no employees who would be covered by the agreement. Therefore the only way the agreement could be approved would be to wait until the - - -

PN147

THE COMMISSIONER: So this is 181(1).

PN148

MR REILLY: Yes, Commissioner.

PN149

THE COMMISSIONER: Well, why were there no employees employed at the time? My understanding is that there were employees employed at the time.

PN150

MR REILLY: My understanding is that there were no casual employees employed at the time.

PN151

THE COMMISSIONER: Yes, but doesn’t it mean that that’s not a condition precedent to there being employees employed at the time.

PN152

MR REILLY: The agreement only covers casual employees.

PN153

THE COMMISSIONER: Right. So there were no casual employees employed at the time.

PN154

MR REILLY: Yes, in which case the agreement has not been approved.

PN155

THE COMMISSIONER: Understood.

PN156

MR ANDREWS: If I may, Commissioner, there were three casual employees employed at the time. I’m not sure my friend is – what he’s arguing. He seems to be arguing that none of those employees were entitled to vote because they weren’t employed at the time, which goes against what the consensus - - -

PN157

THE COMMISSIONER: Whereas you’re saying there were three who were employed at the time.

PN158

MR ANDREWS: There were three employed at the time who were actively engaged at the time. It was agreed with the consultative committee and the AWU that those employees who lived in the area and came back to work in a seasonal nature each year should be canvassed on the vote because they were employees, Commissioner. So if they’re now arguing that they’re not employees - - -

PN159

THE COMMISSIONER: The problem there is that the parties may have views but the law speaks for itself and it is written in the act and it can’t be varied by the views of the parties as to how it should be applied. If those views are not in accordance with the requirements of the plain language of the statute, they are irrelevant.

PN160

MR ANDREWS: I would agree with that, Commissioner, and I’d probably say that if that’s the finding of the tribunal then the employer will - - -

PN161

THE COMMISSIONER: No, but your submission is that there were three employees entitled to vote.

PN162

MR ANDREWS: There were three employees entitled to vote.

PN163

THE COMMISSIONER: The real issue that then arises is whether or not the ballot miscarried because other people were invited to vote. It may not be possible to ascertain whether the three persons employed at the time have approved the agreement or a majority of them.

PN164

MR ANDREWS: Well, we wouldn’t know whether they did because it was a secret ballot, Commissioner. So we wouldn’t know.

PN165

THE COMMISSIONER: Exactly.

PN166

MR ANDREWS: I guess if that was the finding of the tribunal, that only those three employees who were engaged at the time of the vote were eligible to vote, then the tribunal would - - -

PN167

THE COMMISSIONER: You’d have to recommit the agreement to those employees.

PN168

MR ANDREWS: I would agree with that, Commissioner. If that’s the finding then I guess we’re open to doing that and I think it’s - - -

PN169

THE COMMISSIONER: Well, no, you’d have to recommit it to any casual employees employed at the time the vote took place.

PN170

MR ANDREWS: That’s right.

PN171

THE COMMISSIONER: Which may well be the three again or there might be some more or there might be less or whatever, but it has got to be at the time.

PN172

MR ANDREWS: That’s right. If I may, Commissioner, I might just seek instructions from my client for a moment.

PN173

THE COMMISSIONER: Yes.

PN174

MR ANDREWS: Thanks, Commissioner. Look, we would argue that those employees - if you look at the case of Smith’s Snackfood v Wayne Shortland, Commissioner, which you’re probably aware of since you were on the full bench.

PN175

THE COMMISSIONER: Which one is that?

PN176

MR ANDREWS: The Smith’s Snackfood Company Ltd.

PN177

THE COMMISSIONER: You better refresh my memory.

PN178

MR ANDREWS: I can hand up a copy.

PN179

THE COMMISSIONER: I see, yes. It’s about his ongoing casual employment.

PN180

MR ANDREWS: Yes.

PN181

THE COMMISSIONER: That’s a different statutory context to this.

PN182

MR ANDREWS: Well, Commissioner, yes, but - - -

PN183

THE COMMISSIONER: It’s about service.

PN184

MR ANDREWS: That’s right. That’s service, but it does say in that decision – it talks about casual employees no longer being employed when the casual or the employer makes it clear to the other person that there’s going to be no future engagements. Now, this, we would argue, hasn’t been done in this case. Just because the casual employee isn’t engaged at - - -

PN185

THE COMMISSIONER: Yes, but that was for the purpose of reckoning what the meaning of the statute as to service was, what constituted service.

PN186

MR ANDREWS: We would say, if you’re looking at whether or not they’re employed at the time – I mean, if you’re talking about a casual employee, they might be employed today, they might not be employed tomorrow and they might be employed the next day. Does that mean if the vote is tomorrow and they’re not in on that day they’re not entitled to vote? I don’t think the decisions of the tribunal would agree that that’s the way that the - - -

PN187

THE COMMISSIONER: Well, it might present some difficulties in terms of a rational and normative sort of regime which is appropriate to agreement-making but, nevertheless, the question is whether they were employees at the time.

PN188

MR ANDREWS: Well, Commissioner, we say that they weren’t engaged at that time but because they were – I guess what we would say is they were on the books in that they were to be contacted when the season started up production again, that they were employed at the time because neither the employer nor any of those employees had said to the employer or the employer hadn’t said to those employees, “I no longer wish to be engaged in the future.”

PN189

THE COMMISSIONER: I think you’re actually conflating two things here, that is service as a casual employee and the idea of whether you were employed at a particular time. I think you’re inferring there’s some sort of continuity of relationship between the engagements and your right in a statutory context as to the purpose of calculating service but not whether you were employed at particular times. Casual employees are employed at the time of their engagement each time, unless there’s an industrial instrument to the contrary. Isn’t that right? Isn’t that the common law position? Unless an industrial instrument preserves some sort of relationship, then the engagement constitutes the employment each time.

PN190

MR ANDREWS: Well, I would agree with that, Commissioner.

PN191

THE COMMISSIONER: Or unless the statute confers some other status on the relationship, and it does in the Smith’s case because it institutes another measure of the relationship between the casual employee and the employer of that casual employee who engages the employee from time to time, and that is it gives the casual employee certain rights which are related to a statutory concept of service.

PN192

MR ANDREWS: Right, but - - -

PN193

THE COMMISSIONER: The service concept is different from the employment concept. The employment can be casual over a period of years which are the years to be reckoned as the period of service.

PN194

MR ANDREWS: That’s right, but we would say that if a casual employee isn’t engaged per se to work at a particular time in the context of these facts, that employee is still employed; they’re just not engaged. Now, if the tribunal finds that that’s not the case then I would agree that the vote would be invalid.

PN195

THE COMMISSIONER: The question is not without difficulty. I can see what you’re driving at.

PN196

MR ANDREWS: Well, Commissioner, obviously - - -

PN197

THE COMMISSIONER: It might be something which requires some deeper consideration.

PN198

MR ANDREWS: A finding to say that they’re not employed – I mean, I think my friends may be keener to argue the point than perhaps I am but a finding - - -

PN199

THE COMMISSIONER: Let’s complicate it even further because section 182(1) doesn’t actually use the formulation of the employees employed at the time. It seems to stretch it out to the type of consideration that Mr Reilly is inferring is relevant. If you’d like to have a look at it, section 182(1). It talks about employees of the employer that will be covered.

PN200

MR ANDREWS: Well, Commissioner, under 182(1), then, all of the employees who were asked to vote will be covered and anyone else who wasn’t asked to vote, the other non-core employees, is an unknown quantity.

PN201

THE COMMISSIONER: Yes, but you physically can’t ask every potential employee, can you?

PN202

MR ANDREWS: That’s right.

PN203

THE COMMISSIONER: You’ve got to narrow this down.

PN204

MR ANDREWS: We asked those employees – I mean, Commissioner, I think the company is trying to do the right thing.

PN205

THE COMMISSIONER: There’s no question about that in my mind.

PN206

MR ANDREWS: They could have said - - -

PN207

THE COMMISSIONER: The real issue is whether or not what their efforts comprise actually meet the legal requirements.

PN208

MR ANDREWS: Well, I mean, there was a case – I don’t have it with me, Commissioner – that said potential employees can’t vote on an enterprise agreement. I might have a reference, actually.

PN209

THE COMMISSIONER: You don’t need to convince me about that. I read this 182(1) down. I think that’s a little bit of slippage in the statutory language which is designed for a different purpose. It’s about the class of employees who are asked to vote. It means if you’ve got 10,000 employees and 1000 of them are cherry-pickers and the other 9000 are fitters and turners, you don’t ask the whole 10,000 to vote on the agreement that covers the cherry-pickers. That’s what that’s all about there.

PN210

MR ANDREWS: I’d agree with that, Commissioner.

PN211

THE COMMISSIONER: So that’s how I read that down. That’s the purpose of that particular provision. It’s about the employees to be covered by the agreement, meaning not all employees but the employees to be covered by the agreement. But it is “the employees of the employer”, and I think you can infer in that in the statutory context “the employees of the employer at the relevant time”.

PN212

MR ANDREWS: Should be asked to vote on the agreement.

PN213

THE COMMISSIONER: Yes. So we’re back to the beginning of whether or not the casuals are employees of the employer at the relevant time.

PN214

MR ANDREWS: Well, that’s right, Commissioner. Really, the only thing that we can refer to is, I say, 180(2)(a):

PN215

the employer must take all reasonable steps to ensure that during the access period of the agreement the employees employed at the time - - -

PN216

THE COMMISSIONER: Well, that’s a different thing than the voting.

PN217

MR ANDREWS: -

PN218

- - - who will be covered by the agreement are given a copy –

PN219

THE COMMISSIONER: If the situation is that there are three employees then they have probably been provided for. So the real question is what’s the population of persons eligible to vote and whether or not the ballot has miscarried because the population invited to vote is wider than the population eligible to vote and we don’t know whether or not the relevant employees described by the statute have by a majority voted. We don’t know whether it’s two to one, we don’t know whether it’s three to zero.

PN220

MR ANDREWS: No, we don’t, Commissioner. I guess our submission is that the relevant employees are all those employees who make up the core casual group.

PN221

THE COMMISSIONER: Yes, but that’s a decision you’ve made.

PN222

MR ANDREWS: Well, that’s what we’re submitting.

PN223

THE COMMISSIONER: Whether or not the act actually is consistent with that is a different question. So it’s not so much – the three employees, you’ve probably provided for them. I say probably because it’s not appropriate to reach a conclusion at the moment, but on the evidence you’ve probably taken the reasonable steps in relation to those three.

PN224

MR ANDREWS: Well, that’s right, Commissioner, but the vote - - -

PN225

THE COMMISSIONER: From then it becomes the question of the ballot because we don’t know whether or not that three have formed the requisite majority because they are the only persons who can form the majority if they are the relevant employees.

PN226

MR ANDREWS: I agree with that, Commissioner, and if the tribunal finds that those are the only three who are eligible to vote then I guess the position of the employer - - -

PN227

THE COMMISSIONER: You’d have to recommit it to them.

PN228

MR ANDREWS: - - - will be to go back and recommit the agreement to those three employees. If that’s the finding then the employer will be happy to do that. Perhaps the AWU would like to make some submissions on whether or not they think that that’s what the act - - -

PN229

THE COMMISSIONER: Well, yes, I think that would be a good idea, Mr Reilly, as to whether or not that is intended, or would you like to adjourn at the moment to confirm?

PN230

MR REILLY: If the tribunal pleases, I would like to adjourn for a moment.

PN231

THE COMMISSIONER: Very well, 15 minutes.

<SHORT ADJOURNMENT [10.47AM]
<RESUMED [11.33AM]

PN232

THE COMMISSIONER: Yes, Mr Reilly.

PN233

MR REILLY: Thank you, Commissioner. The AWU would request that we have an opportunity to file written submissions in relation to this matter and, therefore, we respectfully request an adjournment.

PN234

THE COMMISSIONER: Mr Andrews.

PN235

MR ANDREWS: Thank you, Commissioner. I guess we would also request an adjournment to file written submissions. The question, I think, is one that’s potentially fairly far-reaching. So the ability for us to look at the issue in a bit more depth and file written submissions would be appreciated.

PN236

THE COMMISSIONER: Very well. Well, I’ll issue some directions. I’ll work them out now but my associate will document them and provide them in that form to the parties. How long do you need, Mr Reilly? Till the 11th?

PN237

MR REILLY: About two weeks, Commissioner.

PN238

THE COMMISSIONER: That’s almost two weeks. What say I give you till close of business on the Monday. How long do you want, Mr Andrews? That’s the 14th.

PN239

MR ANDREWS: Close of business on the Friday. Is that - - -

PN240

THE COMMISSIONER: No. Mr Reilly will have until the close of business on the 14th.

PN241

MR ANDREWS: On the 14th. If we could have seven days from then it should be ample, Commissioner.

PN242

THE COMMISSIONER: I’ll give you until the close of business on the 22nd to respond.

PN243

MR ANDREWS: Thank you.

PN244

THE COMMISSIONER: Proceedings are adjourned on the agreed basis that the parties will file written submissions. Directions providing for that filing will be issued forthwith. Should the tribunal feel it necessary, the matter will be relisted for further attendance hearing. If not, I will reserve my decision on receipt of the written submissions. Thank you.

<ADJOURNED INDEFINITELY [11.35AM]