AG2014/8601, Transcript of Proceedings [2014] FWCTrans 739 (2 December 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051015-1

DEPUTY PRESIDENT GOSTENCNIK

AG2014/8601

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

Application by Coogee Chemicals Pty Ltd
(AG2014/8601)
Coogee Chemicals Employee Collective Agreement 2014

[AE410562 Print PR556411]]




Melbourne

12.06PM, FRIDAY, 17 OCTOBER 2014

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE DEPUTY PRESIDENT: Good morning, Mr Kempin.

PN2

MR S. KEMPIN: Good morning, Deputy President.

PN3

THE DEPUTY PRESIDENT: Mr Kempin, the reason I've listed this matter this morning is to discuss with you the issue of the scope of the agreement. Perhaps I'll explain to you what the difficulty, as I see it, is. I note that you've given an undertaking, and I'll come to that.

PN4

MR KEMPIN: Yes, your Honour.

PN5

THE DEPUTY PRESIDENT: But to begin with, the agreement sets out at clause 1.2 that it is binding on, relevantly, "Employees of the company engaged in employment classifications in schedule B." Schedule B sets out particular classifications. Neither the classifications in schedule B nor clause 1.2 is geographically confined, so that on its face it operates to apply to all employees of the employer who fall within those classifications.

PN6

MR KEMPIN: Right.

PN7

THE DEPUTY PRESIDENT: Section 53 of the Fair Work Act provides that an agreement covers employees, relevantly, if the agreement is expressed to cover the employee. The notice of representational rights that you issued to employees before - or when bargaining commenced also sets out that the agreement that you're seeking is not confined to Western Australia. It notes, for example, that heavy duty drivers at Western Australia and Queensland sites would be covered.

PN8

MR KEMPIN: Yes, indeed.

PN9

THE DEPUTY PRESIDENT: That ultimately doesn’t prevent you from having a narrower agreement, but it's the agreement that has got to tell me that. The difficulty that I have is that the range of matters about which I can accept an undertaking is limited, and it's limited to whether or not I have concerns about whether - about any of the matters that are set out in section 187 and section 188 of the Act. Coverage isn't one of them. And so what I'm left with is an agreement which on its face covers your entire operation in relation to those classifications, and knowledge that not all employees who are covered by the agreement actually voted for the agreement.

PN10

MR KEMPIN: Yes.

PN11

THE DEPUTY PRESIDENT: I know that the employees who you intended be covered by the agreement, by reference to your undertaking, got a vote, but the agreement itself doesn't confine them to those employees. And so on the face of it, I don't think I have any choice but not to approve the agreement for that reason. The choices for you are these, it seems to me: I can adjourn the matter, allow you to get some advice on what I've said, and I can relist the matter if you wish, for you to make arguments as to why I might be wrong or should be persuaded to accept the undertaking. So that's one option, and I'm happy to do that if that's what you want to do.

PN12

Secondly, if you don't want to do that I can either not approve the agreement; or you can file a notice of discontinuance and start again. Can I tell you this, that in relation to those two last options, if I were to dismiss the application, it would mean that you would have to start the whole bargaining process again, which means giving the employees - agreeing to bargain, giving the employees the notice of representational rights, waiting 21 days after the notice, then going through that whole process. It might take you another month and a half or so to process it.

PN13

If you discontinue the proceeding, then you're still bargaining for the agreement, and what you can simply do is do the last bit of the approval process: that is give the employees a copy of the agreement; tell them at least seven days before you're going to have the vote about the date, time and place of the vote; you can rely upon explanations you've already given about the agreement; and you can explain to them that the only thing that's changed is the scope of the agreement; and then you can apply for approval again.

PN14

MR KEMPIN: Yes.

PN15

THE DEPUTY PRESIDENT: That will be quicker, but these are matters for you. So you can select, if you wish, any one of those three options.

PN16

MR KEMPIN: If I may, Deputy President, my first question is you are- the last part you described there where essentially we vary the agreement, effectively, by re-wording that clause.

PN17

THE DEPUTY PRESIDENT: That's right, yes.

PN18

MR KEMPIN: Going back to a seven-day review period, and then a ballot.

PN19

THE DEPUTY PRESIDENT: That's right, yes.

PN20

MR KEMPIN: Is that correct?

PN21

THE DEPUTY PRESIDENT: Yes, that's right.

PN22

MR KEMPIN: I suspected as much. And then, of course, the re-wording of the clause would require a geographical limitation, your Honour. Basically it's Kwinana and Kwinana only - - -

PN23

THE DEPUTY PRESIDENT: That's right. So it's not a major variation, it's just a minor variation.

PN24

MR KEMPIN: Not at all. And, in fact, it has no bearing, of course, on any actual pay and conditions of employees covered by it.

PN25

THE DEPUTY PRESIDENT: That's right.

PN26

MR KEMPIN: The other question I have is would your concerns about this be allayed by the fact that the agreement that's currently in place, which is the 2009 agreement, which covers Queensland drivers and which the notice of rep rights letter actually covers; the Queensland drivers, after - I mean, a couple of weeks after that notice went out, decided, given that it was a bigger group now than back in 09 - they decided they wanted to go and have a separate agreement, which was done.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR KEMPIN: That agreement has actually been voted up. I have the matter number for that. So that's actually in place in - - -

PN29

THE DEPUTY PRESIDENT: Yes, that wouldn't change anything, because that might affect whether or not this agreement applies to them, but it doesn't affect whether it covers them. See, an agreement can cover them but not apply to them because of other circumstances. Bit like a modern award. A modern award will still cover your people, but once this agreement is approved, won't apply to them because there will be an agreement in place. Like - the same is true, it's not going to change the coverage clause. And that's what section 55 is concerned with, it's concerned with covers. And an agreement will only apply once it's in operation, which happens after I approve it, not currently.

PN30

So that's my difficulty. And as I say, whilst the undertaking route seems to be a niche route, on my reading of the provisions I can't accept an undertaking about that, because undertakings don't cure every ill, they only cure particular ills, and this isn't - - -

PN31

MR KEMPIN: Can you repeat what the sections of the Act that are relevant here are.

PN32

THE DEPUTY PRESIDENT: Okay. The agreement clause obviously is not confined, neither is the schedule B. Section 55(3) sets out the coverage of an agreement, and it essentially says an agreement will cover those employees that the agreement is expressed to cover. My capacity for accepting undertakings is limited only to concerns about sections 186 and section 187.

PN33

MR KEMPIN: Which is about undertakings, you said - - -

PN34

THE DEPUTY PRESIDENT: No, section 186 and section 187 are about matters that I have to be satisfied about before I approve the agreement. So if I'm concerned about one of those matters, then I can accept an undertaking. But here it's the actual agreement, and I know that the people who are covered by the agreement by its express terms did not get a vote. And I know it's not your intention that they be covered, but the agreement says they will be, and so therefore I can't be satisfied that a valid majority approved the agreement.

PN35

MR KEMPIN: Yes.

PN36

THE DEPUTY PRESIDENT: That's really that. It's that simple. And so as I say, if you want to get some advice about it and persuade me to the contrary, I'm happy to set aside some time to do that. The reality is, though, that by the time you get advice and by the time I list the matter again and hear augment and make a decision, it will be more efficient if you were to discontinue and do the thing again in that short a period. That's just the practical reality.

PN37

MR KEMPIN: To be clear, it's actually a discontinuance process that you're suggesting.

PN38

THE DEPUTY PRESIDENT: Yes, and - - -

PN39

MR KEMPIN: Which only requires - - -

PN40

THE DEPUTY PRESIDENT: Yes. You can either fill out the form, or I'll accept just a short note to my associate simply saying that, "We don't wish to proceed with the application for approval," and that will put that matter to one side. Then if you simply amend the agreement to confine the coverage clause in clause 1.2 to Kwinana, so it will be, "Employees employed at Kwinana who are classified under schedule B." And then you just have to do the last steps again, and that is give the employees a copy of the agreement or make it available to them; seven days before you have the vote, tell the employees when the vote is to take place, how it's to take place and where it's to take place, so if it's going to be in a meeting or wherever.

PN41

MR KEMPIN: Yes.

PN42

THE DEPUTY PRESIDENT: So tell them that; and when you give them a copy of the agreement, say - you can tell them that it's exactly the same as the agreement that we've previously negotiated, we just had to clarify the scope.

PN43

MR KEMPIN: The scope?

PN44

THE DEPUTY PRESIDENT: Yes. And while you're at it, can I make this suggestion, that - I asked you to give an undertaking about representation and the dispute settlement procedure.

PN45

MR KEMPIN: Yes - - -

PN46

THE DEPUTY PRESIDENT: Which you've given, so rather than me or somebody else having to ask for that undertaking again, can I just suggest that while you're altering it, you may as well alter the dispute settlement clause to include a sentence that, "An employee may be represented at any stage during this procedure."

PN47

MR KEMPIN: Thank you for the advice.

PN48

THE DEPUTY PRESIDENT: That will cover off that. And once you have the vote, then make a new application, fill in the stat dec, and if you mark it to my attention; that is, indicate that I've dealt with a related matter previously, it will come to me more quickly, and I'll expedite the approval process.

PN49

MR KEMPIN: Yes. Thank you, Deputy President. I'm quite confident that's how I'll proceed. I don't think I'll be going down the advice path because this is actually quite a clear - I think it's a clear matter.

PN50

THE DEPUTY PRESIDENT: Yes. I apologise for that, Mr Kempin, but my hands, I think, are tied. So I will - as I said, if you do what I've suggested, I will make sure that you get your agreement approved pretty quickly once you've filed the new application.

PN51

MR KEMPIN: May I take the opportunity to ask, did you look at the rest of the agreement? I mean, is there anything else about - - -

PN52

THE DEPUTY PRESIDENT: No, that's it. No, that's it. Those are the concerns. The agreement has been assessed for compliance and for - - -

PN53

MR KEMPIN: (indistinct)

PN54

THE DEPUTY PRESIDENT: - - - and for whether it passes the better off overall test. And I'm satisfied about all of the statutory requirements other than coverage now.

PN55

MR KEMPIN: Yes.

PN56

THE DEPUTY PRESIDENT: You've given an undertaking in relation to the dispute settlement procedure, which was my other concern, so there are no other concerns that I have. And but for the coverage issue, I would approve the agreement. So that's where we're at.

PN57

MR KEMPIN: Thank you very much, Deputy President. I appreciate that.

PN58

THE DEPUTY PRESIDENT: All right. Well, Mr Kempin, I look forward to getting the note that you aren't going to proceed.

PN59

MR KEMPIN: Yes, I'll (indistinct)

PN60

THE DEPUTY PRESIDENT: And as I say, once you go through the process and make the application, if you just indicate that I've dealt with a matter previously, I'll expedite your agreement so you won't have to wait as long as you have to have this current agreement considered. All right?

PN61

MR KEMPIN: Thank you very much.

PN62

THE DEPUTY PRESIDENT: All right. Have a good day. We're adjourned.

<ADJOURNED INDEFINITELY [12.21PM]