AG2015/691, Transcript of Proceedings [2015] FWCTrans 303 (20 May 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051820

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COMMISSIONER CAMBRIDGE

AG2015/691

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

Application by Viva Energy Australia Ltd
(AG2015/691)

Sydney

2.02 PM, MONDAY, 4 MAY 2015

PN1

THE COMMISSIONER: Well, we're on record, so I'll take eth appearances in the matter, please.

PN2

MS GILSON: Kate Gilson from Viva Energy Australia.

PN3

MR ENDACOTT: Endacott, initial K, for the CFMEU, Northern Mining and New South Wales Energy Division, if the Commission pleases.

PN4

THE COMMISSIONER: Thank you. The matter is listed today for hearing. The purpose of the proceeding is to alert you to some concerns that exist with the application and really to give you an opportunity to consider these matters and then in due course decide what to do about this. So the process is one where I'll just run through and identify the concerns and then essentially leave them with you. It's done in this fashion on record so that there's a transcript if you want to, after today, come back and refer to any of the particular points, it assists in that regard.

PN5

If we could just then run through the matters, I suppose I'll go straight to what is the most significant of the issues and that relates to the notice of employee representational rights and this is something that is a bit of a troubling issue in many agreements. In this instance, the notice of employee representational rights seems to refer to a different company and a different agreement, and the problem with this is that that might look fairly innocuous, but there's been this Full Bench decision that's referred to as the Peabody decision where a Full Bench has had a look at this and it's, in fact, a very strict, rigid requirement that the terminology in a notice of employee representational rights be correct.

PN6

So that's something that is obviously a significant concern, so I'm not sure whether there was a muddle-up or something with the documents. I notice from the F17 that mentioned, when asked what is the name of the agreement exactly as it appears in the title clause - well, I can't find a title clause, but even that's not entirely accurate and then I notice that when we looked over the page at the reference to some of the clause numbering, it doesn't seem to synchronise.

PN7

For instance, when asked about the nominal expiry date it says, "Clause 2", but when you go to the agreement document that we were provided with, there isn't a clause 2 and the expiry date is found at another point, clause 1.3. So I'm not sure what's occurred here, but obviously there's some concern about all of that. There doesn't seem to have been any other concern that I can find in respect of the process - the requirements in terms of the preapproval steps and all of those things seem to all be in order.

PN8

There are a couple of other aspects of the document itself that I probably should mention in passing now anyway, because these things will need to be tidied up at some point. This agreement document refers to the Fair Work Australia. That's not a major point and certainly wouldn't be something that would act as an impediment to its approval but if it's going to be fixed up, these are little things that we could fix up at the same time.

PN9

Clause 2.1 which is the consultation clause which is referred to - I think there's a problem with that, because section 205 of the Act was fairly recently - when I say "recently", I think there were the 2013 amendments. So the consultation provisions in clause 2.1 don't pick up those requirements under section 205 which deal with things like the change to regular rostered hours and so forth. So that will need to be tidied up.

PN10

I've mentioned the use of FWA, and then I don't there's any difficulty with the BOOT from what I can see; that's not an issue here. I get on to then clause 4.2, the superannuation clause and this is once again another more recent amendment to the Act about the requirement for any default superannuation fund and I couldn't really find any identified fund.

PN11

It just says "join the superannuation fund" and I couldn't find in the definitions "the superannuation fund", but we have to be satisfied that if there's a default superannuation fund here, it has this MySuper product. There's a requirement in the Act now that says we have to be satisfied of that. So that will need to be attended to.

PN12

The last thing, is once again a fairly technical requirement, but I'm afraid we're governed by technicalities with these things. The signature page, there's a regulation which stipulates the requirements for what must be contained in the signature page and it's full name and address of signing and an explanation for the authority. Well, I don't think there's any problem with being a HR manager, that's all right, but for - I don't know has signed it on behalf of the CFMEU. Someone probably recognises that signature, but I don't.

PN13

So we're tidying this up. We need to ensure that we've got that there and presumably this is a person, an elected official or something of the organisation. We usually get their designation, district secretary or district president or whoever they are. So that gives us the explanation for the authority and it's regulation 2.06A. This is just another one of these technical requirements of the legislation. In simple terms, I think all of that could be fixed.

PN14

From my perspective I could find a way to fix it, but my big dilemma is the notice of employee representational rights in the Peabody decision. If someone has got some very brilliant idea about how that might be addressed, I'm quite happy to entertain that, because I can't see substantial problems. There's certainly no better off overall test problems and other things like that.

PN15

These are technical problems, but they are technical to the point where I couldn't approve an agreement, I'd be acting contrary to the established position of the Full Bench in the Peabody decision because of the notice of employee representational right. Some of these other matters can be addressed by undertakings to fix up the document, but it's the notice of employee representational rights that gives me the greatest difficulty in all of this.

PN16

So I thought rather than just sending back a communication saying, "I can't approve it because of the notice of employee representational rights," I'd raise these questions, identify the other matters as well and then basically leave you to go away and think about it, and if you can come up with a bright idea that can overcome these problems, I'm willing to entertain it and that's the best way I can put it, but they're the issues, which are unfortunate, because as I say there aren't any substantial problems with the document, but I thought it best to alert you to all of these things at the one time.

PN17

MS GILSON: Am I able to ask a question?

PN18

THE COMMISSIONER: Yes.

PN19

MS GILSON: Thanks. The company has actually changed its name in the time between the registration and the notice of representational rights being issued. So that is an explanation for the difference in the company name. We've been sold off since that time. So we will consider how we can - - -

PN20

THE COMMISSIONER: But why would you get the name of the agreement - why is the name of the agreement different?

PN21

MS GILSON: I'd have to check the notice of representational rights. I haven't got it with me, unfortunately. I apologise for that.

PN22

THE COMMISSIONER: And we keep dropping the "s" off. The operator or it's operators. Now, you might say this is just being very pedantic, but the way in which this is being looked at, I can tell you that even if you don't include the telephone number, or if you put the notice of representational rights on your own letterhead, it's enough to knock it out.

PN23

MS GILSON: Yes.

PN24

THE COMMISSIONER: It's very strict this requirement. I haven't come across one where in this intervening period the name of the employer has changed. If it was just the name of the employer and the employer's name changed in the intervening period I might - I'd give that some serious thought, but we've also got the problem that the name of the agreement is actually different.

PN25

MS GILSON: It is a different - we have put a new title on the agreement as well. So it has changed to the Code Terminal Conversion Project Operators Agreement 2014.

PN26

THE COMMISSIONER: Look, rather than get engaged in a discussion, as I say, if you think that these are matters that might be able to be accommodated - but I'd suggest and urge you to read closely the Peabody decision.

PN27

MS GILSON: I will.

PN28

THE COMMISSIONER: Because, as I say, something as simple as sticking a company logo onto the notice or leaving off the telephone number is acting as an impediment, because this is being seen as an absolutely fixed position that you can't alter any of the terms, you can't add anything, you can't change anything and it is as strict as that.

PN29

But as I say, if you think there's some way around this, I'm not closing my mind to it, but that was the whole purpose of putting this all together, because you've also got some of the other matters that need to be attended to as well. But I think it's a question here of perhaps going away and having a think about this, reading the Peabody decision and then making a decision as to whether or not you want to try and advance this particular application further or whether you say, "It might be easier for us, in the whole process, to go back and start the process again." You're not dealing with a big number of employees, so I can see all of that. It really becomes a value judgment for you to decide which is going to be the more efficient way to fix this and that's really the whole point of putting it all together now and alerting you to the other matters at the same time, which are the things like the superannuation clause and consultation clause and things like that.

PN30

It doesn't give me any joy to have to say this to parties, but I'm doing it regularly and it's just one of those things where this notice of employee representational rights has almost taken on a life of its own; it's become this sort of document that is - it's like the Magna Carta or something. It has elevated its importance beyond anything I could have believed, but it certainly has. That's the position we're in.

PN31

But, of course, it was the CFMEU that did take the Peabody case, so anyway - - -

PN32

MR ENDACOTT: Yes.

PN33

THE COMMISSIONER: This is one of these difficulties where - but look, in fairness, we did see a contortion of the idea of the document in some instances where it was being deliberately misrepresenting the position and that important paragraph about, "If you are a member of the union" seemed to mysteriously disappear from a whole heap of these and we say that occurring frequently. But we may have gone too far the other way now in terms of the rigidity for all of this.

PN34

That's the position. Have a think about it, have a look at Peabody, make up your mind as to how you want to approach this. I think it's one of two things, either you just discontinue this one, freshen it up with a new one, or you say, "No, we think we can bat on and make some changes." It's really a judgment that you will need to make, but don't do that immediately. Give it some thought and then work out what the best way is and just let us know what you propose to do.

PN35

MS GILSON: Okay.

PN36

MR ENDACOTT: Yes.

PN37

THE COMMISSIONER: All right. On that basis then, the proceedings now stand adjourned.

ADJOURNED INDEFINITELY [2.18 PM]