AG2015/3315, Transcript of Proceedings [2015] FWCTrans 553 (13 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052475

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COMMISSIONER RYAN

AG2015/3315

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

Application by Loganhill Pty Ltd
(AG2015/3315)

Melbourne

10.06 AM, WEDNESDAY, 5 AUGUST 2015

PN1

THE COMMISSIONER: Who is appearing for the company?

PN2

MS HAWTHORNE: I am seeking permission to do so, Commissioner. Ms Hawthorne from Seyfarth Shaw.

PN3

THE COMMISSIONER: Why should I grant you permission?

PN4

MS HAWTHORNE: In relation to the factors set out in section 596 of the Fair Work Act, this is a matter before you today in relation to an application for intervention by various unions in connection with my client's proposed enterprise agreement. Those unions are each today represented by experienced industrial officers. We anticipate that the matters that will be raised today involve some questions of law in relation to the threshold for intervention, what requirements the Commission needs to be satisfied of and should we move to the substance of the matters to be raised by the unions, we anticipate that that will also involve questions in which legal expertise will assist regarding the statutory test for approval of the agreement and construction and application of jurisprudence.

PN5

Having regard to the fact that these are relatively confined, but legal questions, we do submit this is a matter in which legal representation will assist the Commission to deal with the matters expeditiously and that it would raise an issue of relative disadvantage in circumstances where the unions are represented by experienced industrial officers if legal representation is denied to the company.

PN6

THE COMMISSIONER: The company doesn't have in-house expertise available?

PN7

MS HAWTHORNE: Well, the Commission has already heard from my instructor who is here today, Mr O'Brien, about the company's internal legal expertise. That was a matter that was dealt with previously when this matter came on before the Commission on 18 June.

PN8

THE COMMISSIONER: I accept that Loganhill is a small company, but Loganhill is part of the Skilled group and the Skilled group have been in and out of this Commission and its predecessor Commissions for many, many years adequately representing the interests of the Skilled group over decades.

PN9

MS HAWTHORNE: As you have identified, the Skilled group is quite a large organisation. Certainly the part of the Skilled group that relates to the Loganhill activities, as you have heard previously, is a much smaller part of the organisation and the organisation as a whole may have people that are experienced in these matters as you have identified and have appeared in the Commission previously, but the question is really whether or not there is a person within the organisation with sufficient knowledge of these matters who can assist the Commission in the proceedings today and for the reasons that have previously been discussed at the hearing on 18 June with Mr O'Brien, we do press that as a matter of fairness, it is going to facilitate the efficient conduct of the proceedings if the company is able to be legally represented today.

PN10

THE COMMISSIONER: That's it?

PN11

MS HAWTHORNE: Yes, Commissioner.

PN12

THE COMMISSIONER: Good. Mr Reilly, Mr Weber or Mr Vroland, do any of you want to say anything about whether or not the applicant should be granted permission?

PN13

MR VROLAND: Yes, certainly we do, Commissioner. In our view, the applicant shouldn't be granted permission to appear at all. I will just take a step back, Commissioner, and say that the AMWU hasn't actually made an application to intervene in this matter. We understood that the matter today was brought on for the application that the company has made for approval of a single interest enterprise agreement.

PN14

Now, our position in this matter is that that application is entirely misconceived. The company doesn't actually have any employees who are employed within the scope of the agreement as it stands and, in fact, if the company is seeking to make an enterprise agreement - - -

PN15

THE COMMISSIONER: Okay, just stop there. What's your view in relation to the issue of representation?

PN16

MR VROLAND: My point, Commissioner, which I can make quite briefly, is that we say there should, in fact, be a Greenfields agreement and in that sense, the AMWU has a distinct interest in appearing as do the other unions, but with respect to the application to intervene, we would say that the company has to clearly - - -

PN17

THE COMMISSIONER: Well, I haven't even got to that stage yet.

PN18

MR VROLAND: I am sorry, the right of my friend from Seyfarth Shaw to represent the company in this matter. We have initial concerns that we're not even convinced that the company, in fact, has made an application at all for the approval of an enterprise agreement. It appears that there is no one here from the company today to instruct Ms Hawthorne, if I have heard her name correctly, but nonetheless the application before you is not necessarily a complex matter. It's for the approval of an enterprise agreement. If I can address the criteria that appear in section 596(2) it says the Fair Work Commission may - - -

PN19

THE COMMISSIONER: No, don't bother. You're opposed?

PN20

MR VROLAND: We are opposed. Strongly opposed.

PN21

MS WEBER: We are also opposed, Commissioner. The ETU - - -

PN22

THE COMMISSIONER: Thank you.

PN23

MR REILLY: Yes, we're also opposed. We - - -

PN24

THE COMMISSIONER: Thank you.

PN25

MR REILLY: Are you sure?

PN26

THE COMMISSIONER: Thank you. Ms Hawthorne, I am not going to grant you permission to appear today, not for any of the grounds that you have raised, but for a separate reason. At the moment this matter is not going to go ahead today in any substantive way. The deponent of the F17 is not here. If the deponent of the F17 is not here, I am not going to be in a position to ask the questions of the deponent of the F17 that I want answered.

PN27

Mr Vroland raises an issue which was already in my mind. You can sit down, Ms Hawthorne, because even though I am not going to grant you permission to represent, you are more than welcome to stay and I suspect that this matter is not going to proceed beyond me making some statements today and working out how this is going to be dealt with.

PN28

This is the third or the fourth application that has been made by Loganhill for approval of an agreement. I listed the matter originally on the basis for E-Hearing. In other words, I looked at the paperwork that was provided by the company, I went through the material, had regard to what had happened in the previous applications and was broadly satisfied that the agreement would be approved, so it was listed for E-Hearing for approval. That was converted into a hearing in the Commission and with parties being present at the request of the union who asked to be heard on the basis of concerns that they had.

PN29

My real concern in relation to this is the company, in some respects, set up the Commission to fail in the way it filed its material. When the Commission issued the notice of listing for an E-Hearing the standard practice is we send out the notice of listing to the relative parties. On this occasion the relevant parties are the employee bargaining representatives. I was conscious when I read the F16 that was filed in this matter that the address that was given for the employee bargaining representatives was the Skilled Engineering address in Hawthorn. It didn't necessarily surprise me because I had raised that issue at the last hearing and that's because in one of the very - I think the first application the employees had an address in Unanderra which was the operating address of one of the other subsidiaries in the Skilled Group, but at least it appeared to be the physical work location of the employees.

PN30

Given the way in which the last application had been dealt with and with the Commission specifically raising issues around who was who in the zoo, the respective positions, the person who was the Chief Financial Officer of Loganhill also happened to be the Chief Financial Officer for the Skilled Group of companies, Ms Melillo, who was listed as the HR person for Loganhill was also listed on the internet as being a HR person in the Skilled Group with one of the customers there.

PN31

With all of that toing and froing I expected and I accepted that the F16 that was lodged in this matter accurately identified the contact details for the employees. When the Commission sent out by letter the notice of listing to the employee representatives it was returned. In other words, letters sent directly to the Luton Grove address in Hawthorn addressed to the employees - and that's exactly the way they were described in the F16 - that material was returned.

PN32

When my associate has spoken to the company, the information received was, "Well, the company would have told the employees that the matter was listed." It is improper in the extreme to put the Commission in the position where the Commission cannot communicate directly with the bargaining representatives and where the company effectively reserves to itself the right to filter the information that is given to the bargaining representatives. I have asked, through my associate, for the company to file a new F16 and on this occasion they filed an F16 where they have identified the Unanderra address as the address for the bargaining representatives.

PN33

The normal practice in the Commission is the Commission does not require a home address of bargaining representatives. We accept a business address or workplace address of bargaining representatives. The expectation in accepting a business address is that mail from the Fair Work Commission to a person at that business address goes to the person. I have no confidence that any mail that I would send is necessarily likely to be received by bargaining representatives given that when the company, on its third attempt at this, gave a mail address for the bargaining representatives where very clearly the company had done absolutely nothing to ensure that that mail, when received, would be delivered to the persons concerned. In fact, the mail was returned "Not at this address". That raises so many concerns in my mind about what's going on.

PN34

Why am I having so much difficulty trying to approve an agreement? This is not me trying to stop approval. I had listed this matter to approve the agreement and I can't even get communications from the Commission to the employees because the employer has not provided accurate information in the Form F16. Because of that, I have real concerns as to whether or not there is a hidden agenda to mislead the Commission or not allow the Commission to do its functions properly. I have real doubts as to how I can be satisfied of all of the requirements that I need to be satisfied before I approve an agreement.

PN35

Whilst Mr Vroland has raised an issue where he challenges, in some respects, the validity of the agreement, I quite separately have come to the view that I need to have material put to me and I need someone who is prepared to do so under oath, provide supporting documentation and allow me to examine that documentation which establishes that Loganhill Pty Ltd is the employer of the employees it says. I want to know when those employees are said to have commenced employment. I want to know how I can be satisfied that that is a real employment relationship and not an illusory one. I am doing that because I am going to go through the requirements of the Act on the basis that I need to be satisfied - and I have got real doubts with the way this matter has unfolded over three iterations that I can rely upon anything that is simply put to me in paper form.

PN36

I am going to go to the starting point, which is section 172, where it talks in terms of:

PN37

An employer may make an enterprise agreement with employees who are employed at the time the agreement is made and who will be covered by the agreement.

PN38

I am going to start at the point. I will then work through with the employer as the application to go through each of the steps so that I can be satisfied that I have an agreement or that I have an employer and that that employer has employees and that those employees are employees who will be covered by the agreement. Then, from that point, go through each of the other requirements, notice of employee representational rights, the content and form of the notice of employee representational rights, appointment of bargaining representatives, employees having to be given a copy of the agreement and other material, which is section 180, section 181, the request to approve, section 182, when the agreement is made and then section 186, each of those provisions in detail and section 187.

PN39

Then I will also be going through what is permitted matters, what's not permitted, what's mandatorily excluded from agreements, what's the relationship between the terms of the agreement and the national employment standards. I am going to go through this with a fine tooth comb because I have got to that stage where I thought on this occasion I could have total reliance upon what the employer had put in and I can't and on that basis I am not prepared to simply accept anything that the company simply puts to me in writing.

PN40

At the very least, Mr Joe Gonzales, who is the deponent of the Form F17, is going to have to be available. To the extent that there is material that Mr Joe Gonzales is not going to be able to attest to from his own knowledge, then someone is going to have to provide the additional material that can satisfy the Commission.

PN41

Now, given that we haven't got Mr Joe Gonzales here today, I can't start and I won't start. You are going to have to go away and tell me what you want to do and when you want to do it. I also note today that shortly before I came into the hearing I got an email message from Ms Melillo which presumed that there would be a telephone call-in facility. It wasn't listed as a telephone conference, it wasn't listed as a multipoint hearing. The hearing was listed for here in Melbourne. Common courtesy would have dictated that the applicant, if it required to have persons appear in Sydney - that a formal communication as soon as the notice of listing was received was sent to the Commission saying, "Can the matter be relisted for both Melbourne and Sydney?" If that had have occurred, then we would have made arrangements for video linking with Sydney. On that basis, parties or Sydney-based persons could have attended the Commission's offices and hearing rooms in Sydney. Simply sending an email shortly before a hearing is totally unsatisfactory.

PN42

Now, I have got no idea where Mr Gonzales is physically. He has a Skilled Group address of 2 Luton Lane, Hawthorn on his F17. I would even hesitate to send a letter to Mr Gonzales at 2 Luton Lane, Hawthorn given that letters sent to the other bargaining representatives were returned "Not at this address". So the applicant is going to need to work out what it is going to do with this.

PN43

The issue of the unions being heard, as you would all be aware, there is no provisions in the Fair Work Act which relate to intervention, which is very different from the old Conciliation and Arbitration Act and the Industrial Relations Act which had a very specific provision relating to intervention. The way the Fair Work Act deals with it is the Commission can inform itself of matters before it. If the unions want to be heard, then they can put something to me to say why their presence would assist and I can hear from them or not hear from them. It's purely up to the Commission. I will exercise my discretion on that.

PN44

I find generally that unions don't waste their time coming along to Commission hearings and if unions come along, it's because they have a particular issue that they wish to raise and where that particular issue will assist the Commission carrying out its jurisdictional functions, but I have also, on a few occasions, had union officials who have come along to do nothing other than waste time, so I would expect some brief communication from each of the unions.

PN45

I have already got an indication from Mr Vroland that he has got issues relating to the fundamental question as to whether or not there is a valid agreement, but if the parties or if the unions have issues that they wish to raise, at least some brief note to the Commission would assist, copy it to the company, and I suspect that at the next hearing, Ms Hawthorne, there may be sufficient complexity in the matter that I might be well-assisted by having the respondent represented. But I will leave that go until the next occasion.

PN46

I am not going to relist the matter. I am going to leave it on the basis I am adjourning. The applicant can communicate with my chambers and ask for the matter to be relisted and that's simply to give you the opportunity of working out when. I put you all on notice I am going on leave on 21 August, returning on 23 September. I have some time before 21 August, but again if you ask for a hearing date, my associate can work it out. When I come back on 23 September I have three full weeks of work already listed. I have two back to back weeks on the unfair dismissal roster, so I have literally got no time to spare in the first three weeks I come back from my leave. Take that on board in terms of just trying to work out the appropriate timeframe. If this matter can be dealt with before 21 August it would be very, very useful simply because it is the third iteration of this exercise.

PN47

You have created a rod for your own back - this is to the applicant - and you have done so on the basis of the conduct that's occurred in the previous matters and the conduct that's occurred in relation to this matter, so tread carefully. I have a statutory obligation to approve agreements and I will approve agreements if they meet the statutory requirements, but let's see how we address them.

PN48

MS HAWTHORNE: Commissioner, if I may just raise two short points by way of administrative inquiry more than anything else, I assure you that the company has heard everything that you have had to say this morning and we understand the position as you have articulated it. Given the course that the discussion has taken, and we haven't had the opportunity to clarify - and I appreciate that it may make no practical difference given where we are at, but I am instructed that all of the bargaining representatives and Mr Gonzales have been made available this morning and are standing by on a telephone line. I know that - - -

PN49

THE COMMISSIONER: Tough.

PN50

MS HAWTHORNE: I have heard what you have to say on that, Commissioner. Just in relation to the timeframe, I would confirm on the part of the company that they are also quite keen to move this forward but in a way that addresses the various statutory requirements appropriately. Foreshadowing though that there have been difficulties with people being physically able to attend hearings in the past, are you able to give an indication of whether upon the notice of listing, nominating a further hearing date, if an email of the type that you have described was sent out requesting a video link? Are you able to give an indication of whether or not you would be - - -

PN51

THE COMMISSIONER: If you send an email to me saying, you know, "The company's preference is X date and the company's preference is a video link with Sydney," then the answer is yes, you will get a video link with Sydney because I know that people are physically located in Unanderra. You can either fly them down - give them a holiday and bring them down to Melbourne, lovely sunny weather here at this time of year, or take them into Sydney. Now, I've got no idea how long it takes to get from - I say Unanderra. Unanderra, is it? I've got to be careful. You get shot if you spell it or pronounce it wrongly up there. I'm quite happy to make certain that there is video linking and it would have to be done by video link so that if a person is giving sworn evidence, they can be sworn in in Sydney and then examined from here. Just ask for it, but don't do what happened today which is shortly before the hearing an email is received by my chambers with an expectation that we have just done it. That's not on.

PN52

MS HAWTHORNE: Certainly. The last administrative point that I just wish to clarify is in relation to the position of the unions - and I must apologise for earlier describing that as an application, that was an error on my part, but in relation to the question of leave to appear and be heard, would it be the intention - it will certainly be the company's position that that ought to be determined as a threshold issue because obviously in the event that permission is not granted or the Commission doesn't feel it would be assisted by hearing from the unions on the this matter, then the application for approval of the agreement which is pressed will just proceed in accordance with the ordinary course as you have outlined.

PN53

THE COMMISSIONER: You can take it from me that what Mr Vroland has already said would suggest to me even at this early stage - and I cut him off quite deliberately, but it even at this early stage it would suggest to me that Mr Vroland is raising a point that I need to consider in which case if he can assist the Commission in informing itself correctly as to the requirements of the Act, then I would be assisted by a submission or material being led by Mr Vroland. I didn't ask either Ms Weber or Mr Reilly why they wanted to intervene or what their position was, but expect them to give me something in writing. At the moment, the most likely course is you are going to have at least one person that I will hear from because already what Mr Vroland has said is sufficient for me to say, "Well, that's exactly one of the issues I am going to deal with. If you want to address me on that, I would be pleased to hear what you do have to say."

PN54

There is often a very valuable role for contradictors in these sorts of matters. Where enterprise agreements are effectively being run by a party or sometimes even the applicant and the other party or parties, employees, are in tune, sometimes having a contradictor is of real assistance to the Commission because it ensures that when the Commission ultimately issues a decision to say the agreement is approved, there's a much higher degree of confidence that the Commission has genuinely and properly and in detail addressed every requirement of the Act.

PN55

MS HAWTHORNE: Certainly, Commissioner, and I don't quarrel with that at all.

PN56

THE COMMISSIONER: I have to stop. I have got an administrative matter which I am five minutes later for with the President, so I am going to stop in any event. Communications with my chambers will be appreciated. I think we're not going to go any further today.

PN57

MR REILLY: Commissioner, if I could just add one thing, we would ask that the company copy the unions into the correspondence.

PN58

THE COMMISSIONER: Sorry? That the - - -

PN59

MR REILLY: We would ask that the company copy the unions into any correspondence that they send to your chambers.

PN60

THE COMMISSIONER: It makes no difference if they do or don't. At the present moment any communication I get from the company I will copy to the unions and any communication I get from the unions I will copy to the company and I will make certain also that separately and independently communications are made with the employee bargaining representatives. The Commission stands adjourned.

ADJOURNED INDEFINITELY [10.38 AM]