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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052847
COMMISSIONER LEE
AG2015/6251
s.185 - Application for approval of a single-enterprise agreement
Application by Transfield Services (Australia) Pty Ltd
(AG2015/6251)
Melbourne
1.59 PM, THURSDAY, 10 DECEMBER 2015
PN1
THE COMMISSIONER: I'll take appearances please.
PN2
MR GOSLING: If it please the Commission, I seek to appear on behalf of what is now Broadspectrum Australia Pty Ltd. I can inform the Commission at this stage that since the making of this application, Transfield Services Australia Pty Ltd has instituted a name change and is known formally known and registered with the ASX as Broadspectrum Australia Pty Ltd. That doesn't variegate in my submission from any rights and obligations that Transfield Services may have had and continues to have and there's no basis to any concerns in relation to this application proceeding under that new name. I've got the GM with me and I have Mr MAY, initial D.
PN3
THE COMMISSIONER: Sure. So you're seeking permission as a part agent, Mr Gosling?
PN4
MR GOSLING: Yes, Commissioner. My role has from the reviews has been as a national industrial relations manager due to a restructuring of the company, I am now a consultant to the company and have participated in the negotiations of this enterprise agreement since March of last year continuously up to this stage. It is my submission that I can assist the Commission, given that I've been the principle negotiator assisted by Mr May in the negotiation and therefore have full details and knowledge of the background circumstances for the making of this agreement.
PN5
THE COMMISSIONER: How does that fit within the framework of section 596?
PN6
MR GOSLING: We say it's a matter of discretion for the Commission to allow a party who can assist the Commission to appear where those can assist the Commission in these proceedings and it is our submission that the Commission has the discretion to allow for such an appearance here. I'm not here as a legal representative. Just as a paid agent who has participated fully - - -
PN7
THE COMMISSIONER: Yes, but you appreciate there has to be some platform to that. Either on the basis of enabling the matter to be dealt with more efficiently, taking into account the complexity of the matter or it's unfair not to allow the person to be represented because the person can't represent himself or herself, et cetera, effectively or the third provision which is that it's unfair not to allow the person to be represented, taking into account fairness between the person and other persons of the same matter. So what's the - - -
PN8
MR GOSLING: We say we can due to the complexity of the matter as I understand is being posed here today that the person with all the detailed knowledge, background and experience in relation to these negotiations is myself on behalf of the company and there is no one else that the company can readily bring to the table to assist the Commission in these matters. It would be appropriate that I be able to assist the Commission because of that background and experience.
PN9
THE COMMISSIONER: Thanks, Mr Gosling. Any views about permission to appear, Mr Vroland?
PN10
MR VROLAND: No, Commissioner. We would acknowledge that there may be some complexity in this matter.
PN11
THE COMMISSIONER: Well I'm so satisfied and permission is granted on that basis, Mr Gosling.
PN12
MR GOSLING: If I can raise a threshold matter?
PN13
THE COMMISSIONER: Yes.
PN14
MR GOSLING: That is the appearance of the AMWU in these proceedings. It is my submission that the AMWU and the AWU were default bargaining representatives throughout the process of these negotiations.
PN15
THE COMMISSIONER: They were.
PN16
MR GOSLING: They were, however, that role as a bargaining agent in my submission ceased when the employees voted to approve the agreement and there are no further negotiations continuing beyond that point. The Act prescribes that an agreement is made once the employees vote to approve the agreement and there is an approval process that follows from that in the Commission. But as I also understand, the AMWU and the AWU have both declined to seek to be bound by the terms of this agreement and we've received no documentation to that extent that they wish to be bound. So it is my submission that they are strangers to these proceedings. They are no longer bargaining agents because bargaining has ceased and they're not seeking to be parties to this agreement so the basis upon which they seek to appear here we say is not one that the Commission should allow because they are not parties to the proceedings in any form.
PN17
THE COMMISSIONER: Do you want to respond to that point, Mr Vroland.
PN18
MR VROLAND: Yes, thank you Commissioner. Firstly, I would just make the point that in any case it's not a matter of whether not the AMWU should be a party to the proceeding. Really, this is a matter in which the Commission is in inquisitorial mode and under if I'm not mistaken section 592, the Commission I beg your pardon section 590:
PN19
The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
PN20
Then it goes in 590(2). It says:
PN21
Without limiting subsection (1), the FWC may inform itself in the following ways:
PN22
(a) by requiring a person to attend before the FWC;
PN23
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
PN24
We've received a notice of listing, Commissioner. We say that we've been invited to attend these proceedings but in any case we say that it wouldn't be unusual for the union to appear in proceedings which directly affect its members, as is clearly the case here and has been acknowledged by my friend here. The union does actually have members at the relevant enterprise. The union was involved in bargaining. I'm a little bit unsure as to why my friend he hasn't received a copy of the F18 applying to just - - -
PN25
THE COMMISSIONER: Yes, I can just perhaps if I can just clarify that. There is in my possession a copy of an F18 which does oppose the making of the agreement but does indicate that sorry, I'll withdraw that it does indicate in an answer to question four that the union when asked does the union support the approval of the agreement, it says no. It does say in answer to three, that yes, the union was a bargaining representative. Importantly in the answer to question six it does say yes to the question, does the union give notice that it wants to be covered by the agreement. That was made by Craig Kelly on 2 December.
PN26
MR GOSLING: Could I indicate, Commissioner, to my knowledge and explain that correctly - - -
PN27
THE COMMISSIONER: You've never seen that?
PN28
MR GOSLING: No such notice has ever been provided to Broadspectrum.
PN29
THE COMMISSIONER: Right.
PN30
MR GOSLING: I have repeatedly throughout the period from the date of the vote of the employees, right through until 2.30 on the 14th day before we required to lodge, seeking from the union an indication about their willingness and provided the in fact a draft copy of an F18 and have received no confirmation or copies of any documentation suggesting they want to be bound by the agreement.
PN31
THE COMMISSIONER: All right. We might take an adjournment and I'll have my associate make a copy of this available to you. Can I just ask in light of the submission you made earlier before I hear from Mr Vroland further that you can take it from me that subject to you wanting to suggest that this is not authentic in some way but presuming that's not the case, it's clear that they seek to be covered the agreement. Does that change your position in terms of - - -
PN32
MR GOSLING: It does if such documentation has been made. It's just that there's not been compliance with the Act in providing a copy to my client organisation.
PN33
THE COMMISSIONER: All right. We might just adjourn briefly. I'll provide a copy of that to Mr Gosling and we'll take matters from there.
SHORT ADJOURNMENT [2.16 PM]
RESUMED [2.23 PM]
PN34
THE COMMISSIONER: All right. You've had a chance to look at that F18, Mr Gosling?
PN35
MR GOSLING: Yes, I have had a chance to.
PN36
THE COMMISSIONER: Is there any other view you have about the AMWU being heard today?
PN37
MR GOSLING: Not in light of them having provided it. I'm not sure when it was provided but it's dated the - - -
PN38
THE COMMISSIONER: It was provided to us on the note that I have from the registry people is that it was lodged on 2 December.
PN39
MR GOSLING: I've again checked that there's no - - -
PN40
THE COMMISSIONER: You'll have to stand up Mr Gosling, when you speak.
PN41
MR GOSLING: Sorry, Commissioner. I've checked as well with Mr May. There's no record of it being received but on the basis that the union is claiming is certifying that it wants to be party to the agreement I can't therefore object to them being able to be heard in relation to these matters.
PN42
THE COMMISSIONER: So we'll be hearing from you, Mr Vroland. What I want to do though is get some clarity about what it is that you want to say. What evidence is sought to be led. I got an email an hour ago and I set this matter down some days ago I got an email within the last hour indicating that you wanted to bring witness evidence. It would have been appreciated if that was provided a little earlier. In fact, a lot earlier. That being the case we'll deal with it as matters roll out but it impacts perhaps our ability to deal with the matter expeditiously.
PN43
Now, what I have and really the reason that I listed this matter for hearing is that attached well, I'll just make clear what I'm proceeding with thus far in terms of what your objections are to the application. Now, before I do that I'll just indicate and I'm not sure whether this was ever dealt with in any correspondence to you, Mr Gosling, but there were two issues I had, notwithstanding any issue raised by the AMWU.
PN44
I simply noted that the employee reps had not signed the agreements that is the AMWU and the AWU haven't signed the agreement but so at this point I don't have an agreement that is signed by an employee representative at all. So that is a matter that can be remedied and will need to be remedied.
PN45
Beyond that I noted that the consultation term in clause 10 doesn't refer to changes to regular roster or ordinary hours of work and so unless there's something contrary you can put to me on that point it might be the model clause will apply.
PN46
Beyond that I didn't have any particular issues or concerns but noted the matters that you raised, Mr Vroland or rather well, they were raised by you in the letter about the agreement. Now, what you said in the F18 was that you wrote to the applicant on 20 November setting out a range of concerns with the both the agreement and the processes undertaken in putting the proposed agreement to a vote. A copy of the correspondence is attached as attachment A. You've got a copy of that, Mr Gosling I presume.
PN47
MR GOSLING: Yes, we do.
PN48
THE COMMISSIONER: It's actually a letter addressed to you. The objections are under a number of headings. First is, "Lack of clarity regarding scope of coverage", and that goes to concerns with clause 3.2 of the proposed agreement. There's a second heading which is, "Not reasonable under the circumstance", which relates to as I read it a concern that a limited number of employees have voted for the agreement and it's advanced that a greater number of employees may be covered by the agreement. That's the basis of that objection.
PN49
Then there's concerns raised about alleged defects in the approval procedure. That's the extent of it. The first question, Mr Vroland, is that I can take that as the extent to which concerns that you have about what's occurred with the agreement or is there more?
PN50
MR VROLAND: Thank you, Commissioner. You were right the first time it's Vroland.
PN51
THE COMMISSIONER: It is Vroland.
PN52
MR VROLAND: Yes, that's essentially the sum total of our objections however I would say that we did intend to object today on the basis that there is no valid application given that there does not appear to be a signed copy of the agreement before the Commission and we say that that's actually a mandatory requirement under section 185(2). The regulations prescribe the requirements for signing and it's very clear under the regulations that that's regulation 2.06A(2) and it says:
PN53
For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:
PN54
(a) it is signed by:
PN55
(i) the employer covered by the agreement; and
PN56
(ii) at least 1 representative of the employees covered by the agreement; and
PN57
(b) it includes -
PN58
various other data which in this case it clearly doesn't include because there is simply no signature as far as we can tell on a document that's before the Commission from any employee representative. We say that's actually fatal to the applicant's application as it stands. I'd seek to make further submissions about that but you just asked for an outline at this point.
PN59
THE COMMISSIONER: Yes. So that's the only additional point to what's in the letter of 20 November?
PN60
MR VROLAND: That's correct, Commissioner. I should also say that I do apologise for the late notice in respect of our witness evidence. The witness evidence that we seek to adduce will be quite brief. It simply goes to the nature of employment as the organiser who is responsible for our members who work for the employer understands it. I don't envision that it would take longer than 15 minutes to examine Mr Hynds. Perhaps even less.
PN61
I fully accept that if the respondent wanted an adjournment in order to better prepare for cross-examination that that would be a reasonable thing.
PN62
THE COMMISSIONER: Well it depends what he's going to say I imagine. Can we just deal with the requirements in terms of the signature. What was that section again?
PN63
MR VROLAND: It's 185(2) and it's a mandatory requirement.
PN64
THE COMMISSIONER: Yes, that's quite clear. You don't quibble with the fact that provided that a signed copy is supplied, this is a course of conduct that's engaged in frequently by the Commission when applications are lodged and often signature pages are not complete or names and addresses are not supplied, don't conform to the requirements of the Act.
PN65
There's a follow-up with the applicant and the applicant provides though. I agree with you that they must be provide otherwise it's not a valid it can't be approved but you don't quibble with the fact that that can be provided post facto.
PN66
MR VROLAND: Yes we do, Commissioner. We say that for an application to be valid there's a time limit under section 185(3). It says:
PN67
If the agreement is not a greenfields agreement
PN68
which is the case here
PN69
the application must be made:
PN70
(a) within 14 days after the agreement is made; or
PN71
(b) f in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.
PN72
At this point in time we don't see that there is any extension that's before the Commission and in this respect we say that there is case authority to say that if the requirements of the Act are not complied with, then there is just simply no valid application before the Commission.
PN73
In that respect I'd just simply draw your attention to a case which I'd seek to hand up which is - - -
PN74
THE COMMISSIONER: So on that basis, Mr Vroland, your position would be that the Fair Work Commission would simply reject every application for an approval of an agreement that's made if the requisite signatures weren't on it at first instance?
PN75
MR VROLAND: That's what the Act says, Commissioner. Certainly in any case an agreement would need to be signed by the time the matter came for determination.
PN76
THE COMMISSIONER: It follows then that every agreement that Fair Work Commissioners approve where signature pages were not correctly supplied at first instance and were provided subsequently upon request by the Fair Work Commission, that those agreements are not validly approved?
PN77
MR VROLAND: It doesn't necessarily follow, Commissioner. I think the case PK Wallsend that an act that's done in error with respect to a statutory requirement is not necessarily invalid, depending on a range of criteria. Some of the case authorities that I was otherwise going to talk to today actually deal with this matter. So if I'm right, it does not necessarily invalidate any previous decisions by the Commission. That would be potentially subject to scrutiny but no - - -
PN78
THE COMMISSIONER: Why doesn't it necessarily why doesn't that apply to this particular case?
PN79
MR VROLAND: Because the Commission quite apparently and patently has before it the issue of whether or not a mandatory requirement with the Act is necessary. So it's not a case of an act being done that subsequently is found to have been invalid inadvertently. This would be a case where it's pointed out to the Commission quite clearly that there is a mandatory requirement under the Act which has simply not been complied with.
PN80
THE COMMISSIONER: Okay. What's the the evidence from your witness is to go to what exactly?
PN81
MR VROLAND: We say if you're to move to the substantive matter, there is a question under section 188(c) as to whether or not it's reasonable in all the circumstances to approve the agreement. We say that there's good case authority to suggest that in situations where either a small number of employees are voting on an agreement that might subsequently be used to cover a large number of employees or employees are voting on an agreement where they have not actually been engaged to perform the work that the agreement will cover, the Commission has previously found that the agreement has not been validly made.
PN82
So we would seek to adduce some evidence as to the nature of the employment of the members as we understand it. It's as simple as that.
PN83
THE COMMISSIONER: Well, validly made, I'm not sure what that means.
PN84
MR VROLAND: Genuinely agreed I think is actually the term.
PN85
THE COMMISSIONER: Well 188 if it's under 188(c), 188(c) is more rather a broader provision and it is about genuinely agreed. So that's what you say is the issue? That it may not be genuinely agreed in circumstances where it's a smaller number of a small number of employees have voted for it but it has it will has or will cover a much larger group of employees?
PN86
MR VROLAND: That would be one circumstances where it may not have been genuinely agreed. We say that he explanatory memorandum to the Fair Work Act is quite clear in pointing to a number of case authorities and that's in the correspondence that we put to Mr Gosling. So the applicant can't say they're not on notice of these issues but the kinds of issues that those particular authorities and some subsequent authorities deal with are in that realm. Each case is probably confined to its own well, not necessarily confined to its own circumstances. There are principles that can be drawn from each case but each case will be different and these things do have to be judged on a case by case basis.
PN87
In this matter we say that the agreement that the coverage clause of the agreement is nebulas, impermissibly so. Consequently - - -
PN88
THE COMMISSIONER: It's nebulas?
PN89
MR VROLAND: Yes, vague or uncertain because different to the existing agreement that purportedly covers these employees, there's no clarification as to there's no real clarification as to the classifications of work that are covered under this agreement and there's a suggestion that some of this work might in fact be construction work which is not the type of work these employees have hither to been engaged to perform.
PN90
We say that opens up a very real debate in respect of whether or not the agreement can have been genuinely agreed by the employees.
PN91
THE COMMISSIONER: All right. Can I just go and deal with one issue that might mean we can truncate things, depending on what the position is. You raised the issue of lack of clarity as to whether the manufacturing and associated industries and occupations award 2010 is an incorporated term?
PN92
MR VROLAND: Yes.
PN93
THE COMMISSIONER: Now, I'm just going to ask Mr Gosling about that so you can just sit down for a minute. Mr Gosling, what is the position on that? Is it the intent that that award is incorporated into the agreement or not?
PN94
MR GOSLING: Yes, it is, Commissioner. It's indicated in the relationship (indistinct) award, clause 5 of the agreement. That the agreement is read wholly in conjunction with the manufacturing and associated industries and occupation award and provided where there is any inconsistency between the two, the agreement would prevail over the award to the extent of any inconsistencies.
PN95
Throughout the negotiation period, these matters which are now being canvassed have never been raised as concerns that the unions had in terms of the scope of work. Whether or not they agree with certain elements - - -
PN96
THE COMMISSIONER: I'll hear from you about that in a minute. I just want to deal with - - -
PN97
MR GOSLING: But in terms of that clause of the agreement, the union new and understood as did the employees and reflects that the current agreement and is applied in that way, that the agreement and the award operate in conjunction with each other to the extent except to the extent of any inconsistencies.
PN98
THE COMMISSIONER: Well, I'll just indicate to you that in my view the wording around "reading wholly in conjunction with", it's not clear necessarily that that means that the award is incorporated. I'll indicate this to you, that if the award isn't incorporated that would raise issues for me about whether I could approve the agreement because arguably there is no classification structure without the award being incorporated. Would you be prepared to give an undertaking that for the purposes of clarity that the intent is that the manufacturing and associated industries and occupations award is incorporated.
PN99
MR GOSLING: We're more than happy to give that because that was the clear understanding. The wording your decision is maybe it's vague and uncertain but our certainly clear understanding from a broad spectrum that it operate that way and we're certainly happy to give such an undertaking.
PN100
THE COMMISSIONER: So it would be an undertaking along the lines of that the first sentence of paragraph 5 is taken to mean that the manufacturing and associated industries and occupations award 2010 is incorporated in the corporated term of the agreement. It would then be read with the rest of clause 5. Than you, Mr Gosling. Mr Vroland, that clears that matter up. Does that deal with some of the issues about concerns in terms of coverage because obviously a number of things flow from that. That is there's more that being the case there's more certainty about the classification structure and so on.
PN101
MR VROLAND: This is new to us Commissioner insofar we'd say it's not clear on the face of the words. I accept that an undertaking has been offered to the Commission to clarify that wording - - -
PN102
THE COMMISSIONER: I'm seeking your views on it.
PN103
MR VROLAND: I'm not sure necessarily that that's an undertaking the Commission could accept. I mean the undertaking is that the Commission can accept in relation to agreement approval as I see it really fall under section 190. It says there, section 190(1):
PN104
This section applies if:
PN105
(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185;
PN106
There's a question of whether or not there's a valid application before the commission. But:
PN107
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
PN108
Those are quite lengthy requirements but we just say that this particular clause strikes more fundamentally at the heart of the agreement which is the coverage of the agreement. I'm not sure that the Commission can necessarily accept an undertaking in relation to that to rectify this kind of error.
PN109
THE COMMISSIONER: As you might have heard me say, I'm concerned about whether or not there was even any classification structures in the agreement. Classification structures go to the consideration of the better off overall test. I have to say that on reviewing the agreement, I understood it appeared because as you correctly point out that a number of points the language waxes and wanes between using the word incorporated.
PN110
It's really only that first sentence in 5 that was not clear but it's a BOOT issue. I am entitled to accept an undertaking in respect to my concerns about the BOOT. It's very hard to assess the BOOT when there's no classification structure to test the rates. So you can take it that that's the basis for seeking the undertaking. I'm just asking your views about it. Any other views?
PN111
MR VROLAND: Well, I mean if the Commission pleases then that's certainly if that's the course that you're going to take we'll accept that and move on. We would say however that clause 3 of the agreement is really where the coverage of the relevant agreement is to be determined. In particular at 3.2 and it says:
PN112
This agreement applies to all of the company employees who are employed in the classification of work contained in this agreement and who perform that work at the Otway facility in Port Campbell, Victoria and its associated pipelines and onshore and offshore facilities including the Thylacine platform on work involving repair, replacement, renovation, rehabilitation, upgrades and overhaul of plant and equipment and other maintenance activities.
PN113
Now broadly speaking, those are the types of activities that would fall under the manufacturing award and if that undertaking is to be accepted then to that extent that may rectify the concerns. But we have a great - - -
PN114
THE COMMISSIONER: May or does?
PN115
MR VROLAND: Well - - -
PN116
THE COMMISSIONER: I mean they're my concerns that I have to be satisfied on but do you withdraw the objection I'll just take you back, you know, we started this by you making it clear and we've answered the questions from me about the extent of your objections that I'm hearing about you from where limited to what was in your letter of 20 November.
PN117
MR VROLAND: I was going to speak to that.
PN118
THE COMMISSIONER: Yes, well, and the you pointed out the difficulties with clause 3.2 relating to whether or not it was clear whether the manufacturing and associated industries and occupation award is in fact incorporated. Now, in circumstances where it is going to be clear that it is, the question is, is there still concerns about the classifications?
PN119
MR VROLAND: Well, as I said Commissioner, from the AMWU's part, I'm not sure that that is an undertaking that you can accept to remedy that defect. So we do hold that concern but I don't seek to push the point because you've effectively determined which way you're going in respect to that.
PN120
THE COMMISSIONER: I've told you that I'm accepting the undertaking on the basis that if I was if it's not clear that there's clarity about the award being incorporated, that gives rise to a BOOT concern because it's well, it's virtually impossible to assess if people are better off overall if one doesn't know what the classification structure is. It's as simple as that.
PN121
MR VROLAND: Yes.
PN122
THE COMMISSIONER: Very straight forward.
PN123
MR VROLAND: I understand that that solves the issue as far as you consider that you need to be satisfied. From the AMWU's point of view, we maintain our concerns about that. We don't propose to withdraw the concerns but we don't press the point any further. If that's the Commissioner's - - -
PN124
THE COMMISSIONER: You don't press the point. That's all right, yes.
PN125
MR VROLAND: - - - decision then that's the Commissioner's decision.
PN126
THE COMMISSIONER: We can go around and around like this for a while Mr Vroland but I'll just put it to you again. That being the case that provided that undertaking is properly provided by Mr Gosling that is it's a signed undertaking the question is do the concerns that you raised under that first heading, "lack of clarity regarding scope of coverage" fall away.
PN127
MR VROLAND: Not entirely, that was the second point that I was going to make.
PN128
THE COMMISSIONER: So what's left?
PN129
MR VROLAND: Well the second point that I make it's in the correspondence that we've issued to the applicant is that as it stands the clause does say:
PN130
This agreement applies to all of the company employees who are employed in the classification of work contained in this agreement.
PN131
And so on and so forth. Well, we then would ask you to turn your attention to clause 6.12 of the agreement which is the Halladale and Black Watch Speculant gas field development project allowance.
PN132
Now, that particular allowance there seems to us that it could only apply in respect of construction work. This particular project is the project that is mooted for development of a gas field for work as it's described their very clearly appears to fall outside of maintenance activities. As it says there:
PN133
An employee who is directed to the work on the Halladale and Black Watch and Speculant gas field development project to undertake structural, mechanical and piping installation will be paid a project allowance of $4.50 per hour worked whilst the employee is engaged in such activities. For the purposes of this clause, work will also include associated civil works, piping structures and ancillary equipment needed to integrate this project into the Otway gas plant. This allowance does not apply on any work involving repair, replacement, renovation, rehabilitation, upgrades and overhaul of plant and equipment, et cetera, other maintenance and other maintenance activities.
PN134
It seems to us that there the agreement is purporting to cover construction based activities yet there is no indication of any kind of construction based classification structure or award being incorporated into this agreement. Even if the undertaking is accepted, the words of clause 3.2 will be maintained in this agreement and we would say, well, it seems to us there that potentially there is some kind of attempt to make this agreement cover construction based activities. We say it's impermissible under the circumstances and I'm happy to develop that point.
PN135
THE COMMISSIONER: What are the bits of 3.2 that go to the construction?
PN136
MR VROLAND: Well - - -
PN137
THE COMMISSIONER: Your argument that it covers construction. Which words?
PN138
MR VROLAND: As I said at the outset, we see 3.2 as being vague. But it says:
PN139
This agreement applies to all of the company employees who are employed in the classification of work contained in this agreement and who perform that work
PN140
et cetera. Well - - -
PN141
THE COMMISSIONER: And. And - - -
PN142
MR VROLAND: Yes:
PN143
And who perform that work at the Otway facility in Port Campbell, Victoria and its associated pipelines
PN144
and so on and so forth. I don't know if there's something in that further wording that concerns you but it seems it's maintenance related activities.
PN145
THE COMMISSIONER: So the classifications of work will be the classifications presumably in the manufacturing and associated industries and occupations award?
PN146
MR VROLAND: Well, until the undertaking was given we had absolute concerns - - -
PN147
THE COMMISSIONER: We've moved on from that. We know that now.
PN148
MR VROLAND: - - - about that.
PN149
THE COMMISSIONER: We know that now. So what - - -
PN150
MR VROLAND: The point I'm making is that that might crystallise a range of classifications to which this agreement could apply but nonetheless, it seems that the agreement is purporting to apply to construction based activities which is completely unacceptable from our point of view.
PN151
THE COMMISSIONER: If you don't want to make any concessions on that I understand but I don't understand I'll be quite frank with you, I don't understand the submission in respect to 3.2 in light of the undertaking that's provided. I do hear what you say about 6.12 and the evidence from your witness will go to that point will it? About what the type of work that that contemplates?
PN152
MR VROLAND: That's right.
PN153
THE COMMISSIONER: So do I understand what you 6.12 in some way expands what is meant by 3.2?
PN154
MR VROLAND: That's a danger that we see, particularly in absence of the undertaking. Well, the undertaking is given but all the undertaking really does is raises the level of the water so far. Even so, clause 3.2 leaves us with concerns that there are other elements of the agreement which might effectively amount to classifications under the agreement. This is a pretty obvious submission in the absence of the undertaking. With the undertaking it clarifies a large portion of what's intended but it doesn't necessarily solve the problem in entirety.
PN155
I mean the employees didn't vote on an agreement that had an undertaking attached to it that the manufacturing award classifications would apply. They voted on this document. Now, they if read this document they might think and would be quite entitled to think that there was some expectation that construction based work which falls under a different award, different classification structures, may be expected under this agreement. We say that that does raise a series of problems. There are authorities to indicate that that may in fact result in the agreement not being genuinely agreed.
PN156
THE COMMISSIONER: Okay. Is that it under that point?
PN157
MR VROLAND: Yes, although we would draw your attention to the relevant authorities in that respect. But probably the better course would be to hear evidence first.
PN158
THE COMMISSIONER: Sure. Do you want to go to that now?
PN159
MR VROLAND: Yes, we would.
PN160
THE COMMISSIONER: So the name of our witness is?
PN161
MR VROLAND: Mr Tony Hynds.
PN162
THE COMMISSIONER: Yes, Mr Gosling?
PN163
MR GOSLING: May I just intervene Commissioner. I'm not sure whether it serves any purpose to call evidence but that's a matter for the AMWU. If the evidence is in relation to clause 6.12, I can indicate to the Commission that it is now moot in respect of that work due to delays and other factors associated with this agreement. That work has been awarded to another contractor. At the time this agreement was entered into with our employees, we were prospectively looking to negotiate with a client to undertake the work however the delays in getting this matter finalised expeditiously, that work has now been awarded to another contractor to its inclusion and that clause in this agreement as no application in to the future.
PN164
It's a one off project, it's awarded and it's under construction or under development at the present time. So to the extent that it played a part at the time the agreement was struck, it no longer plays a part in terms of an applicable clause under this agreement. It has no work to do anymore because of the effluxion of time another contractor has been awarded that work. So I'm not sure that Mr Hynds' evidence if it goes to that point serves any purpose to this Commission because it's not work we'll be undertaking.
PN165
THE COMMISSIONER: Thanks, Mr Gosling.
PN166
MR VROLAND: Commissioner, I've just sought instructions. We would be prepared to accept an undertaking from the company to that end that this agreement would not be used in any attempt to try and cover work that's performed in the construction field. If that was the case then we would be satisfied on this point.
PN167
THE COMMISSIONER: Well it's nice that you might like to accept undertakings but I'll remind you, Mr Vroland, it's I that seek them.
PN168
MR VROLAND: It would not be an undertaking for the purposes of the BOOT test. It's an undertaking to the AMWU that we could rely on later in proceedings.
PN169
THE COMMISSIONER: I'll ask you what you think about that Mr Gosling?
PN170
MR GOSLING: I certainly have some difficulties in accepting what seems to be a broad undertaking that we won't undertake any construction work under this agreement. Just simply because an agreement term related to a specific project is no longer applicable, this agreement will apply in the circumstances of where it has coverage and work is awarded to Broadspectrum Australia Pty Ltd.
PN171
If the work does not come within the terms of this agreement then the work cannot be performed under this agreement and another agreement may have to be struck. But to say that that's as a broad undertaking in advance of any of those sorts of circumstances arises is too broad a demand we say of the company to give up any rights to use this agreement where the circumstance of that work fall clearly under the terms of this agreement. We don't know what they are at the present time.
PN172
THE COMMISSIONER: The issues about coverage go to the fairly chosen issue, don't they?
PN173
MR VROLAND: Not solely to the fairly chosen issue, Commissioner. They also go to section 188(c).
PN174
THE COMMISSIONER: Right. Yes, okay. Well, you've heard Mr Gosling. He's indicated on the transcript that because of the effluxion of time, 6.12 won't be used. That's not an undertaking, it's an indication of what he sees into the future as a result of the awarding of particular contracts. I'm not seeking an undertaking that that clause doesn't apply. One, because I don't need one. Two, the I couldn't accept it anyway because it would be detrimental. There's an allowance in there that would be no longer there, no matter what Mr Gosling says about whether it would apply or not.
PN175
The question is for you you might want to take some instructions about it do you want to continue to press the point by what's just been stated.
PN176
MR VROLAND: I would seek the opportunity to take instructions. My friend might have something to say.
PN177
MR GOSLING: Not in respect to that matter. I just wondered if the Commission wants to hear me in relation to the signing of the agreement and this question has continually arisen about the fairly chosen aspect of - - -
PN178
THE COMMISSIONER: Sure, I'll obviously be looking from a response from you. To a certain extent I'm playing this, Mr Gosling, on the basis that objections have been raised, we'll go through them, you'll hear them all and you'll get a chance to respond on every matter. So fear not on that point. We might just adjourn for five minutes while you consider the position, Mr Vroland.
SHORT ADJOURNMENT [2.57 PM]
RESUMED [3.10 PM]
PN179
THE COMMISSIONER: All right. Yes, Mr Vroland.
PN180
MR VROLAND: Thank you, Commissioner. The AMWU doesn't seek to press the point in respect of whether or not the agreement will cover construction work any further. We have heard the exchange between yourself and my friend from the Bench, and we accept the position as stated on transcript. We do, however, maintain concerns with respect to 188(c), which is that there are reasonable grounds for believing the agreement has not been genuinely agreed to by the employees.
PN181
The basis of those concerns really go to the scenario whereby we say that this is a small number of employees who have voted on an agreement that could possibly, and is very likely, in fact, to have much broader application in the event that a maintenance shutdown called by the relevant contractor at the - sorry, the relevant site operator at the Upwey Origin site, and we say that this does bring up questions of fairness with respect to the general scheme of the Act and collective agreement making and approval from the Fair Work Commission.
PN182
There are some authorities that point in the direction to suggest that such an agreement may not be validly made. I suppose there are two courses here, Commissioner: 1), the matter could be stood down. I would accept that my friends have not had a lot of time to prepare in respect of such an argument, although it is indicated in the correspondence that is presented to them; 2), we could proceed. I will instead call Mr Kelly to give evidence rather than Mr Hynds as to the nature of work that may be performed given the historical basis of the way that work has been performed under - - -
PN183
THE COMMISSIONER: That will be, the extent of Mr Kelly's evidence is about the - will go to the historical nature of the work that's been performed under the predecessor agreement.
PN184
MR VROLAND: Yes. Yes, that's right.
PN185
THE COMMISSIONER: Yes. All right, thanks.
PN186
MR VROLAND: I suppose, Commissioner, just to be clear, I might ask Mr Kelly about his understanding of the prospect of future work as well.
PN187
THE COMMISSIONER: Yes. Well, I should have said, and to the extent that history will predict the future.
PN188
MR VROLAND: Yes.
PN189
THE COMMISSIONER: Yes, I think that goes without saying. I probably should have said it. Thanks, Mr Vroland, sit down. Mr Gosling, all that being the case, I am proposing to hear that evidence. Have you got any views about that on a procedural level?
PN190
MR GOSLING: We see no utility in it, but if the Commission wants to hear that evidence, that's a matter for the Commission. We see no utility in that being brought, but we certainly have submissions about that whole question that fairly chose a - and to us, as to the matter of whether the Commission wants to hear from us now on that issue as to whether or not you need to go to evidence, and similarly about the question of the signing of the agreement.
PN191
It seems to be for Mr Vroland a fundamental issue, which we say has been contrived by the union to bring about what they are seeking now, and that is to say the agreement is invalidly lodged.
PN192
THE COMMISSIONER: Yes, and I will hear from you about all of those things. The issue about when the evidence is going to be led, as I understand it, really goes to what is put as a submission, that there is scope for the agreement to be applied to a far broader extent than the three or four employees who voted for it, and in those circumstances, that I should find under the general consideration in 188(c) that I shouldn't approve it.
PN193
Now, what I'm interested in hearing from you is, we have had the exchange about the construction issue, but is there anything that you would want to say at this point that might satisfy me that that wouldn't be of concern, which might truncate the proceedings? I guess that's where I'm going.
PN194
MR GOSLING: Yes, and that's where we would seek to get to. Our submissions should bring the Commission to the view that there is no need and no value or utility in hearing evidence from others as to the operation of this agreement about its operation into the future, because it's a fundamental issue for us and I have already indicated to the Commission, we have already lost a contract because of the effluxion of time and delays in the agreement getting to a point where it's here for approval today.
PN195
THE COMMISSIONER: Yes.
PN196
MR GOSLING: And I can indicate without fear of being contradicted, if this agreement is not approved we won't have to worry about its future operations because we will not be awarded the work to which they are seeking to have covered beyond the existing employees. The client will not award a contract - - -
PN197
THE COMMISSIONER: No, that may be the case but really the question is this: if there's anything that can be said about the scope of the agreement being applied. So clearly the union's putting a position that it's in prospect, I'll put it as low as that, that the agreement would apply far more broadly than the three or four people employed. There have been decisions at this Commission depending on the facts where it has be held, or that - - -
PN198
MR GOSLING: Yes, and I'm (indistinct) to that. I'm in a position to outline to the Commission what is the future utility and use of this agreement, and to go to that very issue about the scope of the employees to be covered by it and the scope of the numbers of employees to be covered by it.
PN199
THE COMMISSIONER: All right.
PN200
MR GOSLING: It's not in contest in that sense. So calling evidence about that, we can give direct evidence being the company who may or may not win the work and be employing those people covered under this agreement. But if I can take you to that issue, it's that we have been negotiating this agreement since March 2014. Now since that time we have been negotiation with the AWU and the AMWU as bargaining representatives. The employees that we have and that they represent are four employers. That is 100 per cent of the work force that we have down there, and we have sought to find an agreement to cover those employees to carry out maintenance work into the future.
PN201
When it came to a point 12 months ago we went to a ballot which was unsuccessful, and we are continually negotiating to get to a point where it went to a further ballot which is the subject of this application. So at the point throughout these negotiations and right to the end of the negotiations, we negotiated with 100 per cent of our employees. So as far as the scope is concerned we're not in a position to look and speculate as to what may be the future employees covered by this agreement and hold off, negotiate an agreement until that position may exist or not exist. We can only deal with the facts and circumstances that arise at the time of the negotiations right up until the point when we seek to have the agreement approved by the workforce. As I've indicated, that was - 100 per cent of the workforce were involved and 100 percent of the workforce voted for disagreement.
PN202
So as far as the future's concerned, there is in prospect an upgrade shutdown project coming up in February of next year. Now, we do not have a contract to perform that work, and as I've briefly outlined, without this agreement being approved we will not get a contract to perform that work. And that is clear from the client, that he will not contemplate bringing a contractor in who does not have an enterprise agreement. So for us to accede to request or the Commission to accede to the request to defer these proceedings does nothing more than ensure that the agreement will have no utility in future work because the work will be awarded to somebody else. We suspect that that's the desire of the union.
PN203
THE COMMISSIONER: Well I'll indicate I'm not interested in deferring them. They'll only be deferred if you're looking to defer them because you want an opportunity to respond. I'm just interested in this point about it being clear that should you win a further contract, as I understand it, there could be work done on a shutdown project.
PN204
MR GOSLING: Yes, and I'm informed the numbers of potential employees under that contract if - the Broadspectrum one, it was up to 130 workers, and that the project is likely to commence in March of next year. And it is shutdown work, which is work notwithstanding Mr Vroland's concerns about clause 3.2. The maintenance work down at Origin Otway has always incorporated shutdown work. It is a common feature in process plants that shutdown work is undertaken at various periods and that the existing employees undertake that work in conjunction with additional employees being brought on to perform that work. There is no contest that that's the case, and it is very much in part the reason why we are keen to get an agreement in place to give ourselves the best chance to win that work.
PN205
So Mr Kelly may give evidence, or others may give evidence, but we say it's not in context. We are seeking to win that work and we must have this agreement in place to bring that about. But as I've already indicated, in negotiating an agreement we can only negotiate with our employees. None of them were excluded from the bargains and it incorporated 100 per cent of the workforce that we have. We can't bring in other people who may prospectively get a job if we win the contract to give them a say in the voting of a new enterprise agreement that may cover their terms and conditions if they get a job with us. We don't know who those people are, we don't have a contract, and it's an impossible scenario to suggest that we should wait to negotiate an agreement until those employees or potential employees are known. That's fairy land in terms of winning contracts in these circumstances. So to suggest that we should hold off until that occurs is a nonsense, in our suggestion.
PN206
THE COMMISSIONER: Just before you go on, thanks Mr Gosling. Mr Vroland, if that was the extent to where the evidence was going he's been pretty clear about what the future prospects are which may or may not mean that this agreement does cover a large number of employees, depending on whether a contract's won. If that was where the evidence was going, is there a need to call - - -
PN207
MR VROLAND: No.
PN208
THE COMMISSIONER: No, thanks. All right. Well look, before you rise I might just go to - just so we've got everything out on the table from the AMWU. That being the case, you can make your points about 188(c) and then the issues with defects, alleged defects in the approval procedure. Are there still issues you want to raise there?
PN209
MR VROLAND: Well, Commissioner, in the correspondence to Mr Gosling we did ask for certain documents to be provided. They haven't been provided to us so at this point in time we don't see that the application has had the notice of representational rights attached to it.
PN210
THE COMMISSIONER: Well, I have. I've got a statutory declaration to that effect. You haven't got anything to suggest that that's not been provided.
PN211
MR VROLAND: Well it hasn't been provided to us. We simply haven't seen it.
PN212
THE COMMISSIONER: Well it doesn't have to be provided to you. Well, I've seen it.
PN213
MR VROLAND: Yes.
PN214
THE COMMISSIONER: I'm satisfied. You've got nothing to bring to me that suggests that what's been put in the statutory declaration by Mr Day is wrong.
PN215
MR VROLAND: Well that's correct, except that we just simply haven't seen it. So we can't say it's wrong but we say that he statutory declaration has to be provided to the AMWU on request and we just simply don't have that as an appendix, nor do we have the letter that was said to be put to employees explaining the terms of the agreement. We simply don't have a copy of that. We did ask for that, it hasn't been provided.
PN216
THE COMMISSIONER: Anything else?
PN217
MR VROLAND: If you just bear with me for a minute, Commissioner. Well, there was the issue that we raised in respect of the answers provided to that at paragraphs 2.16 of the F17 in relation to shift workers. I think it's really a defect in the F17 as much as anything else, but the point that we would make there is that the answers just simply could not give any courage to the Commission that the relevant terms of the Fair Work Act have actually been complied with.
PN218
THE COMMISSIONER: Well the award's incorporated. That deals with that issue, doesn't it?
PN219
MR VROLAND: It might actually do that, Commissioner.
PN220
THE COMMISSIONER: You agree with that?
PN221
MR VROLAND: It probably does, Commissioner, yes. I would agree with that.
PN222
THE COMMISSIONER: Anything else under that last heading of defects and approval procedure that you seek to press?
PN223
MR VROLAND: No, Commissioner.
PN224
THE COMMISSIONER: No, all right. So any more you wanted to put on the - that leaves us with, if I'm not mistaken, the extent of the objection that you raised now is twofold. 1) This argument about I can't approve the agreement because it wasn't signed by a representative of employees in the first instance, and the second limb is that under 188(c) I can't be satisfied that there was - well, that there's reasonable grounds for believing the agreement has not been genuinely agreed to by the employees because of the prospect that it might apply to others. That's the extent of the objection now?
PN225
MR VROLAND: Yes, Commissioner.
PN226
THE COMMISSIONER: All right. So what more do you want to say to me on - I think you've said - well I'll tell you whether you've said everything. Is there anything you want to say to me about those two? Then I'll obviously hear from Mr Gosling.
PN227
MR VROLAND: Certainly, Commissioner. I'll just start by handing up a copy of the explanatory memorandum to the Fair Work Bill, which gives some direction in this respect. Now, you can see there on the page that you have in front of you it discussed clause 188, when employees have genuinely agreed to an enterprise agreement. I won't read the entire section but I ask you to draw your attention to paragraphs 796 and 797. It says there:
PN228
Paragraph 188(c) provides that FWA must only approve an agreement if there are no other reasonable grounds to believe that the agreement was not genuinely agreed to by the employees. FWA can refuse to approve an agreement where there are reasonable grounds to believe the agreement has not been genuinely agreed to by the employees who will be covered by the agreement.
PN229
And then at 797:
PN230
In determining whether there are reasonable grounds for believing that the agreement has not been genuinely agreed to by employees, FWA may consider whether the agreement has been validly made in accordance with clause 182 (see, e.g., Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission [1999] FCA 847; (1999) 93 FCR 317 and the decision of the AIRC in Grocon Pty Ltd Enterprise Agreement (Victoria) (2003) 127 IR 13).
PN231
It's really that first authority that we would seek to draw your attention to, and a further authority in the matter of Cimeco Pty Ltd and CFMEU, AMWU, CEPU, and the citation there is [2012] FWAFB 22206 which was a full bench decision handed down by Ross J, Hamilton DP and Spencer C. I would just like to talk to those particular authorities in turn, and I will try and keep my submissions brief. Commissioner, I do have copies of those authorities for you.
PN232
THE COMMISSIONER: Yes. Thanks.
PN233
MR VROLAND: We would acknowledge, Commissioner, that the fact scenario in both of the cases that I'm going to talk to are slightly different than the current scenario. We'll talk first to the Federal Court case which I've already given the citation. This is in fact a different print, this is the Federal Court print of the document which was the only one we could get access to in sufficient time, but essentially it is the same decision. If I might refer to this as the CFMEU and AIRC case.
PN234
THE COMMISSIONER: Sure.
PN235
MR VROLAND: Yes. Now, the background to this case can be fairly simply stated. The relevant facts can be found at paragraphs 43 through to 44 of this decision. Essentially as you can see there - I'll summarise, I won't read out these particular sections - but this deals with an application for approval of an enterprise agreement which was previously rejected by Deputy President McCarthy and ultimately it came to the Federal Court to consider whether or not the objection was within jurisdiction. In respect of the facts the applicant, who were Mine Management, they employed 22 employees. They put an agreement to the vote for employees, but the issue was they had not actually commenced work at the relevant mine at the time that the agreement was put to the vote of employees, and that's apparent. You can see there the key question that was sought to be determined is apparent at paragraph 121 where it says,
PN236
The question is therefore whether an agreement regulating terms and conditions of employment in a proposed single business made with employees who may in the future be employed in that business but are not yet so employed qualifies as an agreement that may be certified under the Act. In our view, the preferable conclusion as a matter of both textual and purposive interpretation of the Act is that it does not.
PN237
We would accept that this is slightly different from the facts that have been established in this case. This deals with a body of employees who were set to work on a particular project and the work just simply hadn't commenced.
PN238
I won't labour these proceedings by taking you through all of the subsequent paragraphs but we would commend those paragraphs to you, Commissioner, and we would say that these are matters that should be considered in the decision that you make.
PN239
If you turn to paragraph 126, you can see there that obviously this is referring to agreements that were made under the earlier legislation, the Workplace Relations Act, but of course you will remember that the explanatory memorandum clearly indicated that this was relevant to their current considerations.
PN240
THE COMMISSIONER: Yes, absolutely.
PN241
MR VROLAND: And it says there,
PN242
Section 170LT(6) requires that a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement. It is plainly (indistinct) concerned with the authenticity and, as it were, the moral authority of the agreement.
PN243
It is perfectly understandable, indeed one might reasonably think plainly necessary this be so. The principal object of the Act as a whole is set out in section 3, to provide a framework for cooperative workplace relations by, among other things, providing the means - and it then goes to quote the Act,
PN244
Providing the means for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level upon a foundation of minimum standards, and (2) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment, and (e) providing a framework of rights and responsibilities for employers and employees and their organisations which supports fair and effective agreement making and ensures that they abide by awards and agreements applying to them.
PN245
And it goes on to say,
PN246
There can hardly be fair agreement making between employer and employees about wages and employment conditions in a workplace - a mine is a good example - before both sets of parties have actual experience of the work and its place of performance.
PN247
We would contend that in the circumstances where work is going to be performed at a maintenance shutdown, such as is clearly the case before you, that does actually fall within the parameters of this concern. You have heard from my friend Mr Gosling that this agreement is likely, quite likely to apply to a significantly larger body of employers than the small number that voted upon it. That is a significant concern for the AMWU. We're answerable to our members in respect of any agreement that we are prepared to sign up to, but certainly that's not the consideration that you have. You need to consider whether or not the agreement has actually been made in accordance with the objects of the Act, and the objects in particular of enterprise agreement making.
PN248
The decision then goes on to say at 127,
PN249
In short, the Act clearly indicates a concern for fairness and efficacy in agreement making as well as flexibility. The subject matter of the Act makes it understandable Parliament had such concerns. A consideration of those concerns supports the interpretation we would prefer, we consider preferable on more narrow grounds.
PN250
And then it goes on to say that the agreement that was certified by Harrison SDP was incorrectly certified, the certification was ineffective and consequently no certified agreement came into existence as a result of proceedings before her.
PN251
So as we say, it's very clear from the explanatory memorandum that these are significant considerations that the Commission should have with respect to section 188(c). The relevant objects of the Act can be found at section 171 - sorry, the objects of the part of the Act that deals with enterprise agreement making. At section 171 it says,
PN252
The objects of this part are (a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits, and (b) to enable the FWC to facilitate good faith bargaining in the making of enterprise agreements including through (1) making bargaining orders, (2) dealing with disputes where the bargaining representatives request assistance, and (3) ensuring that applications to the Fair Work Commission for approval of enterprise agreements are dealt with without delay.
PN253
It's really 171(a) that we talk to here. We say that it would simply be unfair to allow an employer to circumvent the general scheme of the Act by coming to an agreement with a small body of employees which is clearly intended to apply to a significantly larger body of employees. There is no cavilling about that particular point. We say that the proper scheme of the Act is that if an employer was seeking to do so, they should enter into a greenfields agreement with relevant unions rather than try and subvert that scheme of the Act. That would the appropriate way to proceed.
PN254
I will make a point about the coverage of this particular agreement because we've had some discussion about this so far, and as we understand it now the agreement is to be taken to include all of the classifications of the manufacturing award. An issue there that arises immediately is that the wage scale that's in the agreement does not deal with all of the classifications in the manufacturing award, and I would ask you to turn your attention to the relevant clause.
PN255
THE COMMISSIONER: Of?
PN256
MR VROLAND: The agreement - the proposed agreement.
PN257
THE COMMISSIONER: Yes.
PN258
MR VROLAND: Which is clause 6, wages and allowances.
PN259
THE COMMISSIONER: Yes.
PN260
MR VROLAND: You can see there that the wages and allowances - the wages that are provided for go to a range of ostensible classifications, C12 to C8. There's a classification of C10.5 which in my view was unknown to the manufacturing award.
PN261
We would submit that there is no classification of C10.5 in the manufacturing award, but it would concern us, and we think it should be of concern to the Commission, that this agreement might on one view be taken to have the full scope of the classification structure of the manufacturing award, and if that were to be the case by the undertakings that have been given, then we would have a small body of employees who only fall within this range of classifications, we assume fall within this range of classifications that are before you, voting on the terms and conditions of other employees who fall significantly outside of that classification of this wage table, and consequently the only underpinning wages for such employees would be the award terms and conditions, and that throws up a range of concerns in respect of how such employees would be considered with respect to the BOOT test.
PN262
THE COMMISSIONER: Is that speculation or - you're not saying there are such employees. Mr Gosling has put that 100 per cent of them, 100 per cent of the people that are there vote for the agreement.
PN263
MR VROLAND: Well, 100 per cent of the people who were there voted for - I'm not sure that that's entirely correct. I think the figures are in the F17, if I recall. There was one that didn't - but I might be wrong about that but that's - - -
PN264
THE COMMISSIONER: So they voted, they cast a vote. I mischaracterised that. It was actually three out of four voting for the agreement.
PN265
MR VROLAND: Yes.
PN266
THE COMMISSIONER: But in terms of opportunities to vote, which is what I understand you're going to, you're saying that there's other employees beyond the four who could have voted, who are covered by classifications outside of the classifications in clause 6.1.
PN267
MR VROLAND: No, well, I'll make two points there. I will say that there are more than four classifications, therefore those employers are voting on classifications that have no application to them, they must be, simply a mathematical fact, but also those employees - sorry, I'll take a step back. We would say that if the undertaking that has been given to the Commission is to be read to wholly incorporate the terms of the manufacturing award, bearing in mind the concerns that you expressed, Commissioner, that there is otherwise effectively no classification structure in this agreement, the undertakings that have been given serve to incorporate the entire classification structure of the award.
PN268
THE COMMISSIONER: Subject to any inconsistency with the agreement, yes.
PN269
MR VROLAND: Correct, yes, and then that opens another can of worms, I suppose, in that it might not necessarily be inconsistent with the agreement for the other classifications that don't appear in this wage table to nonetheless apply, thus enabling the employer to employ a whole range of employees on essentially award terms and conditions, which would then raise concerns about whether or not those employees would genuinely be better off over all, because of course they need to be better off overall as opposed to simply on par with award terms and conditions.
PN270
But to return to the initial point, we would say it's just fundamentally unfair to have such a small group of employees voting on such a large expanse of classifications. We would say that suggestion is reflected in the authority that I have drawn your attention to.
PN271
There are other authorities, and unfortunately I don't have copies available to present to the Commission, but I can draw the Commission's attention at least to a recent decision of the Federal Court of Australia in the Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) FCA FC 16. I didn't intend to talk to this particular decision but the point that I would make would be very brief, which is that one of the final paragraphs of this particular decision, paragraph 83, it dispenses with the matters at hand but it then says,
PN272
The Full Bench did not say directly that it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest or that the group thereby constituted may not be fairly chosen. I do not exclude the possibility that such an assessment may be available in a proper case but it is not necessary to pursue that question here.
PN273
So it's not authority to say that it's necessarily unfair for this kind of circumstance to arise, but it certainly indicates that the Federal Court is at least alive to the proposition that such a circumstance may be unfair under certain circumstances.
PN274
The other decision that I draw your attention to is, as I say, the decision - I have already given the citation but the Cimeco decision.
PN275
THE COMMISSIONER: Yes.
PN276
MR VROLAND: I have a copy of that to hand up. This case, which was heard by the Full Bench of Fair Work Australia in 2012, dealt with the respondent union's objections to an enterprise agreement approval application on a variety of grounds, but really pertinent to these proceedings the Commission, the Full Bench did make some observations with respect to analogous circumstances that might arise.
PN277
The facts of the case are not particularly relevant, save for the circumstances whereby a number of employees were asked to vote on a particular agreement known as the Midwest Agreement. Four of those employees had not been mobilised to actually perform that work and the full bench of the Commission dealt with this particular aspect of the case from paragraphs 49 onwards. It was not actually a crucial part of the decision. I'm not trying to suggest that. It was more in the realm of obiter dicta, but does say there at 49:
PN278
As we have already noted, fourteen Cimeco employees voted to approve the Midwest Agreement on 16 September 2011. Hence, in the usual course, the agreement would be taken to have been made on 16 September 2011. But, at the time the Midwest Agreement was purportedly made, four of the Cimeco employees who voted to approve the agreement did not fall within the area and scope of the Midwest Agreement as set out in clause 3(a) of that agreement.
PN279
It then goes on - and I won't read out paragraph 50, but it does go on from 51 to 53 to say that the full bench didn't find counsel for the applicant's submissions persuasive. As it says there:
PN280
As we have previously mentioned the expression "will be covered by the agreement" in section 182(1) does not indicate future likelihood, but rather expresses a determinate or necessary consequence. It follows that the four employees working on the Marandoo agreement were not entitled to vote to approve the Midwest Agreement because, at the time of the vote, they did not fall within the area and scope of the agreement. But in the particular circumstances of this case, the erroneous inclusion of these four employees does not invalidate the making of the agreement.
PN281
It goes on, but we refer to this case simply to say that what is clearly established there by the full bench is that if employees are not actually engaged to perform particular work at the time that the agreement is being made, then they do not necessarily - well, they don't have a right to vote on the agreement. We say that that would be the situation here to some extent, to say the employees who are currently performing work under the 2011 agreement would be performing maintenance activities in general, but they're not performing work on a maintenance shut, which may be work of a different nature and it may, as we have also submitted, be work falling under different classifications.
PN282
We, therefore, say that such employees should not properly be entitled to vote on an agreement that might have that future scope of application. I will leave my submissions at that unless you have any questions.
PN283
THE COMMISSIONER: Mr Gosling stated that negotiations have been going on for this agreement since March 2014. Do you agree with that?
PN284
MR VROLAND: Yes, I think that's accurate.
PN285
THE COMMISSIONER: This decision you have just taken me to, weren't the circumstances of this that four employees voted for the agreement despite the fact that they weren't at the time that the agreement was put to vote covered by the agreement? As it says in 52:
PN286
Because at the time of the vote they did not fall within the area and scope of the agreement.
PN287
That was the problem with that case, wasn't it?
PN288
MR VROLAND: I think that's more a reference to geographical area and scope. Those employees were engaged to perform the type of work that the agreement would otherwise cover, but they weren't mobilised in the geographical scope of the agreement. That's why it was considered that they were not eligible to work.
PN289
THE COMMISSIONER: I'm struggling with the parallel here. There is no suggestion that there were employees who voted for this agreement who were not entitled to vote for it.
PN290
MR VROLAND: We say the issue there is that the agreement, as we've heard, may well be used for activities such as maintenance shuts. You haven't been given any absolute clear undertaking that it won't be attempted to be used for construction work, but we say that that work is not currently being performed and those employees haven't been engaged to perform that work.
PN291
The correct and preferable mode of dealing with that kind of work would be a union greenfields agreement. It's actually not called a "union greenfields agreement" of course under the Act, just a greenfields agreement.
PN292
THE COMMISSIONER: Just on what we were referring to as the CFMEU v AIRC case, in that matter you would agree looking at the decision there was reference at 126, which you took me to:
PN293
Section 170LT(6) requires that a valid majority of persons employed at the time whose employment would be subject to the agreement must have generally made the agreement.
PN294
The factual circumstance in that matter was that there was no work going on at the time. That was the key issue in that matter, wasn't it, that they weren't - as the bench said in that case, that:
PN295
It could hardly be fair agreement‑making before both sets of parties have actual experience of the work and its place of performance.
PN296
That was turning on the point that they hadn't got there yet. Nothing had started. That was perhaps more in the nature of a greenfields environment. Here we have had four employees vote for an agreement where the work is - there's no dispute about that - under way. I just don't see the - I'm struggling with the link.
PN297
MR VROLAND: Well, Commissioner, as I said at the outset, the circumstances under both the Cimeco case and the CFMEU case are not directly on all‑fours with the current matter. I'm not trying to suggest that. Clearly I'm drawing your attention to this case because the explanatory memorandum requires - well, points us clearly in that direction.
PN298
The point that I am making is that although these employees are engaged to perform some work which might conceivably occur under this agreement, there is a much broader scope of work under the agreement on the view that in particular the entire classification structure for the Manufacturing Award is incorporated into the agreement. In particular, we've heard the evidence that a large body of employees is likely to be engaged in order to perform work on maintenance shuts on the Origin Otway site.
PN299
We say, well, that work in particular is not currently being undertaken. It just simply hasn't occurred yet so we say, well, yes, you've got employees who are employed just as in the CFMEU case and in some respects they are on standby to perform work - they're not actually performing work that is clearly the intent of the applicant to have them perform at some point in the future.
PN300
THE COMMISSIONER: If they win the contract.
PN301
MR VROLAND: If they win the contract.
PN302
THE COMMISSIONER: Yes.
PN303
MR VROLAND: But the further point that we would make - and I've made the point, but just to reiterate, it's not one that there has been, as far as we can tell, a significant authority handed down but, as I've pointed out to you the Full Court at least of the Federal Court is alive to, is that simply the circumstance of having a very small body of employees voting on an agreement that may well apply to - and in fact in this case is very likely to apply to - a much larger body of employees, is potentially so unfair as to fall foul of section 188(c).
PN304
THE COMMISSIONER: So what is the employer to do then? These employees are entitled to collectively bargain and make an agreement. You would agree with that proposition?
PN305
MR VROLAND: Yes.
PN306
THE COMMISSIONER: But you say this agreement cannot be made because in the future it might extend to a further group. Where does that leave the rights of the current employees to collectively bargain?
PN307
MR VROLAND: Well, we say that they of course have the right to collectively bargain provided there is more than two employees. That's clear under the Act. However, the nature of the agreement that they bargain for should be appropriately limited in scope. If they are only falling within a small range of classifications in the Manufacturing Award, then the nature should be so limited to that range of classifications in which they're actually performing work.
PN308
Here we have a situation where potentially they are agreeing to a classification structure that is the entire classification structure of the Manufacturing Award and we say that's just unreasonable and not fair. Of course the ambit of section 188(c) is that rule.
PN309
THE COMMISSIONER: Right. So that all now turns on the nature of the undertaking. In terms of your view on the undertaking that's proffered, is that because it imports the entire Manufacturing Award - incorporates, I'm sorry, including the entire classification structure, that's the difficulty. If that was somehow limited to the classifications that are currently in the agreement, then that wouldn't be a problem. Is that the logic of - - -
PN310
MR VROLAND: I take your point, Commissioner, but we still say that it is fundamentally unfair to have such a small group of employees vote on an agreement when it is clear that the intent is for a much larger group of - body of employees to be employed under that agreement.
PN311
THE COMMISSIONER: But you're not answering my question.
PN312
MR VROLAND: I take your point.
PN313
THE COMMISSIONER: You would agree with this proposition, wouldn't you: if I was to agree that I couldn't approve the agreement on that basis, that would have the effect of leaving these employees in a position where they would not be able to enter into an enterprise agreement. Isn't that right?
PN314
MR VROLAND: Sorry, approve the agreement on the basis that the - - -
PN315
THE COMMISSIONER: If I was to say, well, I'm not going to approve the agreement because it may, subject to further tendering processes, apply to the tender that Mr Gosling referred to, but I agree with you that under 188(c) I've got concerns about genuine agreement, my query is where that leaves the existing employees. They're unable to make an agreement; an agreement that has a scope that applies to the work in the Otway Basin - there's no trouble with that being a fairly chosen group - and has classifications that pertain to the Manufacturing Industry.
PN316
Surely the outcome of what you seek me to do is that they are just not in a position to reach an enterprise agreement. Isn't that the outcome?
PN317
MR VROLAND: No, they could reach an enterprise agreement with an appropriate scope. That scope - you know, I wouldn't seek to try and absolutely define that here, but we would say, well, there is no barrier to them reaching an enterprise agreement that is a far more limited scope and perhaps excludes major maintenance shuts. That is a means by which they could still nonetheless be covered by an enterprise agreement.
PN318
THE COMMISSIONER: Okay. Thank you. Mr Gosling?
PN319
MR GOSLING: Thank you, Commissioner. If I could take the last point first.
PN320
THE COMMISSIONER: Yes.
PN321
MR GOSLING: In terms of whether or not an employee should be allowed to make an agreement with an appropriate drafted scope, clause 3.2 of the agreement is the scope of work that the employees currently undertake. The difference between this and what my learned friend is putting is the numbers of employees who will be undertaking that work. In our submission, there is no issue with our employees understanding what the scope of work is and it's our submission the scope of work is work they are currently performing and perform on a daily basis, including shutdown works.
PN322
The difference between the shutdown works that they perform today and what may be undertaken in March, is simply the scale of the shutdown. These plants do shut down on a regular basis to do maintenance, to do upgrades, to do overhaul works. They schedule in large shutdowns, appropriately bring the plant down and then bring in a suitable number of employees to perform all the work in the shortest period of time possible to have the least impact on production.
PN323
Nothing would change in this agreement from what the employees are doing now to what the future employees, if they are contracted, would be doing. The scope in both agreements - if I take my friend's argument that we should have an appropriately drafted agreement, the scope clauses would be identical. We say it is certainly open to the employees to reach an agreement around the scope of work which they currently perform and will be performing into the future, albeit assisted by a number of other employees.
PN324
As you indicate, employees - and it has been conceded - have the right to enter into an enterprise agreement appropriately covering the work they do now and will be doing into the future. In respect of the authorities relied upon, we say that none of those authorities have any bearing or any direct relationship with the current agreement and circumstances. I think the Commission's already alluded to the fact that they go to employees not yet engaged on the work or persons not yet engaged or not yet mobilised. The employees we're talking here, as I've already indicated, is 100 per cent of the employees, so the scope of coverage of employees is not in question. And those employees are long-serving employees. They're not people who have been mobilised today for the purposes of entering into an enterprise agreement.
PN325
As the Commission's already, we started bargaining in March of last year. I've worked with Transfield Services now for the last 5 years and all of these employees predate me. These are long-serving employees who have been undertaking this very work under other agreements, approved by this Commission, and this is nothing more than the next iteration of that. And nothing is changed in terms of what they do, how they do it and when they do it, just the numbers of employees who may be engaged at the time.
PN326
So we say the authorities relied upon have no bearing to the factual circumstances that exist here and should be disregarded by the Commission as having a bearing on whether or not the agreement should be approved.
PN327
THE COMMISSIONER: Is the classification structure the same as the predecessor agreement?
PN328
MR GOSLING: Yes, it is. The essential difference in this agreement to the previous agreements is that there's more body to it, i.e., various clauses of the award were incorporated directly into the agreement and others remain silent and relied upon the agreement and the Halladale and Black Watch component was an addition to this agreement. As I've already indicated, that clause is now redundant, because the award was not one.
PN329
But this agreement very much reflects the terms and conditions, albeit updated in terms of monetary value, to the previous agreements, including the one currently in place and its predecessor. Nothing is different about that and they're the same employees doing the same work. So we say that it is valid for those employees to reach an agreement and seek to have it approved by the Commission and the fact that not everybody on a daily basis is doing ever piece of work under this agreement.
PN330
If that was the test, it would be impossible to put an agreement in place. Maintenance employees undertake different tasks every day of the week. To say that we can't have an agreement till they are actually performing every one of those functions would be an impossible scenario in terms of developing an agreement and having it approved.
PN331
So we say that nothing's been put here today which should suggest or convince the Commission that the agreement cannot and should not be approved and we say it should be approved forthwith, because a lot, in terms of the future employment of these employees and future work to be one by the contract are very much predicated on an agreement being in place to satisfy the client.
PN332
So we say the Commission should not be deterred and should not be convinced by the argument afoot here today. We have indicated the form or the substance of an undertaking that the Commission requires to ensure that it can be properly satisfied in respect to the boot test which, in my submission, leads to the 1(a) issue, which the AMWU is saying is the fundamental flaw.
PN333
THE COMMISSIONER: Just before you go on. What do you say about the, I guess it becomes an ancillary point, that as Mr Vroland put, well if the undertaking is, you know, clarifies that the Manufacturing Award's incorporated, that that means that it incorporates the other classifications in that award which is beyond what's in 6.1 and then that raises the question, as I understood Mr Vroland was putting, that the possible impact of that would be that they would be paid no more than what's in the award. What do you say about that?
PN334
MR GOSLING: The clear circumstances of these negotiations and all predecessor negotiation, where the scope of work and the classifications performance at work were identified in the agreement and predecessor agreements referred to the award as well. But the only clause - sorry, the only classifications of the award in the agreement that have ever been activated are the ones identified in the agreement.
PN335
As the Commission would be very aware, that there are a broad range of classifications in the Manufacturing Award. Most of them have no relevance to the work that we perform and to the extent that the classifications need to be identified with the appropriate rates of pay, they are reflected in the enterprise agreement.
PN336
THE COMMISSIONER: Yes, but if you- - -
PN337
MR GOSLING: So we have no difficulty in terms of excluding other classifications of the Manufacturing Award which are not detailed here in this enterprise agreement, because they have no relevance to the work that we currently perform or the- - -
PN338
THE COMMISSIONER: Okay.
PN339
MR GOSLING: - - -which is the work that we will be performing in the future, albeit with more employees of the same classifications.
PN340
THE COMMISSIONER: Okay, so it's a modified undertaking then that the award is incorporated, save for the classifications that are not in 6.1?
PN341
MR GOSLING: Not identified. An example there is that the award, Manufacturing Award, contains electrical classifications. There's no electrical work covered under this agreement and the electrical work is actually being performed under a separate enterprise agreement. So we've on intention of using this agreement to engage electrical workers- - -
PN342
THE COMMISSIONER: Okay.
PN343
MR GOSLING: - - -albeit it from the award, because they are covered by a separate instrument with the appropriate union as well.
PN344
THE COMMISSIONER: Okay, all right.
PN345
MR GOSLING: If I could then take you to the last point we're trying to get to, and that is this whole question of the agreement being submitted- - -
PN346
THE COMMISSIONER: Whether I can be satisfied- - -
PN347
MR GOSLING: - - -for approval.
PN348
THE COMMISSIONER: Sorry, yes.
PN349
MR GOSLING: Without being signed. Now, Commissioner, the agreement was approve don 6 November by the employees and then the Board indicated we were required to file a copy of that within 14 days of that agreement being voted on by the employees. Throughout the period of time from 6 November until the 14th day, we on three occasions, wrote to both the AMWU and the AWU, including Mr Kelly who's here today and the local organiser, Mr Hynds, and similarly the organisers of the AWU and the State Secretary of that organisation, even providing them copies of a draft F18 form for them to indicate, as bargaining representatives, that they wanted to be bound by the agreement and seeking for them to sign the agreement.
PN350
They chose to ignore all correspondence until 2.30 on the 14th day on which the company had to make a decision as to what to do. Now, had we chosen, as has been suggested, that we couldn't lodge it until we had the signature, we would have to undo the proceedings and go back and find an employee who wasn't a bargaining representative, to sign the agreement.
PN351
So we say that the union quite deliberately, waited until the 11th hour and 59th minute to indicate they had objections to the agreement. No attempts were made despite three requests for them to do so. They now come along and say "There's a fundamental flaw in the agreement because we didn't sign it and we were the bargaining representatives, therefore the Commission can't certify the agreement because we failed to meet them at mandatory requirements".
PN352
The union went so far as on the Monday, under a letter from Mr Vroland, to me, indicating that can I provide him with newer documentation to meet the requirements of the act because we'd failed to actually lodge on time. What Mr Vroland failed to appreciate was that the documentation was lodged at 4 pm, as late as I could, to see if they would respond on the Friday, and the Commission merely advised the parties on the Monday that such an application was made. The union took from that, that we'd filed on the Monday, out of time, and that was going to be used as a basis for saying that we'd failed to comply with the legislation.
PN353
So we say the scenario that presents itself here today is one manufactured by the union for the sole purpose of us not being able to comply with the legislation. Now, we are more than happy to go to our employees to have at least one of those employees sign a copy of the agreement. We didn't seek to do so by doing the right thing by the bargaining representatives who, in all circumstances in the past, signed the agreement and seek to be bound by it. Their silence now is being used as a vehicle against us to suggest that the Commission has no power to approve the agreement or find ways to ensure that the employee, the appropriate employee is given the opportunity to sign.
PN354
We submit that the Commission should not be persuaded by that argument and it has a disingenuous position from the AMWU to suggest that we have failed in our requirements when we've done everything that's humanly possible to get an appropriate employee representative, being the unions, to sign up to that agreement. And we submit the Commission should give us sufficient time to have an employee sign that agreement and submit that back to the Commission, and on that basis, the Commission approve the enterprise agreement.
PN355
On that basis, we say there are no impediments, given all that's been put here today, for the Commission to approve the agreement, and we submit that it should, without haste, because a lot does ride in terms of securing work for our existing employees and for this future shut down work that's hopefully coming our way in March of next year.
PN356
If it please the Commission.
PN357
THE COMMISSIONER: Thanks, Mr Gosling. So what was suggested there was a slightly amended undertaking. Any views about that?
PN358
MR VROLAND: Yes, Commissioner. It just becomes increasingly messy. It's very difficult to understand that we've got nothing in writing in respect of the undertaking, so it's very difficult to make comment or observation about it. Certainly, it seems now that there is a suggestion that the undertaking would be limited to the classifications, as indicated in the table in clause 6.1 of the agreement. I'm not sure that's what the employees voted on, but nonetheless, that's what the undertaking is.
PN359
I note with some concern that the job titles, if I might call them that, in that table, do not all fall within the Manufacturing Award. It would seem to me there are certainly some that do, the trade-related classifications, but jobs such as - job titles, and that's all we have, such as "Crane Crew, Rigger, Scaffolder, Dogman, Base Scaffolder, Base Rigger" don't appear to me to be classifications that would generally fall under the Manufacturing Award but would more generally fall under a different award, a Building and Construction Award. That is of a concern to us. It just again, becomes increasingly difficult to nail down exactly what the undertakings and the effect of the undertakings are. So certainly, we have those concerns.
PN360
THE COMMISSIONER: The better course, I think, is - because the issue you raised about the breadth of the undertaking, I mean, let's go back to the point that the undertaking is sought on the basis of the boot test. You then raised well, that might mean that they can employ people, prospective employees can be employed just on award rates. That's what I understood the issue to be.
PN361
MR VROLAND: Yes.
PN362
THE COMMISSIONER: Because it's not clear that they would be paid any greater rate. I mean, one of the things that hasn't been explored is - well, that might be the case to the extent that there's any more beneficial rates in this agreement, for example, the leading hand allowance, although that doesn't apply to all. But perhaps the - really, what I hear being contemplated is an undertaking that the award is incorporated. But I think the better way to be framed, because what you raised is a legitimate issue, but it's a matter for me to find a way to resolve that issue and not for each time a suggestion is raised for that to be the basis of a further objection.
PN363
I think in terms of what you have raised the issue is, that resolves it is that without creating an unintended effect of the undertaking as you have alluded to that the award is incorporated, but the employer undertakes that they won't utilise classifications in the award that are not contemplated in clause 6.1 of the agreement. That's probably the best way to deal with that issue, that I think is a legitimate issue that you raise. Mr Gosling, does that make sense to you?
PN364
MR GOSLING: It does. Yes, Commissioner.
PN365
THE COMMISSIONER: I am just trying to reflect what the intent was.
PN366
MR GOSLING: And that's certainly - in putting the agreement together we only sought to identify it here, the agreement, the classifications that are currently being used and would be used on any future maintenance work, particularly shutdowns and upgrades.
PN367
THE COMMISSIONER: Yes. Do you want to express a view about that?
PN368
MR VROLAND: We have concerns, Commissioner, and we have been around the mulberry bush on this one a little bit before. What I might do is actually hand up copies of the previous agreement, because I think they are relevant to this point.
PN369
The concerns, and I suppose I can put it this way, the previous agreement does clearly incorporate the award. Now it seems here there there's been a change in the wording from the previous agreement where it says, "The agreement will be read in conjunction with the award", yet the undertaking seems therefore to go against a clearly articulated change in the wording of the agreement. We just have concerns, Commissioner, that it becomes increasingly vague and increasingly uncertain as to whether or not the nature of the undertakings is going to result in a situation that is significantly different to the agreement the employees have sensibly voted on.
PN370
Just for the sake of completeness I draw your attention to clause 5.1 of this agreement. It says:
PN371
The terms of the Manufacturing and Associated Industries and Occupations Award or its successor awards as varied from time to time are incorporated into this agreement.
PN372
That's what I am talking about.
PN373
THE COMMISSIONER: The only difference I see, Mr Vroland, is that the language and incorporation was clear in the last agreement, it's less clear in this agreement. That gives rise to concerns under the boot. The applicants indicated that they will provide an undertaking that the award is in fact incorporated. That would then mean it would end up being the same as the - in effect to the agreement that was made previously to which I take it you had no objections.
PN374
MR VROLAND: Well, I think I have made my point, Commissioner. It's a matter for you to be satisfied about. The AMWU's view is that the situation is becoming increasingly uncertain with respect to whether or not this is resulting in an agreement that the employees actually voted on.
PN375
THE COMMISSIONER: Because?
PN376
MR VROLAND: Because there was a clear intent of the parties to change the wording in relation to the coverage clause, yet there now seems to be an undertaking which reverses the document that was put to the employees. I can't put it any more simply than that. I understand that the undertaking might reverse that effect, but is that what the employer is worried about? That's hard to say. It's not the document that was before them and the undertaking wasn't before them when they undertook the vote.
PN377
THE COMMISSIONER: On that basis then every time an undertaking is accepted it's changed the agreement and of this day that's an absurd submission.
PN378
MR VROLAND: It goes to the heart of the coverage of the agreement, which is different to an undertaking that might serve to ensure that certain aspects of the award are observed where they otherwise might not be according to the text of the agreement.
PN379
THE COMMISSIONER: All right. Anything else you want to say?
PN380
MR VROLAND: A couple of other things, Commissioner. My friend has referred in his submissions on a couple of occasions to commercial considerations. I would say that those considerations are in fact irrelevant in respect of the task before you. Further it's irrelevant as to how long the negotiations have been continuing for.
PN381
THE COMMISSIONER: Surely it's relevant to a consideration as to whether this is in some way, in terms of my consideration under 188C, whether this is some sort of device to simply get through an agreement that they can then spin off to a broader group.
PN382
MR VROLAND: I will accept that, Commissioner.
PN383
THE COMMISSIONER: You would accept that, wouldn't you?
PN384
MR VROLAND: I would accept it, yes.
PN385
THE COMMISSIONER: If these negotiations have been going on for a very short period of time and we were in the environment where in different circumstances where it looked like it was really designed to get an agreement through to apply to this other, that was really the game in the end. What it seems to me is that we have got a replacement agreement to the agreement that you have just handed up to me that covers an existing group of employees who are currently working away. That's what we have got, which might, subject to the awarding of further tender, apply to a broader group of employees.
PN386
MR VROLAND: And I make the point just in respect to that last observation that the evidence before you seems to indicate that that's quite likely. It's not simply a situation where an employer might have an agreement with a small body of employees and then later wins work. We think the likelihood of it is in fact a relevant consideration, given that that's not a contested point.
PN387
THE COMMISSIONER: It was clear from Mr Gosling that they tendered for that work and if they win it then it will apply. That's what he has put.
PN388
MR VROLAND: Yes, and that's the relevant factual matrix, that's all, the only point I would make in respect of that.
PN389
THE COMMISSIONER: All right.
PN390
MR VROLAND: The only other thing that I would say is that the provisions in relation to the signing of the agreement are quite clear. I have already made this point, but just in response to what my friend has said. Under 185(2) it is just simply very clear that the application must be accompanied by a signed copy of the agreement. It isn't. It simply isn't.
PN391
THE COMMISSIONER: Yes, but I will just indicate to you that if for no other reason when one considers the objects of this Act to provide a simple, flexible and fair framework that enables collective bargaining in good faith, if your position is, the position of your union is that every time an agreement comes in here that is not properly signed, which in my experience of having approved probably hundreds, is frequent, including not properly signed by your organisation, if your position is that those agreements can't be approved by way of retrospectively if you like after they have been lodged, remedying that failure to properly sign the agreement I have enormous difficulty with that proposition. I think it would arguably make the operation of the making of agreements extremely difficult indeed.
PN392
MR VROLAND: You have our submissions, Commissioner.
PN393
THE COMMISSIONER: I am just making the point to you clearly that that's how I see it. All right, any more?
PN394
MR VROLAND: No.
PN395
THE COMMISSIONER: Thanks. I will indicate what will occur is this; Mr Gosling, you are going to provide an undertaking in the terms that's been discussed.
PN396
MR GOSLING: Yes.
PN397
THE COMMISSIONER: I expect to receive that by close of business tomorrow. I need to seek the views of the bargaining representatives on that undertaking, and I will provide 48 hours from when I receive the undertaking for those views to be expressed.
PN398
MR VROLAND: Commissioner, if I might that would be over the weekend.
PN399
THE COMMISSIONER: Sorry, 48 working hours. That's right, a fair point. For the purposes of clarity that will be close of business on Tuesday. You will also supply by close in business tomorrow, Mr Gosling, a properly signed copy of the agreement, presumably in the circumstances signed by an employee that's covered by the agreement. It must comply with the requirements of the Act including the necessary addresses and the person that's signing it must be identified. All of the provisions in the Act are quite clear as to what is required. So make sure that it complies with those. If it doesn't comply there will be further requests, further signature pages which will further delay the matter, but that will be of your doing, not mine.
PN400
Finally I will indicate now that I do not see a barrier to approving the agreement on the basis that the application as lodged was not at that time signed. I accept that one can't approve the agreement without a properly signed application, but I will indicate that I do not see that as a barrier. Even if I am wrong about that I have heard what Mr Gosling has said about the circumstances around the timing of the lodgement of the application and I will grant the necessary extension to which I have discretion for the lodging of the agreement, but I make the point that I am really doing so out of an abundance of caution. I don't see a barrier to approving the agreement for the reasons that you have put to me today and that were not raised in the first instance in your F18.
PN401
Subject to those steps being undertaken and subject to any views that I obtain from the bargaining representatives to the undertaking that's proffered I will indicate that I would be predisposed to making the agreement. I will provide written reasons for that that briefly deal with the matters that you have raised today, Mr Vroland, in terms of objections to the agreement. That's a provisional view of course, it depends on the form of the undertaking and it depends on the views that are supplied, but I just foreshadow that subject to that satisfying my concerns I will approve the agreement from that time. Yes?
PN402
MR GOSLING: Just for abundance of caution, Commissioner, is it possible to get a copy of the transcript to ensure that all the points have been properly - - -
PN403
THE COMMISSIONER: Yes, we will order an urgent copy of the transcript, Victoria. That concludes the proceedings.
ADJOURNED INDEFINITELY [4.28 PM]
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