ADM2016/7, Transcript of Proceedings [2017] FWCTrans 24 (18 January 2017)

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PN1

THE SENIOR DEPUTY PRESIDENT: Yes. So, Mr Chadwick, you’re here for the applicant?

PN2

MR N CHADWICK: I am, your Honour. Good morning. With me from the company is Mr Ratcliffe, spelt R-a-t-c-l-i-f-f-e. Mr Ratcliffe is the national IRHR manager. Do you want me to announce the appearances in Brisbane also, your Honour or ‑ ‑ ‑

PN3

THE SENIOR DEPUTY PRESIDENT: Well, you could just let me know who’s there, yes.

PN4

MR CHADWICK: Yes, there’s Mr Ali, spelt A-l-I, initial I. Mr Ali is the manager for landfill transfer stations and transport. Also with Mr Ali is Mr Heggie, spelt H-e-g-g-i-e. Mr Heggie was the bargaining representative for the agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Was he the only one for the agreement?

PN6

MR CHADWICK: Yes, I think he was the only bargaining representative.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN8

MR CHADWICK: That's correct.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. So now you’ve put a new application in under section 217 of the Act?

PN10

MR CHADWICK: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Look, I’ll just formally accept that as the application that we’re dealing with, and I assume, on that basis, you’re withdrawing your other application under the other section.

PN12

MR CHADWICK: Well, I’m ‑ ‑ ‑

PN13

THE SENIOR DEPUTY PRESIDENT: Or maybe we’ll wait until - we’ll see how we go today and then you can decide what you want to do.

PN14

MR CHADWICK: Yes. Well, I think, your Honour, the initial thought from my client was that, given the nature of the matter and the wording in the clause of the enterprise agreement, specifically 3.4.1, I was instructed to file an application pursuant to section 602 of the Act. And can I just park that for the minute rather than withdraw it?

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR CHADWICK: Because upon speaking to your Associate on Friday, last Friday, your Associate kindly drew my attention to another provision within the Act, being section 217, and subsequently I sent an email and an application to your Associate this morning. And upon reflection, and I certainly don’t intend to necessarily debate the appropriate provisions of the Act with your Honour this morning, because I think we’re all here for the same purpose.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR CHADWICK: I’m still inclined to press the initial application.

PN19

THE SENIOR DEPUTY PRESIDENT: Right.

PN20

MR CHADWICK: Mainly on the basis that, and having spoken to Mr Ratcliffe again this morning, it’s certainly clear to us that the offending words or the offending reference in clause 3.4.1 is to the words “12 pm”.

PN21

THE SENIOR DEPUTY PRESIDENT: Sure.

PN22

MR CHADWICK: Because if your Honour looks at those words which is ‑ ‑ ‑

PN23

THE SENIOR DEPUTY PRESIDENT: Which clause was it again? Sorry, clause 3 ‑ ‑ ‑

PN24

MR CHADWICK: It’s Clause 3.4, hours of work.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. That's right.

PN26

MR CHADWICK: And then reading down your Honour will see on page 13 of the enterprise agreement in 3.4.1, and I’ll just read:

PN27

The ordinary hours of work for employees, other than casual employees, shall be an average of 38 hours per week and shall be worked between the hours of 6 am to 12 pm Monday to Friday.

PN28

THE SENIOR DEPUTY PRESIDENT: Which is impossible.

PN29

MR CHADWICK: Well, it’s an impossibility to have ‑ ‑ ‑

PN30

THE SENIOR DEPUTY PRESIDENT: It’s impossible, isn’t it? You can’t work 38 hours to ‑ ‑ ‑

PN31

MR CHADWICK: Well, that's correct.

PN32

THE SENIOR DEPUTY PRESIDENT: I mean, I guess the question in my mind, I understand there’s a problem with that clause and I understand why you want to fix it.

PN33

MR CHADWICK: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: I think the problem with section, what is it, 604 is that ‑ ‑ ‑

PN35

MR CHADWICK: 602, yes.

PN36

THE SENIOR DEPUTY PRESIDENT: 602, sorry. Is actually that’s really about an error on the part of the Commission. It’s to deal with a slip if we get, say, the wrong date of effect or we, you know, make some other mistake in a decision and we just can correct it. It gives us the power to correct a decision. Now, it’s not really clear to me that – I mean, the error, if you like, was in the drafting of the agreement.

PN37

MR CHADWICK: Yes.

PN38

THE SENIOR DEPUTY PRESIDENT: It’s not an error of Commissioner Roberts as such in approving the agreement. I mean, presumably as long as there’s agreement about all the other requirements, about the statutory requirements.

PN39

MR CHADWICK: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: The fact that it – I mean, the reality is we quite often approve agreements that may have some kind of old clause in that’s not very well drafted, but our test isn’t to make sure they’re properly drafted. Our test is to make sure they meet the statutory requirements. He was obviously satisfied that it met the statutory requirements. I don’t imagine you’re suggesting that he is in error in doing that.

PN41

MR CHADWICK: No, not at all.

PN42

THE SENIOR DEPUTY PRESIDENT: Just as in that’s what that section was about. So I understand your problem. I am trying to find a way of, quite frankly, trying to deal with the issue that you’re trying to resolve in the most appropriate manner, that’s all.

PN43

MR CHADWICK: I think – can I make this first submission, and if I’m wrong about that, I will revert?

PN44

THE SENIOR DEPUTY PRESIDENT: Okay.

PN45

MR CHADWICK: But when I read the decision of Commissioner Roberts I read his decision in totality, and that is, it’s not only a decision of the Commission approving the agreement but it’s also the agreement itself.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR CHADWICK: So he’s actually accepting the agreement as complying with the Act.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN49

MR CHADWICK: And attaching to the decision is that agreement so it’s the bundle.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I understand.

PN51

MR CHADWICK: It’s not just the one page that appears on the agreement.

PN52

THE SENIOR DEPUTY PRESIDENT: Okay. I don’t really want to ‑ ‑ ‑

PN53

MR CHADWICK: No.

PN54

THE SENIOR DEPUTY PRESIDENT: I mean, I think I can understand the logic. I don’t actually agree with it. I don’t think it was his error.

PN55

MR CHADWICK: No.

PN56

THE SENIOR DEPUTY PRESIDENT: And therefore because it wasn’t an error of the Commission it can’t be fixed by that section. But be that as it may, I mean, if we deal with your more recent application ‑ ‑ ‑

PN57

MR CHADWICK: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: ‑ ‑ ‑I don’t think I need any persuading that, in a sense, the clause is inherently, perhaps not ambiguous, but it’s uncertainly because, given that it can’t work, something must be wrong. It’s not clear what it means. The way the Commission deals with these matters is, first of all, we need to establish there’s an ambiguity or uncertainty and I think, on the face of it, that’s clear.

PN59

MR CHADWICK: Yes.

PN60

THE SENIOR DEPUTY PRESIDENT: I don’t need to be persuaded of that. Then I need to exercise the discretion to do something about it, which I’m open to. And the main thing I then need to be confident is the way the Commission is meant to deal with these, according to the case law, is to give effect to the original intention of the parties. And that’s kind of what I need some evidence about, as to what – I mean, you’ve said that - I think you want to change this to – what was it you want to change, 6 am to 6 pm?

PN61

MR CHADWICK: 6 pm yes. So 12 ‑ ‑ ‑

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. I don’t have a problem with that but it’s not – I can’t just sort of say, well, that makes sense so I’ll do it. I need some evidence that that is actually what the parties, who negotiated the agreement, intended.

PN63

MR CHADWICK: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: So that’s really what I’m looking for from you this morning. I don’t need exhaustive - I just need some evidence that it’s just a mistake and that what was intended was that it should have said 6 am to 6 pm. Yes.

PN65

MR CHADWICK: I see. Well, I think it might be, without putting my colleagues in Brisbane on the spot, I think, certainly from where we sit this morning, Mr Ali and Mr Heggie were at the source of those negotiations.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes.

PN67

MR CHADWICK: I don’t know whether we’re in a position to swear either of those gentlemen in this morning.

PN68

THE SENIOR DEPUTY PRESIDENT: We probably can. We can just do an affirmation. We can.

PN69

MR RATCLIFFE: If I may?

PN70

THE SENIOR DEPUTY PRESIDENT: I don’t know who would be the best person. Yes?

PN71

MR RATCLIFFE: If I may, your Honour? So the afternoon shift clause and the intention of that if I draw your attention to that at 3.5.1.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes.

PN73

MR RATCLIFFE: Where the hours of work, they’re an afternoon shift, start at 6.30 pm and no later than 12.30 am.

PN74

THE SENIOR DEPUTY PRESIDENT: Right.

PN75

MR RATCLIFFE: So in terms of that, with the original intention, you can see there that the wording was quite clear and as how the award or Act and all the modern awards where there’s the gap between ordinary hours finishing, when that completes and then commencing an afternoon shift, with the intention there at 6.30 pm for ordinary hours to be worked to.

PN76

THE SENIOR DEPUTY PRESIDENT: Well, what does the award say? What does the ‑ ‑ ‑

PN77

MR CHADWICK: It’s 6 am to 6 pm.

PN78

THE SENIOR DEPUTY PRESIDENT: Is it? Yes.

PN79

MR CHADWICK: And can I draw your attention, your Honour, to clause, it’s actually 36, the entirety of the clause is 36 and then specifically at 36.2(c) it reads:

PN80

The ordinary hours of work are to be worked continuously except for meal breaks at the discretion of the employer between 6 am and 6 pm.

PN81

THE SENIOR DEPUTY PRESIDENT: Okay. Right.

PN82

MR CHADWICK: And the application before you, at least, in fact both applications, but specifically the second application, the 217 application, seeks to insert or vary the agreement by adding the words, “6 pm” in place of “12 pm”.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I could probably accept that then. So, Mr Ratcliffe, were you involved with the negotiation of the ‑ ‑ ‑

PN84

MR RATCLIFFE: Unfortunately, your Honour, I wasn’t.

PN85

THE SENIOR DEPUTY PRESIDENT: You weren’t. Okay.

PN86

MR RATCLIFFE: I wasn’t employed at the company at the time.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes. Well, maybe it would be useful to hear – is it possible?

PN88

MR CHADWICK: Mr Ali?

PN89

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90

MR CHADWICK: Perhaps if we somehow ‑ ‑ ‑

PN91

THE SENIOR DEPUTY PRESIDENT: It’s not contested evidence. I just wonder ‑ ‑ ‑

PN92

MR CHADWICK: No.

PN93

THE SENIOR DEPUTY PRESIDENT: Look, there’s no one here to contest it.

PN94

MR CHADWICK: No.

PN95

THE SENIOR DEPUTY PRESIDENT: Mr Ali, if you could – well, perhaps if you can put the question really. I won’t bother to swear him in but I’ll just ‑ ‑ ‑

PN96

MR CHADWICK: Thank you. Mr Ali, how long have worked for REMONDIS in Queensland?

PN97

MR ALI: Six years.

PN98

MR CHADWICK: Six years. And, sir, were you involved for the negotiations for the agreement known as the REMONDIS Australia Proprietary Limited Queensland Maintenance Enterprise Agreement 2015 to 2019?

PN99

MR ALI: Yes, I was.

PN100

MR CHADWICK: Yes. And, sir, who else was involved in those negotiations?

PN101

MR ALI: Chris Heggie was.

PN102

MR CHADWICK: Yes. And Mr Heggie is sitting with you this morning?

PN103

MR ALI: That's correct.

PN104

MR CHADWICK: Yes. And, sir, can I ask you do you recall clause, at least clause 3.4, hours of work? Are you familiar with that clause within the enterprise agreement, sir?‑‑‑

PN105

MR ALI: I am, yes.

PN106

MR CHADWICK: Yes. Sir, there is a reference in clause 3.4.1 to the ordinary hours of work being from 6 am to 12 pm Monday to Friday. Sir, is that your recollection of what the hours of work, or at least the span of hours of work, are for the agreement?

PN107

MR ALI: No, it’s incorrect.

PN108

MR CHADWICK: Yes.

PN109

MR ALI: It’s impossible to achieve the 38 hours required under those hours.

PN110

MR CHADWICK: And, sir, can I ask you, what are the ordinary hours of work for the employees who are covered by the agreement? What sorts of hours do they work Monday to Friday?

PN111

MR ALI: They start anywhere between 6 o’clock in the – 6 o’clock to 8 o’clock am.

PN112

MR CHADWICK: Yes.

PN113

MR ALI: And complete their ordinary hours and if work requirements require they work overtime up to about two hours generally on average.

PN114

MR CHADWICK: Yes. And how do you – when you say they work ordinary hours, is that eight ordinary hours once they commence work?

PN115

MR ALI: Yes. That's correct.

PN116

MR CHADWICK: Yes. And if they work eight ordinary hours they then move into overtime; is that correct?

PN117

MR ALI: That's correct.

PN118

MR CHADWICK: Yes. And, sir, how have you treated, since the approval of this agreement, and I refer you to clause 3.4.1, there is a reference to 12 pm, how have you treated that clause since the approval of the agreement?

PN119

MR ALI: We weren’t aware of the 12 pm in the award. Everyone has been treated as though they’ve been paid eight hours ordinary time.

PN120

MR CHADWICK: Yes. Sir, historically have you applied an ordinary hours of work clause for your employees, have you applied to clause from – a span of hours clause from 6 am to 6 pm Monday to Friday?

PN121

MR ALI: That's correct. That’s the intent.

PN122

MR CHADWICK: Yes.

PN123

MR ALI: That was the intent, yes.

PN124

MR CHADWICK: Yes. Thank you. And, Mr Heggie, you’re sitting there with Mr Ali. Having heard what Mr Ali has said in response to my questions this morning, do you agree with his responses?

PN125

MR HEGGIE: Yes, I do.

PN126

MR CHADWICK: Thank you, Mr Heggie. Is that sufficient, your Honour?

PN127

THE SENIOR DEPUTY PRESIDENT: Yes, I think so. Yes. Well, I mean, on that basis, I’m satisfied that there is uncertainty in the agreement and particularly in relation to the 3.4.1.

PN128

MR CHADWICK: Yes.

PN129

THE SENIOR DEPUTY PRESIDENT: And I’m also satisfied that it would be appropriate to amend the reference to 12 pm in 3.4.1 to 6 pm, and that will be effective from 8 May 2015. So anything that would have – it sounds like that’s actually what has been applied in practice.

PN130

MR CHADWICK: Yes. Yes.

PN131

THE SENIOR DEPUTY PRESIDENT: But it would be proper, given that was the original intention, to actually make it retrospectively as it were, varied from that date. So we’ll issue an order. I won’t do a formal written decision unless you need it.

PN132

MR CHADWICK: I don’t think so.

PN133

THE SENIOR DEPUTY PRESIDENT: But we’ll do a formal order though to give effect to that. Well, the decision is on transcript, but I think we’ll do a written order just to make it clear that’s what ‑ ‑ ‑

PN134

MR CHADWICK: Thanks, your Honour. And we thank the Commission for its assistance in the matter.

PN135

THE SENIOR DEPUTY PRESIDENT: Thanks very much. Thank you.

PN136

MR CHADWICK: Thank you, your Honour. Thank you.

ADJOURNED INDEFINITELY [10.17 AM]

Fair Work Commission Transcripts

ADM2016/7, Transcript of Proceedings [2017] FWCTrans 24 (18 January 2017)