Telstra Corporation Limited - re Australian Telecommunication Commission Telephone and Phonogram Staff (Provision of Operator Assisted Services) Agreement 1984

AUSTRALIAN TELECOMMUNICATIONS COMMISSION TELEPHONE AND PHONOGRAM STAFF (PROVISION OF OPERATOR ASSISTED SERVICES) AGREEMENT 1984

Application to set aside or vary award - appeal - memorandum of agreement under s.28 of Conciliation and Arbitration Act - Commission at first instance found agreement not an award for purposes of Workplace Relations Act - memorandum of agreement deemed to be award for purposes of C&A Act - effect s.7(1) of Industrial Relations (Consequential Provisions) Act to continue such awards in force for purposes of Industrial Relations Act - s.7(1) of IRCP Act remains in operation - therefore agreement was an award in force under WR Act - Appeal allowed - matter referred back to SDP Duncan.

[1] This appeal relates to an agreement known as the Australian Telecommunications Commission Telephone and Phonogram Staff (Provision of Operator Assisted Services) Agreement 1984 (the Agreement) which was certified by the Australian Conciliation and Arbitration Commission (the ACAC) on 13 April 1984 pursuant to s.28 of the Conciliation and Arbitration Act 1904 (the C&A Act). The Agreement deals with a range of matters relating to the provision of operator assisted telephone services including employment, recruitment and redeployment policies and various conditions of employment. In recent years there has arisen a dispute as to the continuing relevance and application of the Agreement especially as it relates to the redeployment and relocation of surplus staff.

[2] On 14 December 1999 Telstra Corporation Limited (Telstra) lodged an application under s.113 and s.111(1)(f) of the Workplace Relations Act 1996 (the WR Act) seeking to have the Agreement set aside or, in the alternative, seeking a review of the Agreement pursuant to item 51 of Schedule 5 to the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act). The application was opposed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[3] So far as presently relevant, the sections of the WR Act under consideration may be set out as follows. Section 113 deals with the power of the Commission to set aside or vary awards and provides:

“(1) The Commission may set aside an award or any of the terms of an award.”

Section 111 confers particular powers on the Commission. Paragraph 111(1)(f) provides:

“(1) Subject to this Act, the Commission may, in relation to an industrial dispute:

(f) set aside, revoke or vary an award, order, direction, determination or other decision of the Commission”.

“ ‘award’ means an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.”

[4] Item 51 of Schedule 5 to the WROLA Act provides for the variation of awards as part of the award simplification exercise. Item 51(1) provides:

“(1) As soon as practicable after the end of the interim period, the Commission must review each award:

[5] On 23 June 2000, Deputy President Duncan decided [Print S7386] to dismiss the application by Telstra on the basis that the Agreement was not an award for the purposes of s.113 and s.111(1)(f) of the WR Act or item 51 of Schedule 5 to the WROLA Act and therefore could not be set aside or varied pursuant to those provisions. His Honour also decided that Telstra did not have an accrued right pursuant to s.8 of the Acts Interpretation Act 1901 to seek to set aside the Agreement under relevant provisions of the C&A Act or the Industrial Relations Act 1988 (the IR Act).

[6] In the decision, his Honour examined the relevant provisions of the various Acts which have or have had application to the Agreement. It was concluded by the Deputy President that:

• s.28 of the C&A Act made the certified memorandum of agreement an award of the ACAC for the purposes of that Act [see para. 25];

• the definition in the WR Act of an award requires that to be an award (for the purposes of that Act) it must be reduced to writing under s.143(1) [see para. 27];

• the Full Bench decision in Re AOTC Redundancy Agreement 1999 [Print R2661, 4 March 1999] (the AOTC decision) and the decision of the President in Re Inspection Procedures for New and Modified Freight Vehicles (ARU and SRA (NSW), ANRC, STA (Victoria), Westrail) Agreement 1991 [Print S3295, 17 February 2000] (Inspection Procedures) should be followed [see paras. 26-30];

• therefore the Agreement is not an award for the purposes of the WR Act or item 51 of Schedule 5 to the WROLA Act [see para. 40].

[7] Telstra has sought to appeal against the decision dismissing its application. The grounds of appeal include that the Deputy President erred in finding that the Agreement was not an award for the purposes of the WR Act and the WROLA Act.

“7(1) [Continuation of awards] An award or order in force under the previous Act immediately before the commencement continues in force after the commencement, subject to the Industrial Relations Act, as if it were an award made under the Industrial Relations Act.”

[9] It was submitted by Telstra that his Honour was correct in concluding that the Agreement was an award for the purposes of the IR Act [see Print S7386, para. 40]. This conclusion was based on the consideration of the effect of s.7(1) of the IRCP Act in the decision [see paras. 8-11]. However it was submitted by Telstra that his Honour erred in then applying the definition of award in the WR Act and concluding that the memorandum of agreement was not an award under that Act. It was submitted that the memorandum was an award under the IR Act immediately prior to the commencement of the WROLA Act and that the WROLA Act did nothing to change that. Therefore it was said that the memorandum is still an award under the WR Act.

[10] We have considered the submissions of the appellant in relation to s.7(1) of the IRCP Act and its application to the Agreement under consideration and we generally agree with those submissions.

[11] The Agreement was certified by the ACAC on 13 April 1984 pursuant to s.28 of the C&A Act. That section, so far as presently relevant, provides as follows:

“(1) [Memorandum, award] If, before an industrial dispute has been referred to arbitration in accordance with this Act, the parties to the dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute, they may either -

(a) make a memorandum of the terms agreed on and request a member of the Commission to certify the memorandum; or

(b) request a member of the Commission to make an award or order giving effect to their agreement,

and, subject to this section, the member of the Commission may, by order to which a copy of the memorandum is attached, certify the memorandum or may make an award or order accordingly.

(3) [Memorandum deemed award] A memorandum certified in accordance with this section has the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act.

(4) [Award binding] An award or order made in accordance with this section, or an award constituted by a memorandum certified in accordance with this section, is binding on —

(c) an employer who is a successor to, or an assignee or transmittee of, the business of such a party, including a corporation that has acquired or taken over the business of such a party.”

[13] The effect of s.28(3) of the C&A Act was to give the Agreement the same effect as an award for the purposes of that Act and to deem the Agreement to be such an award. In his decision, Deputy President Duncan considered the operation of s.28(3) of the C&A Act and concluded that the section does make a certified memorandum of agreement an award of the ACAC subject only to the qualification that it is an award for the purposes of the C&A Act. In so concluding, his Honour applied the observations of Windeyer J. in Hunter Douglas Australia Pty Ltd v Perma Blinds (1968) 122 CLR 45, at 65-67 in relation to the operation of “deeming” provisions. His Honour rejected submissions of the CEPU based on the decision of the High Court in The Queen v Commonwealth Industrial Court; Ex parte the Australian Coal and Shale Employees’ Federation [1960] HCA 71; (1960) 103 CLR 171 and distinguished that case on the basis that it dealt with the provisions of the Coal Industry Act 1946. We generally adopt the reasoning of the Deputy President in this regard and agree with his conclusion, namely that by operation of s.28(3) of the C&A Act, a memorandum of agreement certified in accordance with s.28 has the same effect and is an award for all purposes of the C&A Act. We also find support for this conclusion in the decisions of the High Court in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte North Melbourne Electric Tramways and Lighting Company Limited [1920] HCA 82; (1920) 29 CLR 106, especially at 111-112 (per Isaacs and Rich JJ) and in Monard v H. M. Leggo and Company Limited [1923] HCA 53; (1923) 33 CLR 155, especially at 160-161 (per Knox CJ) and 164-165 (per Isaacs J).

[14] In 1989 the C&A Act was repealed and replaced by the IR Act. The IRCP Act was enacted at that time and s.7(1) of the IRCP Act provided for the continuation in force of an award or order in force under the C&A Act “as if it were an award made under the Industrial Relations Act”.

[15] On our reading of the terms of s.7(1) of the IRCP Act, it is clear that awards and orders made before the IR Act came into operation were to be treated as awards under the IR Act. This would include agreements certified pursuant to s.28 of the C&A Act which were deemed to be awards of the ACAC for all purposes of that Act. This was the view taken by Moore J. in Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Limited (1997) 76 IR 364 where his Honour said:

“Section 7 of the Industrial Relations (Consequential Provisions) Act 1988 (Cth) required an award made under the C&A Act to be treated as having been made under the IR Act and there is little doubt that, having regard to the provisions of s.28, this would have included a certified agreement.” (at 368)

[16] We find no reason to read down the terms of s.7(1) of the IRCP Act as contended by counsel for the CEPU in the present case. The memorandum of agreement was an award for all purposes of the C&A Act - it was therefore an “award ... in force under the previous Act”. The effect of s.7(1) is that the award “continues in force ... as if it were an award made under” the IR Act. These words convey the intention that such awards will continue to apply and will operate as if they were awards made under the new Act.

[17] That this was the effect of s.7(1) of the IRCP Act is also supported by reference to the the Second Reading Speech delivered by the Minister for Industrial Relations and the Explanatory Memoranda circulated by his authority. In the Second Reading Speech to the Industrial Relations (Consequential Provisions) Bill 1988 (the IRCP Bill 1988) the Minister indicates that the repeal of the C&A Act will not result in any disadvantage to parties in the Federal system and sets out the three main purposes of the Bill. The third purpose is described by the Minister as follows:

“The third purpose of the Consequential Provisions Bill is to ensure that the transition from the system established under the previous Act to the system established by the Industrial Relations Bill is as smooth as possible. Most of the provisions contained in this Bill are designed to bring that about. For example, provision is made for the transfer of part-heard proceedings before the Conciliation and Arbitration Commission to the new Industrial Relations Commission on the commencement of the new Act. Registration obtained by organisations under the Conciliation and Arbitration Act will be maintained for purposes of the new Bill as will current awards and orders of the present Commission.” (House of Representatives - Hansard, 28 April 1988, p.2340) (emphasis added)

[18] The Explanatory Memorandum to the IRCP Bill 1988 explains the operation of s.7 in these terms:

This clause provides that awards, determinations and agreements, made under the previous Act and under other legislation, which are in force immediately before the commencement continue in force after the commencement as if made under the new Act.”

[19] The Explanatory Memorandum to the

Industrial Relations Bill 1988

refers to the new definition of “award” included in the Bill and refers to its operation as follows:

“‘Award’ means an award or order in writing in accordance with sub-clause 143(1) (which further describes awards).

The definition also covers awards and orders made prior to the commencement of the Bill and certified agreements under clause 115.”

[20] Although the IR Act has been amended on several occasions since 1989 and has undergone a name change, that Act and the IRCP Act have never been repealed. In consequence, s.7(1) of the IRCP Act remains in operation and has the effect that a memorandum of agreement certified under s.28, which was deemed to be an award by operation of s.28(3), was continued in force as if it were an award made under the IR Act.

[21] The position of an agreement certified pursuant to s.28 of the C&A Act may be distinguished from that of agreements certified after the commencement of the IR Act. In particular, such agreements have been made under a statutory regime which is quite different from that applying to s.28 agreements and, most relevantly for the purposes of the present case, s.7(1) of the IRCP Act does not apply in relation to them.

[22] The position of agreements made and certified under the IR Act and the WR Act has been the subject of consideration by the Federal Court in Telstra Corporation Ltd v MacBean [2000] FCA 437; (2000) 171 ALR 357 (Telstra) and by a Full Bench of the Commission in the AOTC decision.

[23] Briefly, the relevant legislative history regarding certified agreements under the IR Act and the WR Act is as follows (see generally CFMEU v Mount Thorley Operations (1997) 76 IR 364, at 368-369 per Moore J). When the IR Act came into effect on 1 March 1989, s.115 conferred a power on the Commission to certify a memorandum of agreement made in settlement of matters in dispute. The section did not deem such an agreement to be an award, like under s.28(3) of the C&A Act, but the definition of award in s.4 was extended to include a certified agreement. Certified agreement was defined in s.4 of the IR Act as an agreement certified under s.115. More detailed legislative regimes for the certification of agreements were introduced by the Industrial Relations Legislation Amendment Act 1992 and the Industrial Relations Reform Act 1993 but with the definition of award continuing to include a certified agreement. The WROLA Act 1996 changed the name of the IR Act to the WR Act and introduced substantial amendments relating to certified agreements. In particular, an entirely new regime for the certification of agreements was established and the following definitions of award and certified agreement were introduced:

“award means an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.

certified agreement means an agreement certified under Division 4 of Part VIB;”

Since these WROLA Act amendments came into operation on 31 December 1996, an award is no longer defined under the WR Act to include a certified agreement. The WROLA Act also contained transitional provisions dealing with the status of agreements certified under the repealed parts of the IR Act.

[24] In Telstra, a Full Court of the Federal Court considered whether an agreement certified in 1993 under the IR Act was an “award” for the purposes of item 49 of Schedule 5 to the WROLA Act. It was argued on behalf of Telstra in that case that the agreement, having been certified at a time when the IR Act defined “award” as including a certified agreement, continued to be an “award” for the purposes of that Act as subsequently amended and so was susceptible of variation pursuant to item 49. The Court rejected this argument (see Ryan J at 362-363, Marshall J at 368-369 and Finkelstein J at 376-378) largely on the basis that the definition of “award” in the WR Act governed the interpretation of that word in item 49. The decision in this case has been recently applied by another Full Court of the Federal Court in Australasian Meat Industry Employees Union v Hamberger [2000] FCA 1197, 25 August 2000, see especially paras. 39-40.

[25] This was the same approach as had been adopted in the decision of a Full Bench of the Commission which was before the Court in Telstra. In the AOTC decision the Full Bench examined the relevant statutory provisions and concluded as follows:

“In our view, the word “Award” in Items 49, 50 and 51 has the meaning defined by s.4 of the WR Act. Mr Parry’s submissions in relation to the effect of Item 88 are not persuasive of a contrary conclusion. We see nothing in the legislature or, in particular, the relevant transitional provisions upon which we could base a conclusion that the use of the word “award” in and for the purposes of Item 49 means anything other than the definition which is contained in the WR Act.

The exclusion of certified agreements from the definition of award, by reference to s.143(1), in the WR Act was a major change in the way in which such agreements have been dealt with by the legislature. For the Commission to treat the reference to “award” in Item 49 contrary to the Parliament’s manifest intention that certified agreements are not awards, for the purposes of the WROLA Act, would require a clear and unambiguous expression to that effect within the transitional provisions. As we are unable to accept that any such provision is contained within the transitional provisions we reject the submission of the appellant that the Commissioner was in error in his conclusion that the Redundancy Agreement is not an award subject to Item 49 of the WROLA Act.” (Print R2661, at 11-12)

[26] The AOTC decision was relied upon in the decision in Inspection Procedures. In that case the question was whether an agreement certified under s.28 of the C&A Act is an award for the purposes of the WROLA Act provisions and therefore is required to be reviewed pursuant to item 51 of Schedule 5 to the WROLA Act. The decision in Inspection Procedures was followed by Deputy President Duncan in the decision presently under appeal. However in Inspection Procedures there were only limited submissions put to the Commission and it would seem that these submissions did not refer to s.7(1) of the IRCP Act.

[27] In our view, agreements which were certified under s.28 of the C&A Act are in a different position to agreements made and certified under the IR Act. Under s.28 of the C&A Act, a memorandum of agreement which was certified under the section would have the same effect as and be deemed to be an award of the ACAC for all purposes of the C&A Act. Under s.7(1) of the IRCP Act, an award in force under the C&A Act is to continue in force, subject to the IR Act, “as if it were an award made under the Industrial Relations Act”. The effect of s.7(1) is to treat a s.28 agreement as an award, and not as a certified agreement, under the IR Act and to continue it in force as an award under the IR Act and the WR Act.

[28] Accordingly we have come to the conclusion that the Agreement which was made in 1984 and certified in accordance with s.28 of the C&A Act is an award for the purposes of the WR Act. It may therefore be varied or set aside pursuant to s.113 of the WR Act and may be subject to review under item 51 of Schedule 5 to the WROLA Act.

[29] We find it unnecessary given this conclusion to consider the other matters raised in the grounds of appeal filed by Telstra, including those relating to s.8 of the Acts Interpretation Act 1901.

[30] For the reasons given, we have decided to grant leave to appeal in this matter and to set aside the decision appealed against. The application by Telstra is referred back to Senior Deputy President Duncan.

C Howell of counsel with P Pasfield for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

	Award - award variation - set aside or vary - appeal - full bench - various employees, telecommunications services - original application to set aside or vary award - award relied on was an agreement and memorandum certified under Conciliation and Arbitration Act - Commissioner found that agreement not award for purposes of Workplace Relations Act or WROLA Act - decided Telstra had no accrued right under Acts Interpretation Act to set aside the Agreement under the C&A Act or the Industrial Relations Act - held - agreements and memorandums attached to them certified under s28 C&A Act to be deemed awards (Hunter Douglas Australia Pty Ltd v Perma Blinds (1968) 122 CLR 45 at 65-67) - s7(1) Industrial Relations (Consequential Provisions) Act 1988 preserved awards in force under previous Act - IR Act and IRCP Act never been repealed - award under IR Act is deemed an award under WR Act and may be varied or set aside - leave to appeal granted - decision set aside - application referred back to Duncan SDP
Appeal against decision of Duncan SDP on 23 June 2000 [Print S7386]
C No 34378 of 2000			Print T2420
Boulton J Marsh SDP Larkin C		Sydney	24 October 2000

Various employees	Telecommunications services

JUSTICE BOULTON
SENIOR DEPUTY PRESIDENT MARSH
COMMISSIONER LARKIN	SYDNEY, 24 OCTOBER 2000

Australian Industrial Relations Commission

Telstra Corporation Limited - re Australian Telecommunication Commission Telephone and Phonogram Staff (Provision of Operator Assisted Services) Agreement 1984 - T2420 [2000] AIRC 468; (24 October 2000)