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AG2003/ 1296 , Transcript of Proceedings [2003] AIRCTrans 823 (12 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, 15 Adelaide St BRISBANE Qld 4000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/ 1296 

UNITED KG PTY LTD GOVE SERVICES
CERTIFIED AGREEMENT 2003

Application under section 170XF of the Act
by United KG Pty Ltd, Australian Workers' Union, and
Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union for determination of
designated award for certified agreement

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by United KG Pty Ltd, Australian Workers' Union, and
Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union for certification of the
United KG Pty Ltd Gove Services Certified Agreement 2003

BRISBANE

11.07 AM, FRIDAY, 21 FEBRUARY 2003

PN1

THE COMMISSIONER: Good morning, everyone. If I can just take some appearances, first of all.

PN2

MR G. POWER: May it please the Commission, Greg Power, appearing for the Australian Industry Group for and on behalf of the United KG Proprietary Limited.

PN3

THE COMMISSIONER: Sorry, can you just give me the name once more? I just missed it.

PN4

MR POWER: Greg Power.

PN5

THE COMMISSIONER: All right. Thank you, Mr Power.

PN6

MR POWER: Appearing with me is MR RORY O'BYRNE from United KG Proprietary Limited.

PN7

THE COMMISSIONER: Thank you, Mr O'Byrne - Mr Power rather, sorry.

PN8

MS T. KRARUP: Krarup, initial T., on behalf of the Australian Workers' Union, may be it please the Commission.

PN9

THE COMMISSIONER: Thank you.

PN10

MR E. MOORHEAD: If it please the Commission, Moorhead, initial E,, on behalf of the AFMEPKIU.

PN11

THE COMMISSIONER: Thanks, Mr Moorhead. They're spreading you a bit thin these days, are they?

PN12

MR MOORHEAD: Sorry?

PN13

THE COMMISSIONER: They're spreading you a bit thin these days?

PN14

MR MOORHEAD: They are, Commissioner.

PN15

THE COMMISSIONER: Good.

PN16

MR MOORHEAD: I apologise for being late, Commissioner.

PN17

THE COMMISSIONER: Good. Thank you, Mr Moorhead. I have before me two applications today, one for an XF determination in respect of the United KG Proprietary Limited Gove Services Certified Agreement 2003, and an application for certification of the same. I would like to deal with the section 170XF application initially, and we have a number of amendments to the application as they came in. Perhaps if you could clarify those matters to me and any other issues as well. Mr Power?

PN18

MR POWER: Yes, may it please the Commission. I think our submissions, now that I've looked at the matter, are there's no need to determine a section 170XF application. The company is providing mechanical maintenance to the Gove facility for Alcan and as such would be bound by the Metal Industry (Northern Territory) Consolidated Award 1982, which is a common rule award of the Northern Territory, so would actually - would capture, as a minimum safety net, the work proposed be done by United KG.

PN19

I think the confusion arose in that there existed a federal award that provided to contractors at Gove. However, United, being a new, or newish, contractor up there, were not parties to that contracting award and effectively were under the understanding that they were effectively award-free in the federal sense - oh, no - well, in total sense. However, I have since had the opportunity to examine the awards, and that award applies to the same coverage the Metal Industry Award or the old Metal Engineering and Allied Industry Award would apply and thus would capture mechanical maintenance.

PN20

THE COMMISSIONER: Okay. So you're withdrawing your XF application?

PN21

MR POWER: We withdraw that application, and in that regard in clause 7.1 of the affidavit, we would ask that to be read as the Metal Industry (Northern Territory) Consolidated Award 1982.

PN22

THE COMMISSIONER: Okay. The statutory declarations on the part of the union parties were silent on this issue, I presume because you're leaving the progression of the matter to the employer, but you had best give me your views on these events.

PN23

MR MOORHEAD: Commissioner, we concur with those agreements that the Northern Territory Metals Award in the title that Mr Power referred to as is a common rule award and would apply for mechanical maintenance functions provided by United KG at the Gove site. On that basis, we think that that award is the applicable award for the safety net determination in this matter.

PN24

THE COMMISSIONER: Thank you.

PN25

MS KRARUP: May it please the Commission, the AWU also concurs with that issue.

PN26

THE COMMISSIONER: Okay, then. Well, that makes that matter easier than I thought it was going to be. Beyond that, then, the issues - I've raised a number of issues with the parties in respect of some correspondence that I've distributed prior to today's hearing. I have done so not for reasons of causing you an undue workload, but for reasons of just ensuring that you've got some time to have a look at some general questions that are floating around, and hopefully that will enable the easy progression of the matter and the rapid facilitation of the approval of the agreement.

PN27

But that said, are there any other issues, first of all, that the parties wish to raise with me before we go into those particular questions? There was one matter - sorry, Mr Moorhead. Were you moving to make a question?

PN28

MR MOORHEAD: No, Commissioner.

PN29

THE COMMISSIONER: All right. There was one matter that played on my mind in respect of a question that arose about the content of the agreement, and that is the application clause. The application clause, as I recall it - I don't exactly have it directly in front of me now - was a general one referring to the Alcan facilities in the Gove. It was more or less an application clause that specified to the facilities in a geographic context. It doesn't actually specify the facilities as such. Can you possibly give me some explanation of that, and I say that because there is some virtue in having some specificity in respect to the application clause, and I am just wondering whether the parties might be able to inform me in a bit more detail of the actual extent of the application clause.

PN30

MR POWER: They are the only facilities at Gove. Unless we perhaps listed the name of the actual entities/facilities located at Gove, that would be the only other way of describing it better, such as Alcan Proprietary Limited or Alcan Australia, whatever. We could probably find the name of the actual entity and their facilities consisting of at Gove, but my understanding is Gove is a peninsula in Northern Territory which is solely Alcan's refining facilities, including wharves, docks, warehouse, processing plant.

PN31

THE COMMISSIONER: So you're saying the application of the agreement won't give rise to any dispute or ambiguity?

PN32

MR POWER: No, and that is the previous agreement had that application clause.

PN33

THE COMMISSIONER: Do any of the other parties want to - Mr Moorhead.

PN34

MR MOORHEAD: Commissioner, my instructions are that the operations of Alcan are fairly easily definable because they are both remote and distinct and that the parties are quite clear on the operations that it refers to. Alcan is a major mining and processing site and as such is quite distant from any other operations and we say that it's clearly understandable by the words of the application clause. And in terms of not only the area that it covers, the geographical area that it covers, but the persons to whom it covers, the classification structure also provides the list of classifications to which the agreement will apply, and, in my submission, that's fairly clear, that it applies to tradespersons and people assisting them in the mechanical and engineering and other engineering areas at the Alcan site.

PN35

THE COMMISSIONER: All right, okay. Now, it was the actual identity of the sites that interests me in particular, but on the basis of your submissions, Mr Power, there isn't an issue in terms of the ready identification and definability of the application of the agreement, and that's shared by Mr Moorhead in that respect. Thank you. There was an outstanding issue in the statutory declarations that I'll just deal with, just a housekeeping matter, if you like, initially, and then we'll move on to more substantive matters. This dealt with whether or not the application and the agreement ended a bargaining period. I've got two yeses and one no. Would someone like to tell me what that - - -

PN36

MR POWER: The reason for that is that the Australian Workers' Union served a bargaining notice on the company but the AMWU did not. There were two different unions. One did serve a bargaining notice. So in respect of the AWUs notice of intention to bargain, it settles that application.

PN37

THE COMMISSIONER: Right, okay. And the other union party made no such notice.

PN38

MR POWER: No, that's correct.

PN39

THE COMMISSIONER: Okay. That explains that. Thank you. If we could move to the content of my correspondence. There are a number of issues that I would like to address, but the principal issue, or one of the principal issues, if you like, concerns really the interaction of two clauses in the agreement, and that is the dispute resolution clause itself. There's clause 23.2 and clause 31, Union Representation - headed Union Representation. Now, Mr Power, would you like to take me to that issue.

PN40

MR POWER: Yes. We've had some discussions prior to the hearing between the parties. Look, perhaps the most appropriate way is to give an undertaking in terms of section 170LV that the clause will not operate in a manner which would breach the Workplace Relations Act, particularly including the operation of freedom of association.

PN41

THE COMMISSIONER: Well, that satisfies me to some extent. I'm not too sure how it assists someone in the field, though, the reader as such of the agreement. Can you be a bit more explicit to me as to how you see the clause actually operating? My principal problem is simply there's quite some Commission case history on the role of exclusive representation type clauses, and that's what's troubled me about whether or not it meets the tests of those quite a number of important authorities. So I need to just have an explanation from you as to how the two clauses interact.

PN42

You're looking at your dispute resolution clause. How precisely does that operate, for purposes of whether another union, not mentioned or not here today, some other union representative or a non-union representative or someone representing themselves - how do they access the dispute resolution procedure in its entirety?

PN43

MR POWER: Well, I guess when the word "exclusive" was used, the parties accept that they wish to express the traditional coverage. There is traditional coverage over the AMWU covering mechanical tradespersons and the AWU covering civil tradespersons. It would not need to operate, or should not operate, that the parties referred to in clause 23 would mean the parties to the agreement, being United KG, the two relevant unions, and also the employees of United KG. So an employee could activate, in our submission, the consultative procedures in clause 23.

PN44

I might note it does use the word "coverage" and it doesn't use the word "representation" in the clause, so I don't think the clause limits representation of employees by themselves or other agents, so to speak. It's probably a traditional clause that's come down over the years that has dealt with traditional demarcations, we would indicate.

PN45

THE COMMISSIONER: Oh, no, I can understand the - particularly in your geographic area, I can understand the derivation of the coverage clause as such. The problem it gives rise to is when it's merged with 23.2.

PN46

MR POWER: Yes.

PN47

THE COMMISSIONER: At the moment, the way in which clause 23.2 is structured, it says:

PN48

The matter shall be raised by the employee or employees concerned with their immediate supervisor and the employees concerned may seek the assistance of their elected employee representative at any stage.

PN49

Now, the issue then is, well, who is that in terms of the amount of closure, the amount of limitation, that person has on their choice of representative.

PN50

MR POWER: I think - - -

PN51

THE COMMISSIONER: And there's a related question, and it goes to the issue of how discrimination potentially works in the disputes resolution procedure. Can someone have their own representative, be it a different union or a non-union representative, and progress through the dispute resolution procedure to the same extent as someone who has a representative of the two union parties who are here today?

PN52

MR POWER: Well, I think that perhaps the only way around perhaps both issues is we give an undertaking to the effect, and this might have to be worded by the parties - - -

PN53

THE COMMISSIONER: I don't want to make you - - -

PN54

MR POWER: - - - and re-submit it, to the effect that it doesn't operate to breach the Act and does not deny an employee to representation for the purposes of the agreement for the Act, that it's not limited by the parties in the agreement.

PN55

THE COMMISSIONER: I don't want to, Mr Power, put you on the spot of actually having to draft a clause right here in front of me, because I wouldn't like to be in your position of having to do that. I think what I'll do about this clause is - well, look, first of all, we won't fix a clause just now. Do the other parties want to say something about this first of all? I'm about to suggest that I give you some time to the extent that you want, some time amongst yourselves to draft a form of words for purposes of an undertaking and submit that to me when it's appropriate or when you've got some time in the next week or so, and if I'm satisfied with that, then I'll proceed with certification. We might then have a report-back in a few months time. You can tell me how that's operating in the field.

PN56

Rather than bog you down with any administrative process, that might be the easiest way to do it, and I'll do that through LV and through a decision which I'll publish in the next few days. Mr Moorhead, does that appear to be an approach that may assist?

PN57

MR MOORHEAD: I believe that time is really of the essence in terms of certifying this agreement. Is it possible that the parties might be able to discuss such an undertaking in a short adjournment and bring that back to you so that you may then make your decisions rather than delaying it, you know, unnecessarily.

PN58

THE COMMISSIONER: That's fine. No, I'm sorry. The question of delay was only to assist yourselves. I mean, I can expedite the matter as quickly as needs be once I'm satisfied that there's a suitable clause. If you are able to draft a suitable clause in a very short period of time, I will make it conditional on a report-back in three months or so, and I'll do it by telephone if it's of ease to the parties, and you can tell me how it's operating in practice and whether there are any issues arising from it. Sorry?

PN59

MR O'BYRNE: Commissioner, as a background to this, we have on a number of occasions had employees represented by a nominated representative in practice over the past three years when we've had that clause in operation, and that includes, for instance, in the event an employee nominates counsellors, their representative, to pursue entitlements on a certain issue, and in operation it's our clear intention to give the employee the choice as to who they wish to have represent them.

PN60

THE COMMISSIONER: Yes, so we need to have that out front as well. I know there are other background concerns as well that you obviously have, but still for purposes of satisfying 160 to 170 LU2A of the Act you need to have those matters at the front as well, but we'll deal with the issue of the undertaking shortly. But we may as well, first of all, exhaust any other residual matters that we have as well.

PN61

The dispute resolution clause itself, the final paragraph referring to the role of the Australian Industrial Relations Commission: forgive me for having some sensitivity to this, because I just know that either this is going to come back to myself or one of my colleagues and they're going to come back to me and ask me what did you approve in that clause and what did it actually mean I was meant to do. When I read the clause, it has some, at least in my reading, some ambiguity. Again, this is something you might be able to clarify. As I read it - well, literally, the clause says:

PN62

In addition, if conciliation fails to resolve the dispute, the parties agree to seek the Commission's assistance to establish an agreed statement of facts regarding the dispute question -

PN63

about the application of the agreement, I presume, but nonetheless - and agree, importantly -

PN64

...and agree to the Commission exercising his arbitration powers under section 111AA and section 170LW as appropriate.

PN65

And then it ends:

PN66

...and the parties agree to abide by the decision of the Commissioner.

PN67

Well, you need to just tell me exactly what is the work that that clause is doing. Precisely what are you asking the Commission to do? I mean, section 111AA orders arise in conciliation. They're essentially consent orders. LW needs an empowering clause to it. I mean, Mr Moorhead, do you want - or Mr Power, do you want to go first?

PN68

MR POWER: Yes, I think the intent of the parties is that it's a dispute resolution procedure that gives the Commission - that provides a step-by-step process to conciliation, then arbitration. It's our understanding it's not the intention of the parties to limit the Commission's powers in that respect.

PN69

THE COMMISSIONER: Don't get me wrong, Mr Power. I don't mind if you limit the powers of the Commission. I'm trying to avoid future disputes over what was agreed. To be honest with you, it's not my problem.

PN70

MR POWER: Yes. No, I understand. I understand.

PN71

THE COMMISSIONER: I just don't want you - - -

PN72

MR POWER: I think someone was trying to be a little bit clever and precise. This was a previous agreement's clause as well. I think that they're trying to draw from the Act which enables the Commission to arbitrate disputes. So it's our understanding that this would be a typical clause, and if it fails to be resolved through a party system, it then goes to the Commission for conciliation and arbitration in accordance with the Act and to the jurisdiction conferred by the Act.

PN73

MR MOORHEAD: Commissioner, that's our understanding too, the understanding of the AMWU, that the process would be that the disputes procedure be followed and if the matter ended up going to the Commission there would be a conciliation and out of that conciliation the parties would agree on what is the question, the issue which lies between them, and that then the matter could either be dealt with under section 111AA for recommendation by consent or that the matter be arbitrated under section 170LW.

PN74

The intent of that clause, in our opinion, is to provide the Commission with the power under section 170LW to arbitrate the matters but also providing that the parties do consent to any recommendation under section 111AA.

PN75

THE COMMISSIONER: Yes, it's probably the separation of the consent orders from the LW which would help in the drafting, but we've got some words on transcript and the parties can sort out the detail of it. Hopefully it will never arise, but at least you've got yourselves some words from the various times at the time of the certification of the agreement to rely upon for discussion and settling any concerns you have over the detailed meaning of that clause.

PN76

I was also interested in the right-of-entry clause, not so much those issues about the clause that were above what the right-of-entry provision the Act provides, but I just want to ensure that there's no diminution or derogation of the statutory provisions. It's not a matter that goes to LT. It's really for purposes of just clarification, that's all. So I am not going to use this as a basis for saying that I am not going to certify it. I'm just saying that I think this is an issue that would be useful for us just to clarify.

PN77

My principal concern there really is you've established your own regime, a right-of-entry regime. I don't know how exclusive it is to section 285 or part 11A, or division 11A, of the Act that doesn't derogate from the right of an employee to consent to having discussions, which is provided for under the Act. Again, look, this isn't a matter that's going to go to LT, but they're issues that you may need to have clear in your own minds. Mr Moorhead?

PN78

MR MOORHEAD: Commissioner, my understanding of that clause is that the parties may still, if they choose, exercise the - the union parties may still exercise the powers they have under sections 285A, B, C and D. However, over and above those, there may be situations where the right of entry - sorry - the official seeks to enter for a reason other than to discuss with the employees or to - for a suspected breach of the Act for a time and wages' inspection or documents, but in that situation, United KG are agreeing that the officials may come on site.

PN79

I think it's more out of a convenience aspect in terms of it's quite a distant site, and in terms of organising for the employees to be available for meetings at the times when the official will arrive and for site access to be arranged with the head contractor, Alcan, and those situations, this just facilitates that right of entry in those circumstances but doesn't derogate from the right that the accredited officials may have under the Act. I know there was a query raised in terms of accredited official and - - -

PN80

THE COMMISSIONER: On a simple reading, I just couldn't tell who an accredited official was relative to the statutory regime.

PN81

MR MOORHEAD: Commissioner, our understanding is that an accredited official is a person who holds a right-of-entry permit. I think the term is "authorised industrial officer."

PN82

THE COMMISSIONER: All right. That settles the matter if that's true. Is that your agreement, that a permit holder is a - they're interchangeable concepts. It's not a broadening of the concept at all?

PN83

MR MOORHEAD: No, Commissioner.

PN84

THE COMMISSIONER: Okay. That's what was just in my mind. Again, it doesn't got to LT. It was just a question of the application of the agreement because eventually it might come back through the disputes resolution clause. With that said, I don't think we have any more outstanding issues. We're aware of the correspondence. There are some other questions I raised in the correspondence I've resolved in my own mind subsequently, so I won't trouble you with those at this time. What we'll do at the moment, then, we'll adjourn and allow the parties some time to confer to draft up a form of words in respect of section 170LV, and at that time you can just inform my associate that you've come to an agreement. I'll come back and we'll have a look at it, then hopefully be in a position to certify the agreement. Thank you, and we adjourn.

SHORT ADJOURNMENT [11.35am]

RESUMED [11.47am]

PN85

MR O'BYRNE: Commissioner, I apologise for - Mr Power has had to go to another hearing so he has asked me to communicate that.

PN86

THE COMMISSIONER: That's all right, Mr O'Byrne.

PN87

MR O'BYRNE: The parties have agreed on the following wording. Basically, it is not the intention of the parties that clause 31 is to interfere with or limit an employee's right to alternative representation as provided within the Workplace Relations Act 1996.

PN88

THE COMMISSIONER: All right. Are you able to provide me with a copy of that ?

PN89

MR O'BYRNE: Sure. Yes, I can - - -

PN90

THE COMMISSIONER: Perhaps if you just read it out to me once more, a bit more slowly, and I'll just try and transcribe it.

PN91

MR O'BYRNE: Okay. It is not the parties - - -

PN92

THE COMMISSIONER: It is not the intention of the parties?

PN93

MR O'BYRNE: Yes, not the intention of the parties that clause 31 - - -

PN94

THE COMMISSIONER: Yes.

PN95

MR O'BYRNE: - - - is to interfere with or limit an employee's right to alternative representation as provided within the Workplace Relations Act 1996.

PN96

THE COMMISSIONER: Okay. What I'll do, I'll write a decision in respect of this matter and I'll include that undertaking in the decision, and I'll give some thought to how it's given effect. So there will be some condition now around this as well when the decision comes out, but it won't trouble you in the short term. It may require a report-back to me in the future, but we'll come to that for the purposes of the decision. That clause will satisfy me for the time being then.

PN97

MR O'BYRNE: Thank you.

PN98

THE COMMISSIONER: Are there any other matters that the parties wish to bring to my attention at all in respect of this matter? Mr Moorhead?

PN99

MR MOORHEAD: Commissioner, only to say that the AMWU believes that the agreement meets the requirement of the Act on the basis of the statutory declaration provided and we commend it to you for certification from today's date.

PN100

THE COMMISSIONER: Good. Thank you, Mr Moorhead.

PN101

MS KRARUP: May it please the Commission, the AWU also cements that the agreement meets all the relevant provisions of the Workplace Act and rely on the information stated in the statutory declaration and commend the agreement for certification as of today's date.

PN102

THE COMMISSIONER: Good, thank you. On that basis, I will certify the agreement as of today. A decision will follow with the required order, and good luck to the parties in the operation of the agreement. We're adjourned.

ADJOURNED INDEFINITELY [11.50am]