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Australian Industrial Relations Commission Transcripts |
2972 
, Transcript of Proceedings [2004] AIRCTrans 2319 (22 June 2004)
AUSCRIPT PTY LTD
ABN 76 082 664 220
ADMINISTRATOR APPOINTED
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
O/N 1829
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
AG2004/ 2972
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LJ of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Another for
certification of The Crane Aluminium
Extrusions Angaston Agreement 2003
ADELAIDE
10.00 AM, THURSDAY, 10 JUNE 2004
PN1
MR E. GRUE: I appear on behalf of the Australian Workers' Union - Greater South Australian branch and with me AWU branch organiser MR J. BRAITHWAITE and also AWU delegate MR C. NITS.
PN2
MR A. DEWYNTER: I appear on behalf of Crane Aluminium Extrusions and I am human resource manager for the Crane Group and with me MR M. HASZARD who is the general manager of Crane Aluminium Extrusions and MR G. COLWIL who is the plant manager of Angaston where we have our plant. Sitting in the back, and I entering appearances for them, Mr Senior Deputy President just in case that there is a question asked and they may need to respond is MR I. BICKERTON who is the manufacturing manager for Crane Aluminium Extrusions and looks after the plant at Angaston and one at Penrith and also MR M. HENSCHKE who is the systems manager for Crane Aluminium Extrusions at Angaston.
PN3
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dewynter. Now it is probably appropriate that I confirm to the parties that if my recollection serve me correctly, this matter was one about which I had a brief telephone discussion with Mr Braithwaite between one and 2 weeks ago. The context of that discussion was that if I recall it correctly, Mr Braithwaite, a question about the potential for concerns over the agreement to be considered as part of this hearing, as distinct from a separate dispute notification.
PN4
Again, if my recollection serves me correctly that matter was left entirely in Mr Braithwaite's hands. I simply raise that issue so that the parties are aware that I have that discussion with Mr Braithwaite. I don't see it as a discussion that impacts at all on this particular hearing today. Mr Grue, I am in your hands in this matter. It is appropriate though that I alert you to the fact that I see at least a couple of issues here. The first issue that I believe the parties will need to address me on is whether or not I do in fact have an agreement. In that regard, I have noted that the document that I have before me does not appear to be signed by the employer, and I have not received an employer statutory declaration.
PN5
In that regard, I also note the agreement has draft stamped all over it. The second issue of an immediate nature that I bring to your attention, is that there are some missing responses in the statutory declaration that go to issues that I will need to take into account, depending on that first question. The third one which I will raise now, by way of advance notice is that in accordance with my normal practice, if indeed there is an agreement before the Commission, such that there is a valid application I have a number of questions about that agreement itself. Those questions will depending on progress this morning, be put to the parties on the basis of my seeking advice as to their intention, rather an invitation to anyone to rewrite the document.
PN6
On that basis, I'm in your hands, Mr Grue.
PN7
MR GRUE: Thank you, sir. Sir, the AWU certainly believes that there is an agreement and pressed the certification of that agreement. In terms of those issues raised about the document being signed and there being no statutory declaration from the employer, we would say that there is no barrier to the Commission certifying the agreement despite the fact there is no signature on the agreement nor a statutory declaration from the employer. We say that all the requirements of section 170LT of the Workplace Relations Act have been met.
PN8
In relation to the fact that word "draft" appears on the actual document, it is certainly understood by the union and our members and by the company that this was essentially the final draft and the agreement that was to be put in place. The fact that "draft" appears all over the document is not a significant issue in our view. Sir, perhaps before I go any further on the issue of whether or not there is an agreement, perhaps your questions should be directed to the employer to see what their attitude, or initial attitude towards that question is, and to see whether there is a requirement for further discussion on that point.
PN9
THE SENIOR DEPUTY PRESIDENT: I see. Can I just clarify your position, first of all, Mr Grue? Am I correct in understanding that in accordance - or do you say that in accordance with section 170LJ(1), the employer made an agreement with the AWU and that that agreement was in accordance with section 170LJ(2) subsequently approved by a valid majority of employees?
PN10
MR GRUE: That is certainly the case, sir.
PN11
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Grue.
PN12
MR GRUE: I could give you a little bit of a time line if you want a greater explanation of that, but perhaps initially - - -
PN13
THE SENIOR DEPUTY PRESIDENT: We might get to that in a moment, if we need to. Mr Dewynter, what is the employer position with respect to whether or not I have an agreement before me.
PN14
MR DEWYNTER: Your Honour, let me just put it fairly briefly and succinctly. As I understand what we are doing today, is that there is currently an application before this Commission seeking certification of this document, this document you referred to as "draft". I think that in the issues that you raised about concerning this document, whether there was an agreement and so on are fundamental issues which I would like an opportunity if appropriate to address. Our position is that in this document, we believe, there are a number of significant hurdles both in terms of merit which go into the legal aspects of it as well, legal issues and legal hurdles to this Commission certifying this agreement.
PN15
The issues don't relate the lack of signature, the issues don't relate the fact that "draft" is stamped on the document. Your Honour, the issues relate to whether in fact there is an agreement and whether it is appropriate for this Commission to then actually force us to accept the document which we believe there are significant legal hurdles to. So that is our position. We don't believe that this Commission should certify the agreement as asked for by the AWU and if opportunity presents itself, I would like to make submissions as to why.
PN16
THE SENIOR DEPUTY PRESIDENT: Yes, I will certainly give you that opportunity, Mr Dewynter. For the purpose of clarifying the issue today though, do you have a copy of the Act available to you?
PN17
MR DEWYNTER: I do, and let me just be specific as to the areas that I rely upon which I believe are hurdles which need to be addressed. Section 170LT(5)(iv), that is certifying agreements. If your Honour just turns to that section:
PN18
If the agreement was made in accordance with 170LJ -
PN19
which is where it is -
PN20
a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely approved the agreement.
PN21
We believe that that really is an issue. I would raise also, and maybe this is an issue perhaps for us, but notwithstanding I think it goes to this. If you look at section 170LI(1)(ii):
PN22
For an application to be made to the Commission under this, there must be an agreement.
PN23
We in fact, say that there isn't an agreement. Also we say as the agreement currently stands, for the Commission to certify this agreement without addressing these hurdles which we say exist, it also, if you look to your Honour at section 170LA which places an obligation on the Commission to further the objects of this Act, and specifically:
PN24
To certify this agreement in its current form.
PN25
In our submission, certainly would if you turn to section 3(e) in terms of the principal object of this Act, we believe that to certify the agreement in its current form, would certainly not further the objects of this Act. Also your Honour, we rely upon a decision of Deputy President Hamilton which I would like to take the Commission to, handed down on 8 April 2003 Pampas (Victoria) Enterprise Bargaining Agreement 2002 PR29936. I have copies of this decision your Honour, to refer to, but some of the issues that are raised by this application - - -
PN26
THE SENIOR DEPUTY PRESIDENT: There is one number missing there, Mr Dewynter - 2993 - - -
PN27
MR DEWYNTER: I'm sorry, it was perhaps my sloppy pronunciation. Sir, it is PR929936, Deputy President Hamilton handed down on 8 April 2003.
PN28
THE SENIOR DEPUTY PRESIDENT: Mr Dewynter, I am going to undoubtedly give you an opportunity to make further submissions. What I am trying to do at the moment is ascertain the extent or the areas where the parties are in disagree. So what I propose to do is just to try to clarify a couple of issues associated with section 170LJ. I would then propose to give Mr Grue the opportunity to address me on why it is that he says there is an agreement in writing pursuant to section 170LI and that agreement was made in accordance with section 170LJ, and that agreement meets the prerequisites set out in section 170LT and LU necessary for certification.
PN29
I would then propose to give you the identical opportunity to tell me why you consider those necessary preconditions have not been met. Are you happy with that approach?
PN30
MR DEWYNTER: I'm more than happy with that approach.
PN31
THE SENIOR DEPUTY PRESIDENT: Now, the initial issue that I want to clarify with you requires that you have a quick look at section 170LJ(1). Am I to understand the employer position to be such that the employer did not make an agreement with the AWU?
PN32
MR DEWYNTER: We believe that is a fundamental problem, to that there is not an agreement.
PN33
THE SENIOR DEPUTY PRESIDENT: I see. If I am understanding you correctly, in addition to that concern which is founded on section 270LJ(1)?
PN34
MR DEWYNTER: Yes.
PN35
THE SENIOR DEPUTY PRESIDENT: You say there is a second set of concerns that go to the valid majority approval process envisaged in section 170LJ(2). Is that correct?
PN36
MR DEWYNTER: Yes, your Honour. If I could link to that. Section 170LT(5) - - -
PN37
THE SENIOR DEPUTY PRESIDENT: That is where (5) comes in - - -
PN38
MR DEWYNTER: - - - about the genuinely approved - yes, I do.
PN39
THE SENIOR DEPUTY PRESIDENT: All right, thank you. That concludes if you like our definition of the football field within which the game might now be played. Thank you. Mr Grue?
PN40
MR GRUE: Sir, essentially the union says there was an agreement. We do that on the basis that there was an offer and that there was an acceptance and our members voted upon that agreement and that there was a valid majority at that time, and that they fully understood the agreement that they voted upon. If I give you a little bit of a time line as to essentially what has happened in this particular situation. Perhaps before I go to that, I will make some - our view of the issues that the employer has in this case.
PN41
THE SENIOR DEPUTY PRESIDENT: Yes. Before you do that, Mr Grue, just a housekeeping issue. I have available about 45 minutes today. If the parties are collectively of a view that they are going to take a lot longer than that, then I will reschedule this hearing rather than breaking up your submissions. That is entirely a matter for you but I won't be able to go much beyond that three quarters of an hour from here.
PN42
MR GRUE: Sir, I would really like to see if we could try and get very close to wrapping it up.
PN43
THE SENIOR DEPUTY PRESIDENT: All right. Mr Dewynter, do you envisage that might be possible this morning?
PN44
MR DEWYNTER: If I speak quickly, Your Honour, and you don't ask me many questions, it is possible I will finish in about half an hour.
PN45
THE SENIOR DEPUTY PRESIDENT: All right, well, we will see how we go. Thank you. Yes, Mr Grue?
PN46
MR GRUE: In terms of an observation of the complaints the employer has about our desire to have this agreement certified, essentially what we say has happened is that the employer, after the valid majority has voted on the agreement, have turned their mind to a particular situation. They are now concerned that the agreement does not fully cover that situation and that despite the union's position, that the award and the agreement do cover the particular set of circumstances that is being thought of as a hypothetical situation, the employer now wishes to step away from an agreement that has been validly approved by a majority of its employees.
PN47
Sir, the employer made an in-principle offer on or about 11 March this year. That document was essentially a 2-page document which essentially outlined the substance of the offer. On or about 15th of -
PN48
THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that offer that I could look at?
PN49
MR GRUE: Yes, sir.
PN50
THE SENIOR DEPUTY PRESIDENT: Mr Dewynter, do you have any objection to my receiving that document which my associate has handed to you to look at as an exhibit in these proceedings?
PN51
MR DEWYNTER: No, not at all.
PN52
THE SENIOR DEPUTY PRESIDENT: Thank you. Could I ask that you hand it back to my associate? I note that you might have marked the document.
PN53
MR DEWYNTER: I will rub that out, your Honour. I apologise for that.
PN54
THE SENIOR DEPUTY PRESIDENT: You have put two pencil circles around 4 per cent. Do you want to see the document again, Mr Grue?
PN55
MR GRUE: No, sir.
PN56
THE SENIOR DEPUTY PRESIDENT: I will take it those circles don't reflect continuing changes and as they are marked in pencil they won't be taken into account. The document I will call AWU1, noting that it is the terms of offer to resolve Angaston EBA negotiations and that it is a document dated 11 March 2004. Is that an appropriate way of describing it, Mr Grue?
PN57
MR GRUE: Yes, sir.
PN58
THE SENIOR DEPUTY PRESIDENT: Are you happy with that description, Mr Dewynter?
PN59
PN60
MR GRUE: Senior Deputy President, after the in principle document was put to our members on 11 March and they voted to accept in principle the offer in that document, the employer - - -
PN61
THE SENIOR DEPUTY PRESIDENT: When did that vote occur?
PN62
MR GRUE: On 11 March, sir.
PN63
THE SENIOR DEPUTY PRESIDENT: On 11 March.
PN64
MR GRUE: There were three meetings on three different days of relevant shifts.
PN65
THE SENIOR DEPUTY PRESIDENT: I see. So that is not the ballot referred to in the statutory declaration.
PN66
MR GRUE: No, sir.
PN67
MR DEWYNTER: Sorry, your Honour, I am not clear what the March vote was.
PN68
THE SENIOR DEPUTY PRESIDENT: I am told by Mr Grue that that was accepted in principle in a ballot, or by a ballot, on 11 March.
PN69
MR GRUE: Sir, it was also because of the different shifts. It was the 11 and 12 and 13 of March, sir. Sir, at 6.5 on Mr Braithwaite's statutory declaration there is a reference to the union conducting meetings to explain the offer on the 10 and 12 March 2004. That should be corrected, I am instructed, to read 11, 12 and 13 March.
PN70
THE SENIOR DEPUTY PRESIDENT: Yes.
PN71
MR GRUE: At those meetings our members and the employees of the company accepted the in-principle offer. Then on or about 15 March - and we are not entirely sure of the date, given that Mr Braithwaite went on leave not long after the agreement was accepted in principle and the formalities of making the document available occurred but we say that on or about 15 March, not long after he went on leave, the document was distributed for all the employees and made available to them in accordance with the Act.
PN72
There was then upon Mr Braithwaite's return from leave, a formal vote on 5 and also on 8 May, on the actual agreement before you to accept the offer and there was a valid majority of employees. On 5 May the vote was taken. That involved the day shift, the afternoon shift and the night shift. The 8 May was a Saturday, sir, and essentially the weekend workers that were not available on fifth, then voted on the document on the eighth.
PN73
THE SENIOR DEPUTY PRESIDENT: Mr Grue, just in terms of the chronology, the advice in the statutory declaration at paragraph 6.2 is that the agreement was approved by a valid majority on the 5 and 8 May. I am understanding on the basis of your submission that it is those two May dates that represent the dates upon which there was a valid majority.
PN74
MR GRUE: Sir, it would be our position that essentially until the vote was really completed on 8 May, then we won't be in a position to - well, given the actual nature of the vote, you could have actually have said that the valid majority occurred on the fifth, but they hadn't - the formal process involving all those people who needed to vote on the document, was not completed until 8 May and essentially we would say that an official valid majority occurred on 8 May when the document was voted on.
PN75
THE SENIOR DEPUTY PRESIDENT: Well, can I take you to 6.4 in the statutory declaration? Upon what date was the agreement either provided to employees in written form or made readily available to them?
PN76
MR GRUE: We say some date on or about 15 March, but certainly well before the 14 days before the application was made. Essentially we say the document was generated and distributed not long after the in- principles agreement on 11 March.
PN77
THE SENIOR DEPUTY PRESIDENT: Who provided that agreement to employees?
PN78
MR GRUE: The employers, sir.
PN79
THE SENIOR DEPUTY PRESIDENT: Do you know whether it was provided to the employees individually or whether it was a document the employees simply had ready access to?
PN80
MR GRUE: Sir, it was essentially ready access to the document. The document was generated by the employer, given to the - essentially the negotiating committee and was then from that point distributed to, since we looked, the work areas and the employees had ready access to the document based upon that distribution, sir.
PN81
THE SENIOR DEPUTY PRESIDENT: I see, and who gave the document to the negotiating committee?
PN82
MR GRUE: The employer, sir. I think it was generated by a - bodies.
PN83
THE SENIOR DEPUTY PRESIDENT: There's a multiplicity of bodies before me. Can you be at all more specific?
PN84
MR GRUE: Mr Henschke, sir, as we believe.
PN85
THE SENIOR DEPUTY PRESIDENT: Yes.
PN86
MR GRUE: Sir, given that chronology, we say there was an offer and there was quite clearly an acceptance by the employees on 8 May.
PN87
THE SENIOR DEPUTY PRESIDENT: Yes. When do you say then that the agreement was made in accordance with section 170LJ(1). What I am putting to you there is there appears to me to be a two-stage process associated with a section 170LJ agreement. Stage one is generally accepted as: an agreement is made between an employer and one or more unions. Stage two involves the ratification or approval of that agreement by a valid majority. What I am looking for is the date upon which you say there was an agreement made with the AWU consistent with section 170LJ(1).
PN88
MR GRUE: Sir, we would say that the agreement was made with the union on 11 March. However, the formal processes involved of certification and the requirements under the Act were not complete until 8 May, sir.
PN89
THE SENIOR DEPUTY PRESIDENT: I see. Presumably that 11 March agreement that you say was made, was made through the agency of Mr Braithwaite?
PN90
MR GRUE: Yes, and the negotiating committee, sir.
PN91
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN92
MR GRUE: Sir, what we would say is, that regardless of whether it was 11 March or 8 May or any other date between those dates, there was certainly no withdrawal of any offer or an attempt to withdraw the offer prior to 8 May, but essentially what the employer is now doing is saying that despite there being an agreement, despite all the required processes being completed, now that we have suddenly got an issue we should be allowed to take a step back from this agreement and that until this other issue is resolved the agreement cannot proceed. Now, the union is quite happy to sit down with the employer and work through the particular issue in question.
PN93
THE SENIOR DEPUTY PRESIDENT: Okay, you have aroused my curiosity, Mr Grue. I won't be able to concentrate properly until you tell me what the issue is.
PN94
MR GRUE: Sir, the issue is there are particular work arrangements under the agreement which include a worker working simply on week-ends. They are called: week-end volunteers, sir, and the issue that has come up between the parties is the week-end volunteers' ability to benefit from public holidays and what affect a public holiday falling on a particular day and a particular week has on their employment and their entitlements and their conditions of employment. Sir, the background to this negotiation, and I'm sure Mr Dewynter will explain that there was a long process.
PN95
There was a difficult process to get the agreement to the point where it was finally approved by a valid majority, but that process touched on many, many things about previous work practices and the arrangements involving those that work on the weekend exclusively. So the issue in question is, having dealt with I think, 90 per cent of all issues about those work arrangements, that really should have been dealt with prior to this agreement but they are now dealt with in this agreement, the employer believes there is still one outstanding issue and that is the public holiday issue.
PN96
Sir, our position is the agreement and the award deal with that circumstance and essentially, the problem the employer has is what happens if there is a dispute about that in the future. There is no current dispute about any arrangements and how public holiday affects the so-called week-end volunteers but the employer is concerned there is the potential that the union has explained to the employer that our view is that if there is a dispute then we should follow the disputes resolution processes and ultimately, if need be, seek the assistance of the Commission in finally resolving such a dispute were it to occur. But this is all a hypothetical situation.
PN97
THE SENIOR DEPUTY PRESIDENT: Well, Mr Grue, if I look at AWU1, the second page of that document relates to week-end work arrangements. Am I correct in understanding that that proposal, if I can call it that, relates to those week-end volunteers to whom you have referred?
PN98
MR GRUE: Certainly, sir.
PN99
THE SENIOR DEPUTY PRESIDENT: And if I go down that page then to the heading of: Payment. It is paragraph 4, just below half-way down the page. That addresses, in part, clause 18: public holidays, in terms of a payment arrangement. Does that issue have the potential to impact on the matter that appears to be at the heart of this particular dispute?
PN100
MR GRUE: No, sir.
PN101
THE SENIOR DEPUTY PRESIDENT: I see. Now, then the second question that I have for you is: given the issue that you have described as: the ability for the week-end volunteers to benefit from public holidays, do you say to me that in accordance with section 170LJ(3), that reasonable steps were taken by the employer to ensure that the terms of the agreement relative to that issue were explained to all of the employees?
PN102
MR GRUE: Can I just have a moment?
PN103
THE SENIOR DEPUTY PRESIDENT: Yes.
PN104
MR GRUE: Sir, the employer made available paid time to the employees to have the agreement explained to them. So I would say they are the steps the employer took, other than the agreement with the committee.
PN105
THE SENIOR DEPUTY PRESIDENT: And when did this issue associated with weekend volunteers and their ability to benefit from public holidays first arise or when was it first brought to the attention of the AWU?
PN106
MR GRUE: Sir, we say it only became a live issue after 8 May. Excuse me, sir. Well, sir, in terms of the employer having any issues - - -
PN107
THE SENIOR DEPUTY PRESIDENT: Yes, I have no doubt the employer will tell me about that. I am focussed at this stage on the AWU position.
PN108
MR GRUE: Sir, a question was asked to Mr Braithwaite when the meeting of 5 May occurred. Can I just have another moment, sir? Sir, essentially one of the employees that worked the volunteer arrangement brought the matter to the attention of Mr Braithwaite on 5th.
PN109
THE SENIOR DEPUTY PRESIDENT: That is 5 May?
PN110
MR GRUE: 5 May, sir, when the vote was being taken. That was precipitated I think by a question from a worker who was working a more traditional arrangement about how they had been treated under the previous agreement in relation to public holidays. So the issue of public holidays came up then. Mr Braithwaite gave an explanation of what he believed to be the case and it was brought to the attention of the company after 8 May.
PN111
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN112
MR GRUE: But again, sir, what we would say is that in terms of characterising the particular problems, what we are faced with is an argument about a hypothetical dispute that could occur during the life of this agreement once the valid majority approved the agreement. Sir, and we would say that the employees were fully aware of what the agreement meant. They had it fully explained to them and I would also point out, sir, that if there is arguments about this individual's rights to public holidays or how public holidays impact upon them, then any argument about that would be relying not on this agreement but on the award provisions.
PN113
So certainly in terms of the question that was asked of the organiser on 5 May, it wasn't a situation where it was about a provision of the agreement but about how the award would interact with the agreement in a certain set of circumstances. And that also comes back to what the employer's complaint is I believe, that essentially this agreement is silent on what is to occur in a particular set of circumstances and the employer would like that resolved and has attempted to resolve it by withdrawing the agreement until there is agreement from the employees to agree to whatever the employer wishes to put forward in an attempt to resolve it.
PN114
I mean, the employer has met with out members and the employees and put forward suggestions to amend the agreement and I think that perhaps at the end of the day there may well be a situation where that does occur if the employees agree to amend the agreement. However, that is the way to resolve the problem. The problem is to either to agree to amend the agreement or if there is an ambiguity, then we can use other provisions under the Act to resolve the issue in question or we can use the powers under Section 170LW of the agreement to resolve any dispute that we currently don't have.
PN115
But there are steps to resolve the matter but nothing that has occurred to date should be an impediment to the agreement being certified and formalised and completed. It is not a way to resolve things after having an agreement to then say: well, we want to make a change to that agreement and the benefits under that agreement will be withheld until you agree to the change. And that is not the way to resolve this matter and that is I think what the company has attempted to do to date and why the company wishes to oppose a certification of the agreement.
PN116
They want to take one step back, renegotiate the agreement to deal with this particular issue and in terms of their bargaining position, rely upon the benefits under the agreement to get their way on the particular issue. Thank you, sir.
PN117
THE SENIOR DEPUTY PRESIDENT: Mr Grue, it seems to me, as I said right at the outset of these proceedings today, that there are if you like three categories of issue that will need to be addressed in this matter. There is an immediate category of issue that go to whether or not an application has been made in accordance with section 170LI on the basis that there is an agreement in writing and that agreement was reached through or was made through a process detailed in section 170LJ and I have already talked about the two-stage process.
PN118
I have taken it that you have addressed me on that first issue, that is whether or not there was or is an agreement in writing for the purposes of LI. There is a second issue that goes to the extent to which the requirements of section 170LT have been met and Mr Dewynter has foreshadowed an objection to certification on the grounds of section 170LT(5). But I am obligated to consider the entirety of 170LT in any decision to certify the agreement.
PN119
And as I foreshadowed to you, there are some omissions in terms of the information contained in the statutory declaration to the point where I don't think I have as yet heard from you over whether or not you say that the provisions of section 170LT are such that I can certify the agreement - can or should certify the agreement. Then there is the third issue that I haven't touched upon at all and I don't require you to address me on at this stage and that is when I take the parties through the agreement, I will raise a number of questions, a couple of which go to the factors that need to be taken into account to ensure that a provision of 170LU is not a matter which precludes certification of the agreement.
PN120
So I have taken it that your submissions to me to date have been focussed on that first issue which for the sake of brevity I will call the LI issue but it obviously incorporates LJ. Is there anything you want to say to me about the various criteria or to quote Munro Js words, "the positive preconditions in section 170LT"?
PN121
MR GRUE: Yes, sir, it is our submission in reliance upon the statutory declaration that has been filed and my instructions that the agreement does pass the no disadvantage test. There was a valid majority of persons who genuinely approved the agreement and we have said that the steps that have been taken and the stat dec also goes to the steps that were taken to communicate the agreement and make the agreement available to employees. Sir, the explanations that were provided to the work-force in relation to the agreement were appropriate.
PN122
Sir, the statutory declaration of Mr Braithwaite doesn't touch upon the make-up of the work-force and I can in quite rough numbers, give you approximates in terms of the make-up of the work-force. We would say that approximately there are 12 women as part of the work-force; we don't believe that there are any individuals from a non English-speaking background; we would say there are approximately six employees under the age of 21; we believe that there may be one individual of an Aboriginal Torres Strait Island descent; there are no disabled employees, part-time employees or casual employees, sir.
PN123
We would also say that clause 32 of the agreement includes procedures for the settling and preventing of disputes and, as I stated earlier, that particular clause empowers the Commission to resolve disputes under powers granted to it by the agreement and the Act under section 170LW and that involves conciliation and/or arbitration if necessary under the agreement and it also expires on 25 December, 2005.
PN124
Sir, given that information we would say that the statutory requirements of section 170LT of the Act are fully complied with and that there is no issues as to whether or not the agreement must be certified by the Commission. However, I am aware that my friend will raise particular issues about the genuineness of the approval and the fact of whether or not there was an agreement which I have already addressed, sir.
PN125
THE SENIOR DEPUTY PRESIDENT: Mr Grue, what is the total number of employees to be covered by the agreement?
PN126
MR GRUE: Sir, approximately 83, sir, but 103 I am advised by my friend.
PN127
THE SENIOR DEPUTY PRESIDENT: And in my deliberations on section 170LT(5), I would commonly have regard to section 170LE of the Act. Who do you say has explained the agreement to employees?
PN128
MR GRUE: Mr Braithwaite, sir.
PN129
THE SENIOR DEPUTY PRESIDENT: Am I to understand that explanation was a verbal one at meetings of employees and that it went through each of the various provisions of their agreement?
PN130
MR GRUE: Yes, sir. I mean, initially that two-page document was provided to employees. Then there was meetings where the vote was taken but prior to the vote being taken, what Mr Braithwaite does and is his practice, is to go through those matters which are different from previous agreements and give a verbal explanation to those things.
PN131
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN132
MR GRUE: Sir, I essentially think I have covered the first two issues.
PN133
THE SENIOR DEPUTY PRESIDENT: Yes, the only two that I need you to cover at this stage, Mr Grue. Now, Mr Dewynter, you are not going to get your half an hour.
PN134
MR DEWYNTER: No, your Honour. I don't know how you wish to proceed with this.
PN135
THE SENIOR DEPUTY PRESIDENT: I can give you a couple of options in that regard. We can adjourn these proceedings and recommence at 12.15 today, which would appear to me to maximise the fact that the parties are in the city and might be able to deal with the matter fairly quickly. Alternatively, I can give you a time for next week.
PN136
MR DEWYNTER: Can I confer with my colleagues, if I might?
PN137
THE SENIOR DEPUTY PRESIDENT: You certainly can.
PN138
MR DEWYNTER: Your Honour, thank you very much, look, if it is convenient to your Honour to have it heard at 12.15, we certainly would prefer that rather than, you know, to come back some later time. It just leaves the thing up in the air.
PN139
THE SENIOR DEPUTY PRESIDENT: I can give you a little over an hour from 12.15.
PN140
MR DEWYNTER: That will be excellent.
PN141
THE SENIOR DEPUTY PRESIDENT: That should be adequate time to conclude the matter.
PN142
MR DEWYNTER: I would hope so.
PN143
THE SENIOR DEPUTY PRESIDENT: All right. Now, before I do adjourn the matter, I am very conscious that I am yet to hear the detail of the employer concerns about this agreement but I am going to be sending you folks away for a little over an hour.
PN144
MR DEWYNTER: You are hoping for a miracle, are you?
PN145
THE SENIOR DEPUTY PRESIDENT: Of paramount concern to me is that the parties are here today with one party saying we have an agreement, we want it certified and the other party apparently is saying we don't have an agreement. The only issue that I am being called upon today to determine is whether or not the agreement should be certified. That issue may not resolve the underpinning concerns. It may not even resolve what I have had described very eloquently by Mr Grue as "the issue."
PN146
There would have to exist the possibility that you folks might collectively sit down over a cup of coffee somewhere and talk about where you might go from here and I would hate to deprive you all of the opportunity to do so. So that if the arena in which we are currently playing were to change on our resumption of the hearing, then I would understand that some wise heads may well have been at work. So that I don't want to send you away now into respective corner to await the arrival of a 12.15 resumption of these hostilities. I will adjourn the matter on that basis.
PN147
MR GRUE: Thank you, your Honour.
PN148
MR DEWYNTER: Thank you.
SHORT ADJOURNMENT [10.55pm]
RESUMED [12.15pm]
PN149
THE SENIOR DEPUTY PRESIDENT: Mr Dewynter, I suppose, it is beyond credibility that you folks may have reached some agreement in this matter?
PN150
MR DEWYNTER: I think that is a bit of a full on hope.
PN151
THE SENIOR DEPUTY PRESIDENT: Very well.
PN152
MR DEWYNTER: Although we did have a discussion, your Honour, and we did explore a possible option as to how this issue may be resolved but, unfortunately, that really got us nowhere.
PN153
THE SENIOR DEPUTY PRESIDENT: All right, I'm in your hands then.
PN154
MR DEWYNTER: Your Honour, when you asked earlier on in the proceedings what our attitude was. I indicated that we were opposed to making certification of the agreement and we did so on the basis of the factual position. We think that the approach adopted by the AWU lacks merit and, also, related to that is the fact that what the union is asking this Commission to do, we would submit, is contrary to the relevant law.
PN155
Now, what I would like to do, and I will do it in a fairly sort of quick fairly brief fashion, but sufficient to give the Commission an understanding of why we have adopted the position that we have. I will just simply go through the facts fairly quickly and then just go through some of the relevant law and show how the law relates to the relevant facts. We commenced negotiating an EBA at Angaston, your Honour, in about November 2003 so this point that we have reached has taken a long time coming and, unfortunately, from our perspective we haven't quite got there yet.
PN156
The nominal date for the EBA that was relevant that was applicable at Angaston expired on 25 December 2003. The parties that were negotiating this agreement were a negotiating committee of which the site delegate was one of the members of the negotiating committee and Mr Braithwaite, the union organiser, finally reached agreement after lots of meeting, lots of to-ing and fro-ing, from our perspective in late April. Significant aspects of the agreement were that we agreed to an 11 per cent salary increase over 2 years, 7 per cent year 1 and 4 per cent year 2, and you would have seen that your Honour from the exhibit AWU1 that was handed up.
PN157
We rationalised what was a fairly significant issue for us was the use of weekend volunteers. Now, up until then Angaston had an arrangement whereby full-time people would work Saturdays and Sundays, two 12-hour shifts, that is they would work 24 hours, and they would be paid as if they were 38-hour, with some penalties, additions, etcetera - I won't go into the details of that - I think some of those details are evident from AWU1.
PN158
The reason I say it was significant that we resolve this is because up until now what happened was that there was an individual agreement between the person - nobody was forced to do weekend volunteers - but there would be an individual agreement, people would put their hands up and say: we want to work 2 days a week, have 5 days off and paid as if we were 38-hour per week workers, that arrangement had existed for about 4-1/2 years on this basis of discussions between the company and each individual and an individual signing what effectively was a Common Law contract that they agreed to work this weekend volunteer arrangement and be paid in a certain way.
PN159
The union indicated under negotiations they believed that this arrangement was outside the EBA and it was important for us because we had this issue of potentially the illegality of what we were doing, potential issues of back pay that we sought to resolve it. The union indicated that they were happy during our negotiations, they were happy to leave this issue out there, but from our perspective that was hardly satisfactory given that they had put us quite formally on notice that they believed that this arrangement that was taking place at Angaston was outside of the EBA and possibly the Metal Industry Award, so it was a significant part of us agreeing to resolving this issue of weekend volunteers.
PN160
In fact, your Honour, part of the increase that was granted was in return for the union's and people's agreement to weekend volunteers, part of the increase in fact was for that. Of course, another significant aspect of - I'm just picking up the significant aspects - was the date of effect. We agreed that the date of effect of any increases would date from date of expiry of the EBA, the nominal expiry date, 25 December. You heard from the union's side from my colleague that the vote took place on the 8th and 9th. Met a company representative - - -
PN161
THE SENIOR DEPUTY PRESIDENT: Let me just go back a moment, Mr Dewynter. You said to me that the employer and the negotiating committee reached agreement in late April. How did you reach agreement?
PN162
MR DEWYNTER: It would have been negotiations and it would have been reduced to a document.
PN163
THE SENIOR DEPUTY PRESIDENT: I see. Now, that document was compiled by the employer?
PN164
MR DEWYNTER: Yes, it was, your Honour.
PN165
THE SENIOR DEPUTY PRESIDENT: Who was involved in that process of reaching agreement?
PN166
MR DEWYNTER: Myself - in fact the people around - sitting here on the employer's side were all involved in the discussions. The negotiating committee, Mr Braithwaite, Mr Grue and the site delegate. In fact, one of the issues - and it is the issue that is still unresolved between us - this issue of public holiday entitlements. Let me perhaps be a little bit more specific about the issue. People who work Saturday/Sunday have Monday to Friday off. What happens if a public holiday falls on Monday to Friday?
PN167
The company had up to when these discussions took place had not given public holidays to individuals - and for your reference your Honour it is clause 7.5.4 of the Metal Industry Award and it is headed: Rostered Day Off Falling On Public Holidays. I'm sure your Honour is aware of that clause, if you work funny shifts and you have days off and on one of your days off a public holiday falls on that day you get either another day's pay, or you get a day added to annual leave, etcetera.
PN168
We took the view and it had been custom and practice that people who work Saturday and Sundays and have Monday to Friday off, that provision applied to 38-hour week workers and, really, if you characterise for the purpose of this clause, if you characterise these people they were if anything more akin to part-time workers, rather than somebody who worked 38 hours.
PN169
We had not given them this time off up to date. We believe that appendix E that is attached to this exhaustively covered the people's entitlements and we proceeded on the basis because of the discussions, because of the custom and practice, because of the nature of the work that, in fact, this provision was excluded. People who worked two 12-hour shifts were not entitled to this public holiday provision.
PN170
THE SENIOR DEPUTY PRESIDENT: Yes, now, can I take you back to late April?
PN171
MR DEWYNTER: Yes.
PN172
THE SENIOR DEPUTY PRESIDENT: Am I correct in understanding then that the employer in concert with the negotiating committee and the AWU reached agreement on a form of words which fundamentally reflect the application that I have today? Is that the document that I have today?
PN173
MR DEWYNTER: With qualification, yes.
PN174
THE SENIOR DEPUTY PRESIDENT: Yes, well, was that document that was produced in late April ever changed?
PN175
MR DEWYNTER: It was changed after discussions with negotiating committee but, no, this document that you would have in front of you - and I haven't seen the document that the Commission has - but if it is this one, that document had not changed.
PN176
THE SENIOR DEPUTY PRESIDENT: Let's clarify that issue lest there be any doubt. We have five copies of the document and I shall hand you up one of those. The question that I have is whether or not that was the document that was agreed upon in late April?
PN177
MR DEWYNTER: Just bear with me for a moment, sir.
PN178
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN179
MR DEWYNTER: Yes, your Honour.
PN180
THE SENIOR DEPUTY PRESIDENT: Now, what was the employer's expectation with regard to that document, Mr Dewynter? Once the document was prepared and presumably it was a document prepared by the employer, is that the case?
PN181
MR DEWYNTER: Yes, it was.
PN182
THE SENIOR DEPUTY PRESIDENT: What did the employer understand in late April, the date upon which the document was agreed, was then going to happen?
PN183
MR DEWYNTER: With the document?
PN184
THE SENIOR DEPUTY PRESIDENT: Yes.
PN185
MR DEWYNTER: The document was then going to be presented to the employees, be before the employees for 2 weeks and then the employees would vote on that document.
PN186
THE SENIOR DEPUTY PRESIDENT: Okay. Well, then, can I ask you to look at section 170LJ(1) of the Act, and tell me whether or not you consider that as of late April an agreement was made between the employer and the AWU?
PN187
MR DEWYNTER: No.
PN188
THE SENIOR DEPUTY PRESIDENT: Then, what was made?
PN189
MR DEWYNTER: Well, what was made was what purported to be an agreement in relation to weekend volunteers. We had a view that this document exhaustively covered and specified what the conditions were - - -
PN190
THE SENIOR DEPUTY PRESIDENT: But that was a view that you formulated at some later stage.
PN191
MR DEWYNTER: No, that was a view we had at the time of entering the agreement, it is not as if we have gone along - the issue has been raised and we have gone: oops. That is not the sequence of events. The issue about the legitimacy of the conditions of weekend volunteers was an issue which was raised by the AWU during negotiations. It was an issue that we wanted to resolve. We wanted to specify, we wanted to clarify, have no uncertainty about the conditions which related to people who worked these two 12-hour shifts. We paid money for that agreement - AWU agreement.
PN192
We believed we had resolved all the issues. We believed that we had this issue of what happened to these two 12-hour shift people on the public holiday - if a public holiday fell on the Monday to Friday, we believed that we had resolved it. We believed that appendix E exhaustively defined their conditions in relation to payment and entitlements.
PN193
THE SENIOR DEPUTY PRESIDENT: So that as of the end of April when this document was produced, is the document that is now before me.
PN194
MR DEWYNTER: Mm.
PN195
THE SENIOR DEPUTY PRESIDENT: By the employer for publication to employees to allow them to vote on it. Should I understand that the employer then believed that there was an agreement?
PN196
MR DEWYNTER: Yes.
PN197
THE SENIOR DEPUTY PRESIDENT: Now, at what point did the employer stop believing that there was an agreement?
PN198
MR DEWYNTER: The vote took place on the 8th and 9th. I think my colleague said 8th and the 9th.
PN199
MR ..........: It is the 5th and 8th.
PN200
MR DEWYNTER: I'm sorry?
PN201
MR ..........: 5th and the 8th.
PN202
MR DEWYNTER: 5th and the 8th, yes, 5 and the 8th, I apologise. There was a meeting that took place where Mr Braithwaite and a couple of members of the negotiating committee - one member of the negotiating committee saw Mr Henschke on the 10th and said: we have this vote and there were a number of issues that were discussed. At that point, which is almost immediately after the vote is taken, the union tells Mr Henschke what their assumption is, what their view is as to what was agreed and one of the things that the union believes was agreed was this entitlement for public holidays for weekend volunteers, that is, if the day off falls on a public holiday. At that point Mr Henschke says to the union, I quote: no, that is not our understanding, I don't think we have an agreement, words to that effect.
PN203
THE SENIOR DEPUTY PRESIDENT: Now, once again, at the risk of becoming fixated on the end of April, can I take you back to the end of April. When the document, that is the agreement that you understood you had made at that stage with the AWU, had been prepared for distribution and provision to the employees, did the employer post that up on the noticeboards, or did the employer provide it to employees? How was it circulated?
PN204
MR DEWYNTER: I'm sorry. I understand it was distributed through the negotiating committee.
PN205
THE SENIOR DEPUTY PRESIDENT: Yes. Now, was the agreement supported by any form of covering note from the employer?
PN206
MR DEWYNTER: Not that I'm aware of. It was left up to the union to explain the agreement to the employees and, no, we didn't actually as set out in section 170LJ(3), the employer certainly didn't fulfil that requirement and that is that before any approval was given the terms of the agreement are explained to all the persons. We relied upon the AWU and the negotiating committee to explain the terms of that agreement.
PN207
THE SENIOR DEPUTY PRESIDENT: Well, you are in good company. The substantial majority of LJ agreements are formulated on that basis.
PN208
MR DEWYNTER: In fact, subsequent events proved to us how costly an error that was to us.
PN209
THE SENIOR DEPUTY PRESIDENT: It may or may not be the case, Mr Dewynter.
PN210
MR DEWYNTER: Certainly.
PN211
THE SENIOR DEPUTY PRESIDENT: Is it fair then for me to say that if I work my way through section 170LJ(1), as at the end of April 2004, the employer understood that an agreement had been made with the AWU and that that agreement reflected the terms of the document I now have before me and that the agreement was then provided to the negotiating committee in accordance with section 170LJ(3), and was explained to the employees by the AWU in accordance with section 170LJ(3) with the acquiescence of the employer who, as I understand from the AWU, provided paid time off during which that explanation could occur, and that in accordance with section 170LJ(2) the AWU advised you on 5 May 2004 that a valid majority of the persons present at the meeting that occurred on 5 May had endorsed the agreement, but it was at that point that the parties begged to differ about the extent to which the agreement reflected a common understanding of the provisions relative to voluntary weekend work?
PN212
MR DEWYNTER: I think that is most probably that is not a bad summary, your Honour, other than the timing. There were two votes I understand, the 5th and the 8th - - -
PN213
THE SENIOR DEPUTY PRESIDENT: My understanding is that the concern over the voluntary weekend was brought to the employer's attention on the 5th, notwithstanding that a second meeting occurred on the 8th.
PN214
MR DEWYNTER: I think it was on the 10th, your Honour, that the actual issue came up.
PN215
THE SENIOR DEPUTY PRESIDENT: I see.
PN216
MR DEWYNTER: This issue about weekend volunteers and entitlement to public holidays had been discussed during negotiations. It had been discussed during negotiations.
PN217
THE SENIOR DEPUTY PRESIDENT: Yes.
PN218
MR DEWYNTER: Clearly, now, the parties had formed quite different views of what the outcome of those discussions were.
PN219
THE SENIOR DEPUTY PRESIDENT: Yes, well, that has been known to happen too, Mr Dewynter.
PN220
MR DEWYNTER: I understand that, your Honour, and where this was actually brought to clarity was on the 10th when Mr Braithwaite came to see the company to tell the company about the results of the vote, and that is when we realised the fact that there was in fact this agreement about this issue. Now, if I can just move on - in fact, as a result of that meeting there were a number of issues that were raised by the AWU.
PN221
THE SENIOR DEPUTY PRESIDENT: What meetings?
PN222
MR DEWYNTER: The 10th, this is a meeting with Mr Henschke on 10th, there were a number of issues that were raised and if I could just hand out a document and I won't labour the points but I am certainly trying to give the Commission some background as to why we are where we are. There were a number of issues raised, this is a document from me, an email addressed to Mr Braithwaite dated 13 May 2004 at 3.45 pm, it is headed: EBA discussions. Hi John - it talks about a couple of issues - one is the over time payment and the mean break.
PN223
THE SENIOR DEPUTY PRESIDENT: This email, Mr Dewynter, followed a discussion that you were involved in with Mr Braithwaite on or shortly after 10 May?
PN224
MR DEWYNTER: I had telephone conversations with Mr Braithwaite because I'm based in Sydney and Mr Braithwaite here so the meeting - issue was raised first on 10th with Mr Henschke. I had subsequent telephone conversations with Mr Braithwaite following the raising of those issues on 10th. The document that you see, the email that you have in front of you, your Honour, is an attempt to resolve some of those issues that were being raised.
PN225
THE SENIOR DEPUTY PRESIDENT: Okay, but can I just come back a step? On that meeting of 10 May did the AWU advise the employer that a valid majority of employees had endorsed the agreement?
PN226
MR DEWYNTER: Yes, and if you see at point 2, your Honour, it says: day off falling on a public holiday and one of the issues that was raised, one which we believe is quite a significant issue, and that concerns the resolution of these terms and conditions of employment and what happens if people who work these two shifts, what happens if a public holidays falls on a Monday to Friday. I set out what the position is and basically say: no, that is not our understanding that is not what was agreed.
PN227
We don't believe those people who do this, who are entitled to - I mean, there is a number of reasons why we took that view and if I could just take the Commission to the bottom of page 1 and just simply say: people come off a roster in a sense when they go on the weekend work and therefore do not have days off in the normal sense of a shift worker. They get Monday to Friday off so it would be unfair to give them additional - and etcetera, etcetera. I mean, these were some of the logic that we used in negotiations with the AWU and that is why we believe appendix E exhaustively covered the considers of weekend workers.
PN228
THE SENIOR DEPUTY PRESIDENT: Mr Dewynter, do you propose that I admit that document?
PN229
MR DEWYNTER: I think in terms of what I say subsequently when I refer to the cases it may be relevant to admit it.
PN230
THE SENIOR DEPUTY PRESIDENT: Can I take it, Mr Grue, you have got no objection to the document?
PN231
PN232
THE SENIOR DEPUTY PRESIDENT: Mr Dewynter, the question arises as of 13 May 2004 when that email was sent to Mr Braithwaite did the employer understand that it had an agreement with the union?
PN233
MR DEWYNTER: No, we didn't, we understood from 10 May that we had problems.
PN234
THE SENIOR DEPUTY PRESIDENT: Did you understand from 10 May you had problems in either of two categories? It seems to me you either, as of 10 May, you understood that you had an agreement but were in disagreement over what that actually meant, or alternatively, that you had no agreement at all?
PN235
MR DEWYNTER: The latter view.
PN236
THE SENIOR DEPUTY PRESIDENT: At what point then, in very specific terms, did the employer understand that it did not have an agreement, because you see what I am raising with you now is that it appears to me that as of later April the employer understood they had an agreement, they had made an agreement with the AWU. That agreement was obviously subject to approval by a valid majority.
PN237
At the time when you were appraised at the outcome of that valid majority decision you were also appraised, as I understand it, of a differing interpretation of the provisions of the agreement relative to voluntary weekend work. I am just endeavouring to ascertain the point in time at which the employer understood that you didn't have an agreement?
PN238
MR DEWYNTER: Well, I have to say it to you, your Honour, that there is some law which I want to take the Commission to on this point but in terms of specific words what was said was when Mr Henschke - when this issue was raised with Mr Henschke about the conditions relating to weekend work. The fact that there was this disagreement, Mr Henschke response to the union and the delegate was - and I quote, although this is a close approximation of what I think he said is: I do not think we have an agreement, or I did not believe we have an agreement. That was a response to Mr Braithwaite and one of the job delegates who attended. I'm happy to call Mr Henschke as a witness to actually say that, if that would assist.
PN239
THE SENIOR DEPUTY PRESIDENT: Mr Dewynter, it is not my case, it is your case, you do as you see fit.
PN240
MR DEWYNTER: No, look, I think in the circumstances, your Honour, that must be sufficient. A number of discussions took place and the email from myself to Mr Braithwaite saying that we need to resolve this issue and talking about the possible ways of resolving this issue.
PN241
THE SENIOR DEPUTY PRESIDENT: So did you understand that if you reached agreement with Mr Braithwaite what would then have to happen?
PN242
MR DEWYNTER: There were a number of propositions that we talked about, your Honour, because if you look at the clause, if you look at the award it is not clear that you have got - and that is one of the reasons why we are here, it is not clear that people who work weekends are entitled to a day off. One of the options we are looking, one raised with Mr Braithwaite was we would agree on how this provision was to be applied. That was we would agree that because there is this uncertainty, there is this gap, we would agree on how if the condition is to be applied. That was one of the options I talked about with Mr Braithwaite.
PN243
THE SENIOR DEPUTY PRESIDENT: Did those discussions go to varying the actual agreement?
PN244
MR DEWYNTER: Subsequent discussions, yes, went to - subsequent discussions, not the initial discussions, subsequent discussions that took place after 21 May or thereafter talked about varying the actual agreement. The initial discussions didn't. On 21 May the plant manager, Mr Colwil, met with the negotiating committee to discuss the company position, explain what the company's position was. He understood that the negotiating committee actually agreed with the company's position and in fact that the site delegate - after the discussion with this negotiating committee - was going to call the union and in fact to tell the union not to pursue this issue that the negotiating committee was in support of the company position.
PN245
Subsequently, the delegate asked the company to actually prepare an amendment to appendix E to put it beyond doubt as to what was actually being proposed and in fact there was an amendment made and circulated as a result of that request from the negotiating - from the site delegate and unfortunately I didn't bring any more copies of this - but can I just hand up a document which is titled: Appendix E.
EXHIBIT #CA2 EMPLOYER PROPOSAL FOR AN AMENDMENT TO APPENDIX E OF THE AGREEMENT
PN246
MR DEWYNTER: What it sought to do, your Honour, after discussion, an agreement with the negotiating committee, what it sought to do was to actually pout this issue beyond doubt and where you have got the amendments, your Honour, for ease of reference have been highlighted and they are also shaded dark, so it is under the payment clause and also under the weekend crew conditions where it says, under payment, it says:
PN247
Payment to weekend volunteers will be made in accordance with clause 17, over time, and clause 18, public holidays (for rates only).
PN248
That is the addition. Under: Weekend Crew Conditions, your Honour, the very last point:
PN249
In the event of a shift performed on a public holiday, the rate of pay will be double time and a half. Any other provisions re public holidays do not apply to weekend volunteers, ie an extra day's leave does not apply.
PN250
So the additions are: any other provisions re public holidays do not apply to weekend volunteers. Now, we believed in fact we had agreement certainly from the negotiating committee to that variation. In discussions with Mr Braithwaite we understood that he subsequently came back and said: that is going to have to be voted on, I'm going to have to seek direction - and I can't recall the precise words - seek direction from the members, which I understood he did on 28th of 5th and the response we subsequently got from the union was that the membership endorsed the union proceeding with this application for certification and that the clause - that the amendment that we had put forward in fact wasn't supported.
PN251
THE SENIOR DEPUTY PRESIDENT: Mr Dewynter, two questions arise. First of all, following the meeting with the negotiating committee on 21 May was the document that I called CA2 then published to employees?
PN252
MR DEWYNTER: Your Honour, this was only give to the negotiating committee.
PN253
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN254
MR DEWYNTER: I had spoken to Mr Braithwaite on 28th of 5th and told him we were very unhappy with the approach and I used the words to the effect of "trying to stitch us up with an agreement". We didn't think that was the appropriate course to take and that, in our view, we had no agreement given that this issue was such a fundamental part of us reaching agreement in the first place. We thought that this issue had been resolved, we paid money, additional money for this and we believed therefore that we had no agreement. We met with the union on 2 June to try and find some way through this. There were a number of suggestions, discussions, that took place.
PN255
We met with the negotiating committee on 2 June as well, that is the negotiating committee at Angaston. Then myself, Mr Colwil and also Mr Haszard met with all the employees on site to explain to them what the position was, what the company's position was. We explained to them that there was an application currently before the Commission, it was going to be heard on 10th and that we would oppose the application because of the reasons essentially that I outlined to the Commission.
PN256
THE SENIOR DEPUTY PRESIDENT: When did that meeting occur?
PN257
MR DEWYNTER: On 2 and 3 June, we met with all the employees on the three shifts, day shift, afternoon shift and night shift. Told them that we would oppose the application, told them why we would oppose the application and in fact we got a fairly positive response from the employees in terms of the position that we were putting and in fact from the shop floor there were a number of suggestions that were raised by the employees as to how we could possibly resolve this.
PN258
What they understood, what they were prepared, what they - look, we didn't grill the employees, but certainly a number of the employees, a significant number of the employees were surprised at the company's position, didn't understand that that was what the problem was, didn't understand that that was what the issue was and when the company's position was explained appeared to be very supportive of the company's position, in fact, your Honour, if I could hand up another exhibit?
PN259
THE SENIOR DEPUTY PRESIDENT: Has a copy of that gone to Mr Grue?
PN260
MR DEWYNTER: Yes, it has, I just passed over a copy and I think we dropped in a copy of this document with the unions on 3 June and we handed a copy of this document to Mr Braithwaite.
PN261
THE SENIOR DEPUTY PRESIDENT: Yes, so if I call this document CA3, does it reflect an employer proposal provided to employees on 3 June?
PN262
PN263
MR DEWYNTER: It follows the meetings we had on 3 and 4 - sorry, 2 and 3 June with the employees. It comes up with the feedback that we got and tries to put some form of words to take account of the feedback and fairly briefly, it seeks to resolve the issues and - - -
PN264
THE SENIOR DEPUTY PRESIDENT: So you put this to the union as a proposed way of bridging the difference between the parties following your management discussions with employees on 2nd and 3rd?
PN265
MR DEWYNTER: Yes, your Honour, and it is fairly self-explanatory as to what we seek to do. We put to the union, to Mr Braithwaite that a possible way to resolve this without doing what we are currently doing is that we would seek the Commission's forbearance to defer the hearing on 10th. People would vote on this document - potentially because it was before them on 3rd and 4th - on 18th, and we could be back in the Commission shortly thereafter subject to the Commission's availability where we would have an agreed position.
PN266
That is what was put to the union. The union indicated that they would prefer to proceed with the application on the 10th and that this matter would be considered after the application for certification was heard. Mr Colwil met with all employees again on the 4th to explain CA3 to all employees and on the 7th employees were asked to indicate, your Honour, what their attitude was to this clause - - -
PN267
THE SENIOR DEPUTY PRESIDENT: To the clause or to the proposal in CA3?
PN268
MR DEWYNTER: I'm sorry. Proposal - the proposal in CA3. We basically said to employees because lots of the employees responded to us that they weren't certain what the company's position was on this issue of weekend volunteers. We thought CA3 then captured what our position was and we asked employees: well, what do you think of it? And 103 possible votes, 47 of them actually said: yeah, and signed it and said: yeah, we're willing to support it. We think it's - yeah, we've got no problems with it. Thirty in addition to the 47 just ticked and said: yeah, we would support it.
PN269
PN270
MR DEWYNTER: People weren't required to sign. They were invited to sign by Mr Colwil.
PN271
THE SENIOR DEPUTY PRESIDENT: So can I just clarify one issue associated with this? The question that was put to the employees on 7 June was consistently in the terms set out at the top of each of those pages in CA4, is that correct?
PN272
MR DEWYNTER: Yes, yes it was. The process was CA3, was explained to the employees and then subsequently, "Are you willing to support the company position" et cetera, "in accordance with CA3?".
PN273
THE SENIOR DEPUTY PRESIDENT: So you didn't understand on 7 June that you had an enterprise bargaining agreement?
PN274
MR DEWYNTER: No.
PN275
THE SENIOR DEPUTY PRESIDENT: But that is how it is referenced in that invitation to vote?
PN276
MR DEWYNTER: "Are you willing to support to the company seeking amendment" - oh, okay. I take your point, your Honour. Yes, it is.
PN277
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN278
MR DEWYNTER: And where we are now, and it is quite sort of - what can I say - certainly after eight months we were disappointed that so much effort and goodwill on both sides has gone in to try and reach an agreement and we seem to have locked horns, so to speak, on this issue. From our perspective, your Honour, the facts I believe reveal that we've consistently said that - and our behaviour has been consistent - that as soon as we found out what on the 10th, what the union's position was, we've said: hold on, whoa. We don't have an agreement. Mr Henschke said that very clearly. We saw this issue as not being a trivial issue, not being an issue that can be resolved once the agreement is ratified.
PN279
From our perspective, resolving the conditions, getting agreement to the conditions was fundamental to the agreement being reached in the first place so it is very hard for us to see the logic of ratifying the agreement then using the agreement to resolve this issue when what we say is: well, hold on, that aspect was fundamental to us reaching agreement in the first place. So how can you certify an agreement where one of the items that led you to this agreement is in fact not there?
PN280
I suppose from our perspective it is also fairly positive that there is a majority of people who are saying once we had the opportunity - and that sort of references my previous comment - once we had an opportunity to explain or took the opportunity to explain the position to the employees, as you can see from the figures, out of potentially 91 people who were available to vote, 77 said: yeah, we would - we agree. 14 said - well, 12 weren't asked - 154 said: well, we make no comment. In terms of what this means for the Commission, can I hand up to the Commission this Pampas decision which I referred to earlier, a decision of Deputy President Hamilton? I don't think you need to mark this as an exhibit.
PN281
THE SENIOR DEPUTY PRESIDENT: I won't mark it as an exhibit.
PN282
MR DEWYNTER: I suppose it is an interesting case, your Honour, and no doubt your Honour is aware of the case because it relates to some of the issues that were canvassed by my colleague. I suppose the distinguishing feature there is that one of the unions that were a party to the agreement, the CEPU, basically didn't front to the certification proceedings. That covered a minority of the employees on the site. The other unions fronted, supported the agreement. The CEPU didn't sign the agreement, they didn't front and Deputy President Hamilton had the issue of deciding - they made no submissions, made no contact with his Honour and he was required to decide what to do with that, whether in fact he could make a certified agreement which bound them.
PN283
THE SENIOR DEPUTY PRESIDENT: Yes, you can take it that I - will read through it very carefully, Mr Dewynter.
PN284
MR DEWYNTER: The point that I want to raise in relation to this is at paragraph 12, your Honour, on page 3. Sorry, paragraph 13. I apologise. I'm sorry, paragraph 12. I apologise again. Paragraph 12 and I quote:
PN285
It may seem a strange result that an agreement is reached and the party is bound in the absence of a signature of that party but the Act does not require a signature. The Act simply requires an agreement to be in writing. The Australian Industrial Relations Commission rules require a signature but that may be waived.
PN286
This is an aspect that I want to focus on and I'm aware that the previous clauses would appear, on the face of it, to support what my colleague is saying but that is not the aspect that I want to focus on. The next aspect is what I want to focus on: whether an agreement exists in the absence of a signature is a matter of fact to be determined in each case, as it is, for example, in the common law.
PN287
Now, this edition of Cheshire and Fifoot, Law of Contract is perhaps getting as old as I am but there is a provision - there's a part of this law of contract, your Honour, that relates to mutual mistake and on my particular edition of Cheshire and Fifoot, Law of Contract - it is the 4th Australian Edition - no doubt contract law moves but, as your Honour would be aware, looking at some of the cases, it obviously does not move necessarily that quickly. So I would think that this aspect is still quite relevant and it is paragraphs 940 and 941 and 942. And I just - if the Commission would bear with me, let me just quote this:
PN288
The whole question is one of offer and acceptance. The second category of cases where, to outward appearances, a contract has been concluded but one of the parties alleges that in his mind, that his mind was affected by a fundamental mistake of fact and that he never intended to make that precise contract.
PN289
Going on down to paragraph 942 and I quote at "Common Law" under: Fundamental Mistake Material:
PN290
This principle stated by Blackburn J in the passage has always been regarded as an authoritative statement of the law.
PN291
The particular case is Kennedy v Panama et cetera, Royal Mail Company and what this goes on to say about that case:
PN292
A mistake is wholly immaterial to common law unless it results in a complete difference in substance between what the mistaken party bargained for and what in fact he will obtain if the contract is fulfilled as, for example, where the buyer intends to buy real pearls and the seller intends to sell imitation pearls. Since what is tendered as a consideration differs essentially from what the promise contracted for, there is truth a failure of consideration.
PN293
Then it goes on a little bit further. Just taking up that point that Deputy President Hamilton made that, whether there is an agreement or not, one would look to the common law for some assistance and I say - and I suppose I don't want to labour my submissions - but the issue of resolving the terms and conditions for weekend volunteers, given the previous statement from the union that this was outside of the award, was fundamental to us reaching agreement. We paid money. There was specific payments made to resolve those issues. For us, how can we have an agreement when that clearly what we thought we were buying, we didn't get? In fact I would suggest, your Honour, with respect that the principle that is enunciated by Blackburn J could equally apply to the circumstances of this case.
PN294
I've touched upon the Act and for completeness sake let me just very briefly take your Honour again to the Act and again section 170(l)(i), which talks about nature of agreement and this section basically says that for an application to be made to the Commission under this division, there must be an agreement and our point is based on what I've gone through, that we don't believe in fact that that basic requirement has been met - genuinely - the requirement to genuinely approve the agreement under section 170(l)(t)(5). Now, given the differences between us, I'm not quite certain what it is that the employees have actually genuinely approved. Certainly they wouldn't approve our position because our position wasn't put and if the union put their position, that certainly wasn't, we believe, the agreement that was reached.
PN295
So in terms of genuine approval, we don't believe that there can be genuine approval. There was approval but I don't believe that the requirements of that section have been met.
PN296
THE SENIOR DEPUTY PRESIDENT: Mr. Dewynter, go to CA3, which was the employer proposal put on 3 June.
PN297
MR DEWYNTER: Yes, sir.
PN298
THE SENIOR DEPUTY PRESIDENT: Look at the first of the two items incorporated into that employer proposal. Were the first proposal to be implemented, what change would be made to what provision of the agreement document which I have before me?
PN299
MR DEWYNTER: You are saying if this was agreed, what would happen to - - -
PN300
THE SENIOR DEPUTY PRESIDENT: To what section of the agreement proposal?
PN301
MR DEWYNTER: Most probably what we would need to do, your Honour, is if we turn to Appendix E we would add those two provisions to Appendix E. Appendix E is the weekend work arrangement. I don't know whether we would change anything. We would simply add those provisions to Appendix E. It is about the third-last page, your Honour. We would simply add that possibly to Weekend Crew Conditions.
PN302
THE SENIOR DEPUTY PRESIDENT: And what change would the employer propose to make to give effect to the second of the issues addressed in CA3?
PN303
MR DEWYNTER: The second issue was something which - we are working on the basis of feedback from the shop floor, your Honour - the second issue was something that we occasionally did which disadvantaged individuals and individuals said: well, hold on, the way you do this disadvantages us. Can you not do it? So we said: okay. So we would simply add that as well, pretty much as it is, to that - additions rather than any change to the other bits and pieces of the provision. So just finishing off your Honour, where our position is, we thought as well - and I've just referred to it before but let me just for completeness sake - section 170(l)(a) and in particular subsection (1) and section 3(e) of the Objects of the Act, effective agreement making.
PN304
Certainly to ratify, certify this document as it is, no way can it be construed as effective agreement making because we've got an agreement which the parties can't agree on. It is certainly certifying its - - -
PN305
THE SENIOR DEPUTY PRESIDENT: You are not an orphan in that regard, Mr Dewynter.
PN306
MR DEWYNTER: I'm sorry?
PN307
THE SENIOR DEPUTY PRESIDENT: You're not an orphan in that regard.
PN308
MR DEWYNTER: I suppose where we've been at pains to try and distinguish this, it is not as if we had the terms of the clause discussed, agreed and some set of facts came up which subsequently put some sort of different slant on it. What this was, was this was raised, it was an issue before the negotiations, we sought to clarify, we sought to codify, we sought to make sure that the conditions were agreed. That was part of what our understanding was when the agreement was actually purported to be made. So often to the extent that it was a fundamental aspect of us reaching agreement. It is not that it was something that came subsequently.
PN309
It was something that we thought we had agreed which led us to the agreement. We paid money - it was consideration, clear consideration given for it. There's a fairly significant part of this document or certainly a part of this document deals with it so, yes. Look, from our perspective it was fundamental to us reaching agreement. Don't have it, we believe we therefore don't have an agreement. Now, we looked at the ways of trying to resolve this and, certainly from our perspective, what we put to the union was that these proceedings be adjourned and that employees be given an opportunity to formally vote on this document.
PN310
Unfortunately that wasn't a course of action that the union was willing to consider. They basically say: well, no, let's make the agreement and then worry about it later. We just don't think is suitable at all. That really covers what I wanted to say, your Honour.
PN311
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Dewynter. Mr Grue?
PN312
MR GRUE: Sir, my friend has raised a number of issues a lot of which go to the merit of the employer's point of view about what is essentially a dispute over the interpretation or application of the agreement. All of that in my submission is irrelevant. Everything that happened after agreement was reached between the parties is irrelevant. We would like to make one comment about what has transpired since agreement was reached, and the conduct of the employer in going to our members, its employees, with particular points of view, the way it has conducted itself with the negotiating committee.
PN313
This agreement actually resolved a very, very complex technical issue that needed to be resolved, and the decision that it needed to be resolved was the employer's decision. There was an amount of goodwill that was required to resolve it and the effort of both parties to resolve it was above and beyond what you would ordinarily expect when it comes to reaching agreement. I think the outcome of the actual agreement led to a great deal of good will between the parties, and believing that they had done a fantastic job in resolving some of the issues between them. Mr Dewynter has talked about the company's belief that the agreement was to cover a situation exhaustively.
PN314
I would only make one comment in relation to that. If you give people enough time to think about a situation, they can come up with many hypothetical situations. Many different interpretations of ordinary different words and this Commission, on a regular basis deals with parties of reasonable people that cannot agree as to what certain words mean, what was the intention of particular parties and what was agreed to and what wasn't agreed to. There are processes in the Act, processes in the agreement itself for resolving that type of agreement and that is the way we believe this matter should be dealt with.
PN315
The conduct of the employer in its dealings with the negotiating committee and with our members since this issue has become a live issue, has I think done some considerable damage to what was a positive relationship between the employer and the union. There was nothing new in what Mr Dewynter has said. He has told his point of view on these things before and the union is quite prepared to deal with the issue but it is not prepared to withhold the benefits of an agreement that was made from its members until the other issue is resolved.
PN316
We certainly would never support a concept where our members are told that unless they agree to amendments or changes, then you know, the whole of the agreement and all of those benefits will be withdrawn, and that is the context in which exhibit CA4 was developed. I can advise the Commission that we have actually taken instructions from our members in how to proceed with this matter. We have been instructed by 61 to 16 to reject the wording that is proposed by the employer in terms of the amendments and to proceed with this application for the certification of this agreement.
PN317
Perhaps not that we won't deal with the issue once this matter is resolved, but we are quite prepared to do that. But we are clearly under instructions to press the application for this agreement to be certified and we see no reason why it should not be certified. My friend's point of view directed you to some aspects of contract law. Quite clearly, you don't have in this case a fundamental mistake of fact. The agreement was in front of the employer, the employer generated the document. The fact that there was an interpretation on a hypothetical situation raised at some time after agreement was reached, is neither here nor there. Agreement was reached and there were processes to deal with the current problem that the parties face.
PN318
Sir, you have also been directed to the authority of Pampas Pastry and various unions, a case about the CEPU not providing a stat dec, not appearing in the Commission and not signing the agreement. Essentially, we believe that authority supports the union's position, and that is once an agreement is reached, the party cannot pull out at the last moment. The reality is, if that kind of conduct was to be allowed, it would lead to a situation where you would not have effective agreement making. You would have a situation where a party, whether it be a union or an employer could reach agreement and go through all these processes and at the last moment pull back.
PN319
The mischief that that could possibly create if that sort of conduct was to be allowed, would be very destructive to the whole concept of effective agreement making. We would draw the Commission's attention particularly to the objects of Part VIB, and that is that the objects of the parties to facilitate the making and certifying by the Commission of certain agreements - we believe that the Act, common law, previous matters in this Commission all quite clearly indicate that the Commission is bound given our application to certify the agreement. There is one issue I would just like to touch on, and that is in relation to section 170LJ, and the obligation on the employer: to take reasonable steps to ensure that - - -
PN320
THE SENIOR DEPUTY PRESIDENT: LJ(3).
PN321
MR GRUE: Yes. Section 170LJ(3)(b) that the terms are explained to all persons. We would say that it is certainly a reasonable step for an employer to give time for a union to fully explain the terms of the agreement. I would also say that when that actually happened in this particular case, there was certainly no position put forward by the union in relation to these circumstances. This became - although it was discussed during negotiations, only became a live issue once - well, after the 10 May and by 10 May the agreement was made and in fact, certain formalities had already been completed as well.
PN322
Given that, there is no basis on which the Commission can refuse to certify. Thank you, sir.
PN323
THE SENIOR DEPUTY PRESIDENT: Mr Grue, two issues. One is fairly quickly dealt with, one might take a little longer. Upon what basis do you say that I should waive compliance with rule 50 of the Commission's rules? Rule 50 relates to the use of Form R31 and the requirement amongst other things:
PN324
For the signed copies of the agreement to be provided and a statutory declaration to be lodged.
PN325
MR GRUE: Sir, we would say that - we would return to the position that was stated in the Pampas decision. If that requirement was not waived then by withholding a statutory declaration at the last moment could undermine effective agreement making, and that is why we have pressed - or request that the Commission waive those rules and equate - in relation to the requirement for a statutory declaration and the signature, sir.
PN326
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, I indicated to the parties there were three categories of issues. We have dealt fairly extensively with the first two. There do exist however, a number of clauses in the agreement about which I was going to ask questions. Given the fact that once again we have run out of time, I am little loathe to embark on a process of trying to work through those issues with the parties in this particular forum. What I propose to do is to consider the arguments that have been put to me about the first two issues, and depending on those arguments, or depending on the conclusion that I reach relative to those arguments it may be that I say that the agreement is not going to be certified, in that there is no valid application before me pursuant to section 170LI.
PN327
It may be alternatively, that I say that whilst there is a valid application, the agreement will not be certified for other reasons associated with section 170LJ or LT. Alternatively, I might reach a conclusion that the agreement ought to be certified subject to consideration of the various particular provisions about which I will require further clarification. In that event, I would propose to re-list the matter. I would envisage that hearing could be conducted by way of a video link if that assisted you, Mr Dewynter.
PN328
MR DEWYNTER: I will fit in with the Commission, your Honour.
PN329
THE SENIOR DEPUTY PRESIDENT: It is very common that we have those hearings which generally only take a very brief period of time. I ask the parties questions about their intention with respect to the agreement, and in some cases require from them undertakings, so that I would envisage that within the next one to 2 weeks at the outside I will have available to the parties a decision on this particular issue, and subject to that decision may or may not choose to reconvene a hearing to address specific provisions in the agreement. Are you happy with that approach, Mr Grue?
PN330
MR GRUE: Yes, sir.
PN331
MR DEWYNTER: That suits me, your Honour.
PN332
THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn the matter on that basis.
ADJOURNED INDEFINITELY [1.33pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #AWU1 TERMS OF OFFER TO RESOLVE ANGASTON EBA NEGOTIATIONS DATED 11/03/2004 PN60
EXHIBIT #CA1 EMAIL DATED 13/05/2004 PN232
EXHIBIT #CA2 EMPLOYER PROPOSAL FOR AN AMENDMENT TO APPENDIX E OF THE AGREEMENT PN246
EXHIBIT #CA3 EMPLOYER PROPOSAL PROVIDED TO EMPLOYEES ON 3 JUNE PN263
EXHIBIT #CA4 SUMMARY OF VOTES RECORDED BY EMPLOYEES ON 07/06/2003 PN270
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