Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees v Ergon Energy Corporation Limited & Ors [2005] QIRC 23 (2005) 178 QGIG 200

[Extract from Queensland Government Industrial Gazette, dated 11 March, 2005, Vol. 178, No.10, pages 200-202] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 148 – assistance in negotiating by conciliation Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees AND Ergon Energy Corporation Limited and Others (No. B260 of 2005) DEPUTY PRESIDENT BLOOMFIELD 24 February 2005 Application for assistance pursuant to s. 148 – Whether a breakdown in negotiations – Purpose of s. 148 – Whether appropriate use of s. 148 – Discretion – Intended use of “declaration of breakdown in negotiations” different to that contemplated by s. 148 – No further action to be taken by Commission. DECISION On Tuesday, 22 February 2005, Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (AMACSU) filed a “Request for Help to Make a Certified Agreement” in the Registry. The request indicated AMACSU had attempted to negotiate a certified agreement with Ergon Energy Corporation Limited (Ergon) and declared there had been a breakdown in negotiations. AMACSU requested the urgent assistance of the Commission, under s. 148(1)(a) of the Industrial Relations Act 1999 (the Act), to help the parties make a certified agreement. Acting on this request and declaration the Commission as presently constituted listed the matter for conference on the afternoon of Wednesday, 23 February 2005. At this conference appearances were entered for AMACSU, Ergon, Queensland Services, Industrial Union of Employees (QSU), The Electrical Trades Union of Employees of Australia, Queensland Branch (ETU), Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) and Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees (FEDFA). The Minister for Employment, Training and Industrial Relations (the Minister) entered an appearance, as of right, under s. 322(1)(a) of the Act. All those who entered appearances opposed AMACSU’s request for assistance pursuant to s. 148 of the Act on the basis that Ergon and all of the union parties with which it was negotiating, including AMACSU, had reached an “in- principle” agreement on a new certified agreement during the course of negotiations on 28 January 2005. This “in- principle” agreement, according to Mr Herbert, who represented Ergon, was of the second type contemplated by the High Court in Masters v Cameron [1954] HCA 72; 191 CLR 353. All that was left for the parties to do was to commit their agreement to writing and “wordsmith” the document. Given that an agreement had been reached, Mr Herbert said, AMACSU could not declare any breakdown in negotiations. Consequently, the Commission’s jurisdiction under s. 148 of the Act could not be enlivened. Mr Herbert also said AMACSU subsequently appeared to have had second thoughts about the agreement it had reached with Ergon. It was now attempting to withdraw from the agreement notwithstanding that its representatives, and all the other unions, had concluded their negotiations with Ergon. AMACSU was now (apparently) trying to re-negotiate the original agreement to achieve something radically different. This was not the purpose of s. 148 of the Act. In support of his contention that an agreement had been reached, Mr Herbert said Ergon would be in a position to lead evidence to that effect if called upon. Mr Herbert said Ergon’s negotiators had carefully clarified whether representatives of the organisations present at the negotiating table on 28 January 2005 had the authority to make an “in-principle” agreement with Ergon that day. All organisations present, except QSU, indicated that their representatives were so authorised. Further, when the AMACSU representative was specifically asked whether an “in- principle” agreement had been reached he responded in the affirmative. In support of his contention that an agreement had been reached on 28 January 2005 Mr Kimber SC, who represented ETU, AMEPKU and FEDFA, tabled an affidavit from Mr Peter Simpson, Assistant State Secretary of ETU. Mr Simpson’s affidavit traced the general history of the enterprise bargaining negotiations with Ergon and specifically dealt with those elements of the negotiations which led to the introduction of what has become known as the EDSD Allowance. Further, Mr Simpson’s affidavit confirmed Ergon’s version of the events of 28 January 2005 to the effect that “in-principle” agreement was reached that day with all unions (including AMACSU) with the exception of QSU, which had to await the outcome of a telephone hook-up of its delegates. Mr Kimber also said Mr Simpson’s affidavit confirmed there was simply no jurisdictional foundation to AMACSU’s declaration of a breakdown in negotiations. This meant it could not seek assistance under s. 148 of the Act. Mr Kimber also said AMACSU seemed to be attempting to forge a new step in the agreement making/certification process not provided for in the legislation. If AMACSU had concerns about the EDSD Allowance, or some other feature of the -- 1 of 3 -- 2 proposed certified agreement, the appropriate time to raise those concerns was during the certification process. Mr Horneman-Wren, who represented the Minister, said the Minister supported the contention an agreement had been reached between the parties and, accordingly, AMACSU could not invoke s. 148 of the Act “after the event”. In response to the above contentions and evidence Ms Garrett, who represented AMACSU, disputed that any “in- principle” agreement had been made on 28 January 2005, or any other date. Ms Garrett said AMACSU’s representatives began raising concerns the nature of the EDSD Allowance by (at least) 21 February 2005 and Ms Webster specifically raised the union’s concerns during the course of the meeting on 28 January 2005. Further, Ms Garrett said, it is a “well known practice in industry” that only elected officials could commit an organisation, such as AMACSU, to an agreement. A delegate had no such power. Ms Garrett also said correspondence to AMACSU from Mr Glover of Ergon, dated 7 February 2005, hardly suggested that an agreement had been reached because he was still seeking confirmation, as late as that date, as to whether AMACSU was prepared to agree on a final document This contradicted the suggestion a concluded agreement had been reached prior to that date. [Rather than support the submission the letter actually contradicts it. Its terms reflect the submission of Mr Herbert that the agreement only had to be “wordsmithed”.]. In response to an enquiry from the Commission about what AMACSU hoped to achieve if the Commission accepted that negotiations had broken down and decided to provide assistance under s. 148 of the Act, Ms Garrett advised that the union was concerned about the rationale behind the EDSD Allowance and its potential discriminatory effects. As such, AMACSU was hopeful that the Commission could assist the union in this respect by requiring Ergon to provide the appropriate detail to explain the rationale for its proposed different treatment of its male and female workforce by way of the introduction of EDSD Allowance. Ms Garrett said the provision of such information would assist AMACSU to better understand where Ergon was coming from and allow it to better prepare to address such issues during the certification process. Further, it could help Ergon understand AMACSU’s concerns to the extent that Ergon might re-consider its position. Finally, it might also obviate some of the matters which would otherwise only arise once the certification hearing commenced. In response, Mr Herbert said it was “now plain” what the purpose of AMACSU’s s. 148 request was. It had nothing to do with a breakdown in negotiations. Rather, AMACSU had purported to “declare” a breakdown in negotiations in the “vain hope” the Commission’s involvement might cause Ergon to change its mind. Mr Herbert said this was a “wrong use” of s. 148 of the Act. Mr Herbert said Ergon had reached a concluded agreement with all of the unions with which it was negotiating, including AMACSU. Ergon was not going to change its mind. Whilst the Commission could require Ergon to attend any conference it might call, if it acceded to AMACSU’s request for assistance pursuant to s. 148 of the Act, it could not require Ergon to make any concessions or to alter, in any way, the agreement it had already reached with all the other unions. As a matter of discretion, Mr Herbert said, the Commission should, in all of the circumstances, decline AMACSU’s request for assistance. In support of Mr Herbert’s submission that the Commission should decline to assist AMACSU, Mr Kimber said it was now abundantly clear, as a result of Ms Garrett’s submission, that AMACSU was not seeking help to negotiate a certified agreement. AMACSU was only seeking the Commission’s assistance to get information. That was an inappropriate use of s. 148 of the Act. The submissions (above) raise important questions about the operation of s. 148 of the Act and the Commission’s role under that section. The first, and most obvious, issue is whether there has been a “breakdown in negotiations” such that AMACSU can declare a breakdown and request the assistance of the Commission. The second issue is the nature of the assistance sought and whether it is of the type contemplated by s. 148 of the Act. Having regard to the decision I have ultimately reached about how I should deal with this matter I have found it unnecessary, at this point of time, to decide the dispute about whether there was, or was not, a breakdown in negotiations. Whilst there is a deal of evidence to suggest that AMACSU’s representative indicated that an “in- principle” agreement had been reach on 28 January 2005 [interestingly, AMACSU does not deny (at this point) that contention, merely stating that its representative was not so authorised] such evidence has not been tested and AMACSU has not had the opportunity to lead evidence in reply. Further, there is also the vexed question of determining when is an agreement reached. Is it when the parties around the negotiating table say they have reached an agreement? Is it when the Executive of the organisations concerned signify their approval? Is it when the majority of employees vote to approve its terms? Is it when the negotiating parties append their signature to their agreement? -- 2 of 3 -- 3 Clearly, on the information available, AMACSU is “not happy” with the agreement but it has not been able (in these proceedings or those related to D55 of 2005) to say what changes it requires to be made before it would be satisfied. Rather, it has addressed its attention towards the suggested discriminatory effects of the EDSD Allowance and raised its concerns about whether the agreement will be able to be certified in its current form. Indeed, when given the opportunity to address the Commission on the nature of the assistance being requested by way of its purported declaration of breakdown in negotiations pursuant to s. 148 of the Act, AMACSU could only signify that it was seeking additional information from Ergon about the rationale for the payment of the EDSD Allowance. In other words, AMACSU is asking the Commission to help it to understand the position of Ergon (or, alternatively, to help Ergon understand AMACSU’s concerns). This if far removed from asking the Commission to help the parties to make a certified agreement, as proposed in s. 148 of the Act. In all of the circumstances I have decided to take no further action on AMACSU’s request for assistance (No. B260 of 2005) because the request is not for assistance of the type contemplated in s. 148 of the Act. Even if it had been, I would still have declined to take further action on the request. Ergon made it abundantly clear during the proceedings in this matter, as well as those in D55 of 2005, that whilst it would extend every courtesy to the Commission, by attending any conference convened by the Commission, it would not be improving its current offer and would not be prepared to re-negotiate its “concluded” agreement with AMACSU. Consequently, any conference convened by the Commission would have proven to be futile. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2005 23 February (Conference) Released: 24 February 2005 Appearances: Ms J. Garrett of Slater & Gordon, for Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. Mr A. Herbert, Counsel, instructed by Mr P. Copeland of McCullough Robertson, Lawyers, for Ergon Energy Corporation Limited and Ergon Energy Pty Ltd. Mr M. Kimber, Senior Counsel, instructed by Mr J. Payne, of Hall Payne, Lawyers, for The Electrical Trades Union of Employees of Australia, Queensland Branch; Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland; and Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees. Mr L. Casey for Queensland Services, Industrial Union of Employees. Mr A. Horneman-Wren, Counsel, instructed by Ms A. Fitzpatrick of McCullough Robertson, Lawyers, for The Minister for Employment, Training and Industrial Relations. Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --