Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland v Visy Board Pty Ltd [1999] QIRC 191 (1999) 162 QGIG 21

20 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETfE 10 September, 1999 JO September, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 ########tl###################################l/-####################################################################11######### QUEEJ\SLAND INDUSTRIAL RELATIONS COMMISSIO'-: lndustri-a/ RelationsAct 1999 - ss. 120 and 273 - applica lion for injunctive and oth er orders Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland AND Visy Board Pty Ltd (B1009 of 1999) COMMISSIONER EDWARDS 23 August I 999 Application for Injunctiv e and Olher Orders - Proposed Ce nified Agreement - Conciliation Conferences - Legal Representation - Jurisdiction - Wilnesses -Co mmission Not Prepared lO Make Decision on Jurisdiction - Application Re fused. REPORT ON DECISION (as edued) In giving a de cision fi:om the Bench on 5 August 1999 the Commissi on said the foll owing:- ..The Commission record s a decision in relation to the preliminary points raised in hearing of BI 009/99. The Commission will arrange for the Registrar to provide a copy of lhe transcript to lhe parlies as soon as possible. The Commission de termined that it would be more appropriate to issue a dec isio n whilst in Cairns to e nsure and e nable the panies to be aware of the mauer and the Commission's de cision as soon as possible. The de cision is as follows: - The dispute betw een the Automotive Metals Engine ering, Printing and Kindred Industries. Industrial Union of Employee s (AMEPKU) and Visy Board Pty Ltd (!he Company) first came to the attention of the Commission as Case D!OO of 1999. The Co mmissio n chaired conciliation conferences on the following dates, 11 May, 08 July and 20 July 1999. Application B1009 of 1999 was filed on 23 July 1999 by dir ection order of 27 July. The m atter was listed for he aring at 8.30 am on 30 July 1999. The Commission, as co nstituted, had chaired conciliation conferences. Accordingly, I made re ference to such and gave the opponunity lo the panie s to make submission s on the fact that the hearing had been allocated to myself b y the Chief Commissioner. The panies rai sed no objection, The Commissi on granted leave for the appearance of le gal repre sentatives on behal f of the responde m. The heari.J1g, by consent, was adjourne d until2 August 1999. The application of the AMEPKU is as follows: - ::ODMA\GRPWISE\QIRC-DOM.JRO-PO!.GENERALI :29451.1 -- 1 of 2 -- 22 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 September, 1999 r'Apply for an injunetion and order under s. 120 of the Industrial Relations Act 1999. In addition, orders were sought under s. 273 (l )(b); (l)(e); ( l )(g)(ii) of the /nduserial Relations Act 1999. The proposed mjunction and orders are detailed in schedule I, t ogether with a full statement of my claim. The respondent company is Visy Board Pty Lid, Queensland Division, 38 Cobalt Street, Carole Park, Queensland. 4300.'. The following witnesses were calle d:- Mr P. Allen and Ms H. Pa11erson. On conclusion of the preliminary submissions, the Commission agree.d that the jurisdiction al issues. as raised by the responden1. should be considered by the Commission. The hearing pro,-eeded 10 re ceive submissions on the jurisdictional matters. The affidavu of Mr P . Allen, Queensland State Manager of the Company, outline d a chro nology of events of th e arrangements for the industrial instruments since 1996 with spec ific reference to the decision of May I 996 in which the Company commenced procedures to renegotiat.o the Prau and Visy Agreements. It was the intention of the Company that the new certified agreement, insofar as it relate d to the c ompany's operations at Carole Park, be between the Company and its employees to apply 10 the Company's operations at Carole Park and be certified by the Australian lndumial Relations Commission and not th e Queensland lndusuial Relations Comm ission. He further indicate d in his evidence, by means of the affidavit, that from the minutes of the meeting dated 20 July 1999, the site comminee resolved that the new certified agreement would be certified under the Workplace Relatio11s Ace 1996 Commonwealth, and not the /!ldustria/ Relacio11s Acr /999 Quee nsland. In evidence, .\1s Pat1erson advised that during her visits 10 the Company she was not permi11ed 10 attend a meeting of the site committee . She also indicated 1ha1 Mr Allen had not advised her th at it was the Company's intention to pre ss for a Commonwe alth agreeme nt. In response to questions from Mr Humphreys relating 10 the Ac t under which she was operating, Ms Patterson advised as follows:- ., see, so you sought to exercise powers under the Federal Act, thank you. )low, has that been the position on oth er ,·isus that you made to the Company connect<ld with these procudings?' 'Yep, J've always given th em 24 hours notice'. 'Right, so on each occasion yo u sought 10 exercise rights under th e Fede ral Workplaee Re lations Act?' ·To date, yes.'. The Conurussion chaire d conferenc es under D100 of 1999, with th e relevant State legislation being the Workplace Relarionr Acr 1999. When application B 1009 of 1999 was filed, the relevant State legislation was the buluserial Relacion Act 1999. The union applied 10 the Registrar for a ce11ificate, under the Workplace Relations Ace /997 in relation 10 represent ation . The relevant sec tions of the lnduserial Relations Act 1999 are ss. 141. 142 and 143, amongst others. Section 143 (1). (2) and (3) of the Act s1a1e s:- '(l)This secuon applie$ wh�n a person (1h e ·'prop oser'') proposes to make a certified agreement: (2) The proposer must advise the following persons, in writing, of the proposer's intention to be gin negotiations for the agreement - (a) the other proposed parties 10 the agreement; and (b) for a proje ct agreement, all relevant employee organisations and the commission. (3) The proposer m ust give the persons at leas114 days before ne gotiations arc proposed to begin.' . The Commission will not insert the o ther sections of that provision into the tran script. The Commission accepts that on many occasions the unio n has, on behalf of its memhers, the employees, in this and other are as. commenced negotiations m an industrial climate in which the employer is prepar ed to negotiate with minimal reference to the relevant industnal mstruments, until a document has been negotiated to a degree that requjres consultation in relation 10 the approval process. On this occasion the company appeared to be prepared, but was reluctant, to negotiate in a detaile d way with the union without meticulous considerau on of the relevant rnstruments. In this re gard. neg otiations or submissions of items for consideration were re quired from the union, howe ver, the discussions and expressions did not appear 10 result in agenda it ems from the Company. In this regard lhe Commission expresses no views on the procedures adopted by the Company, but merely makes an observa11on. At the same time, negotiations proce-eded with employ ees with minimum cons1dera11on of the provisions of the instruments. In this regard, the rrunute s lack deta.il and legal representative.sat the Commission conferences sought leave to represent both the employers' interests and those of the employees, by means of th e committe.e . h was a conc ern th at a legally qua lified person would appear before the Commission 10 represent the interests of an e mployer and, at the same time, the negotiaung committ ee. A review of the nunutes of t he commlttee did not indicate any desire for suc h legal representation. To date, the union has not sought to invoke s. 143 of the Industrial Relations Act 1999. As previously ac knowl edged, the union did obtain a certificate under the Workplace RelationsAce 1997. At the same time , the Commission was advised, in evidence, that the representauve of t he union who atten ded th e premises of th e company did so under the provisions of the Federal le gislation. Parties 10 any industrial agreement may avail themselve s of the r elevant legislation wh ether at a federal or state level. In submission, Mr Barrett stated:- 'Now, quite honestly, employers see feder al jurisdiction as being more employer -friendly. There's no ge tting away from that and the reverse view is see n by the u.nions.' _ In view of the uncertainty and the fact that there is no formal application before the Commission which clearly indicate s the desire s of either of the parties, ii is not appropriate for the Commission to determin e under which jurisdiction the partie s should file for c ertification of any industrial instrument. At the same time, it is not for the Commission to determine, at the current lime, the tYPe of instrument which would regul ate the industrial interests of the employees and the employer, whethe r the employees are m embers of a registered union or oot. As alre ady indicated, commuoicat.ion under s.143 has not been conveyed. JO September, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE The Commission has considered all the evidence, rubmissions and the exhibits including lhe following: (a) No notification was made under s.143 by either the Company or the union; (b) Ms Patterson was relying on the provisions of the Federal Act when visiting the Company; (a) The bargaining committee made a dec ision on 20 July1999 in re gard to an instrument; (b) The Company is not bound 10 follow the views of the C ommittee; and 23 (c) There is still a capacity for b oth the union and the Compa ny to change their views as to which jurisdiction they file an application for certification, accepting that they do not adopt oth er avenues. On consideration of all factors, combined with each of the uncertainties referre d 10. the Commissi on is not prepared to make a decision on the jurisdictional maner which would be regarded as a managerial decision of either the union or the Company. Wh en a fo rmal application is made, or formal documentation is provided to the Commission, the Commission will be in a better position 10 make a deci sion on the methods being adopted by e ither partie s in the barg aining process. The applicahoo is refused. The Commission orders acco rdingly.". D:,1ed this twenty-third day of August, 1999. By the Commission, [L.S.J E. EWALD, lodustrial Registra r. Released: 2 September l 999 Appearances:- Mr J. Barreu and with him Ms H. Patterson on behalf of the Automotive, Metals. Engineering, Printing and Kindred Industries Industrial Union of Empl oyees. Queensland. Mr I. Humphreys of Blake Dawson Waldron, Solicitors on be half of Visy Board Ply Ltd. ####################1/###it################ll##ll##############lt############################################################### -- 2 of 2 --