Amcor Limited t/a Amcor Cartonboard v Automotive, Metals, Engineering, Printing and Kindred Industries; Industrial Union of Employees , Queensland v The Australian Workers’ Union of Employees, Queensland [2004] QIRC 12 (2004) 175 QGIG 448

448 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 February, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – Chapter 6 Part 1 – certified agreements Amcor Limited t/a Amcor Cartonboard AND Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees , Queensland AND The Australian Workers’ Union of Employees, Queensland AMCOR CARTONBOARD CERTIFIED AGREEMENT 2003 (No. CA879 of 2003) COMMISSIONER ASBURY 28 January 2004 DECISION Industrial Relations Act 1999 – s. Chapter 6 Part 1 application for certification of agreement – Agreement between employer and one or more organisations of employees – Refusal of organisation of employees to sign agreement after ballot for approval – Requirements for making agreement – Refusal by organisation of employees to sign agreement when requirements otherwise met no barrier to certification – Point at which agreement made – Rights of parties to agreements to seek certification – Reasonable opportunity to be a party to agreement was given to organisation of employees refusing to sign agreement – Amendment to agreement prior to certification – Considerations in waiving requirements for steps in ss. 144(2) and (3) to be taken again after amendment – Amendment to delete reference to organisation of employees refusing to sign agreement was for a formal or clerical reason and did not adversely affect a relevant employee’s interests – Agreement certified – Reference to organisation refusing to sign agreement deleted – Undertaking required in relation to rights of deleted organisation. Overview This is an application for the certification of an agreement entitled the Amcor Cartonboard Certified Agreement 2003 (the Agreement) under Chapter 6, Part 1 of the Industrial Relations Act 1999 (the Act). The application filed with the Industrial Registrar on 12 December 2003, states that the Agreement is made by Amcor Ltd trading as Amcor Cartonboard (ACN 004 275 165) (Amcor); the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU); The Australian Workers’ Union of Employees, Queensland (AWU); and The Electrical Trades Union of Employees of Australia, Queensland Branch (ETU). An application in the required form (Form 40) has been signed on behalf of Amcor, the AMEPKU and the AWU. The same parties have also signed the Agreement which was appended to the application as Attachment A. Neither the application nor the Agreement appended to it has been signed on behalf of the ETU. A hearing into the application was held on 8 January 2004. According to the Commission’s file, the date and time of the hearing were notified to all parties who had signed the Agreement and the ETU on 17 December 2003. At the hearing on 8 January 2004, appearances were entered on behalf of Amcor, the AMEPKU and the AWU. No appearance was entered on behalf of the ETU. Mr Power of the Australian Industry Group, Industrial Organisation of Employers, Queensland, on behalf of Amcor submitted that the Agreement met the requirements of the Act for certification. It was further submitted by Mr Power that the Agreement should be amended by deleting the reference to the ETU in clause 1.4. That clause provides as follows: “1.4 Persons Bound The persons (sic) to this agreement are: a. Amcor Cartonboard in respect of its operations at Petrie and its associated recycling depots. b. All employees of Amcor Cartonboard in respect of its operations at Petrie and associated recycling depots whose terms and conditions of employment are regulated by Amcor Carton Board Certified Agreement 2000 whether members of the organisations of employees listed in subclause (c) hereof or not. c. The organisations that represent the employees in (b), namely: i. Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland; ii. Australian Workers’ Union of Employees, Queensland; iii. Electrical Trades Union of Employees of Australia, Queensland Branch.”. The AMEPKU and the AWU sought certification of the Agreement and generally supported the submissions for Amcor. Leaving aside the issue of the status of the ETU and the amendment sought to clause 1.4 of the Agreement, I am otherwise satisfied that the Agreement meets all of the requirements of the Act for certification. An affidavit executed by Geoff Goble, the General Manager of Amcor was filed with the application. That affidavit addresses each of the matters required by Regulation 9 of the Industrial Relations Regulation 2000 and the requirements of s. 156 of the Act. After reading the application, the affidavit of Mr Goble and the Agreement, I am satisfied that those requirements have been met, with the exception of issues relevant to the status of the ETU. Further there is nothing to indicate that there are grounds under s. 157 of the Act for the Commission to refuse to certify the Agreement. -- 1 of 4 -- 6 February, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 449 Legislative Requirements for Certification of Agreements Relevant in this Case There is no requirement (subject to the provisions s. 156(j) of the Act) that all of the organisations who represent or are entitled to represent employees are parties to an agreement. The minimum requirements of s. 142 with respect to an agreement other than one made directly with employees, is that the Agreement is made with one employee organisation which represents or is entitled to represent any employees who are or are eligible to become or be members. It is axiomatic that the employees referred to in s. 142 are those who are proposed to be bound by the Agreement. As long as this minimum requirement is met, and subject to meeting the requirements of s. 143 and s. 156(j), it is no barrier to certification that one or more organisations who represent or are entitled to represent employees are not party to the Agreement. Further, where the requirements for certification are met and an agreement is certified, it will bind employees who are members or are eligible to be members of an organisation that is not party to the Agreement. The preamble to s. 156 of the Act requires the Commission to certify an agreement if it is satisfied as to the matters set out in the section and states that the Commission must not certify an agreement unless it is satisfied in relation to those matters. The preamble to s. 157 requires the Commission to refuse to certify an agreement if it considers that any of the provisions set out in that section apply to it. In deciding whether to certify an agreement, the Commission can require no more and accept no less than the matters set out in s. 156 and s. 157. Those sections create a mandatory duty on the Commission to certify or not to certify according to the terms and conditions set down therein. Clearly an agreement can only be binding on parties who made it. Section 166(1)(a)(ii) and s. 166(c) read in conjunction, provide that a certified agreement binds the employer and the one or more employee organisations who made it. An agreement is not made at the point it is certified. This is apparent from the fact that the Act refers to an agreement as being such prior to certification. As Munro J observed in Re Wideline Pty Ltd Enterprise Agreement 2002 (PR 918909) s. 170LJ of the Workplace Relations Act 1996 (Cth) dealing with agreements between employers and organisations of employees makes it clear that such agreements are made between the employer and the organisation(s) concerned. This was contrasted by Munro J with agreements under s. 170LK made between the employer and employees, which are made at the point of approval by a valid majority of employees and are proposed agreements up until that approval. The Industrial Relations Act 1999 makes reference to a “proposed agreement” in s. 151 which deals with amendments and to “an agreement proposed” – see for example s. 142 and s. 143. The distinction between a proposed agreement and an agreement proposed may be one of semantics. In any event, I am of the view that an agreement between an employer and one or more organisations of employees is made at the point those organisations agree to its terms and that point may be before or after a valid majority of employees approves the terms of the Agreement. Agreement may be evidenced by an authorised officer of the Union signing the Agreement or the Union otherwise advising the employer party that agreement has been reached either orally or in writing. The point at which an agreement may be said to have been made by also be dependent of the rules of the organisation of employees concerned as to the authority of particular officers to make agreement on behalf of the organisation. The fact that s. 156(g) requires that an agreement must not be certified unless a valid majority of employees have approved its terms, does not mean that an agreement between an employer and organisation(s) of employees is necessarily made at the point such approval is given. In the event that one or more employee organisations decide at some point during the negotiation process that they do not wish to be party to an agreement, the Agreement may nonetheless be made with at least one other organisation that does wish to be a party, provided that organisation represents or is entitled to represent any employees who are or are eligible to be members. Where such an agreement is certified it will be binding on all relevant employees, including those who are members or eligible to be members of an organisation of employees that declined to be a party to the Agreement. Where no organisation agrees there is no agreement, although in such a case the employer party could seek to make an agreement directly with employees. Where an agreement is made between an employer and one or more organisations of employees, as between those parties, procedural duties and obligations arise and they are entitled to seek certification of that agreement. Those duties and obligations arise as between the parties who have agreed, regardless of whether one or more parties to whom a proposal was made under s. 143(2)(a) have not agreed. When faced with such an application, the Commission is required to consider whether the Agreement can be certified in the context of the specific requirements of the Act pertaining to certification of agreements set out in s. 156 and s. 157. For the reasons set out above, provided those requirements are met and/or not infringed, the Commission must certify the Agreement. The requirements include those in s. 156(1)(j) that for an agreement to be made with an employee organisation, other than an agreement for a new business, each employee organisation bound by the Award or Industrial Agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act, is a party to the Agreement. There is an exception to this requirement in s. 156(2) which provides that s. 156(1)(j) does not apply if the Commission is satisfied that an employee organisation has been given the opportunity to be party to the Agreement but does not want to be a party, or has no members who are to be bound. At s. 151(1) there is a general requirement that where a proposed agreement is amended for any reason, the steps in s. 144(2) and (3) must be taken again. This requirement applies to amendments during the negotiations for an agreement as well as those sought at a hearing into certification by the parties to it. Some flexibility is provided by s. 151(3) which gives the Commission discretion to determine that the steps need not be taken again if the Commission is satisfied that the proposed Agreement was amended only: (a) for a formal or clerical reason; (b) in another way that does not adversely affect a relevant employee’s interests. Issues for Determination The issues for determination in this case are: • whether the requirements of s. 156(1)(j) as modified by s. 156(2) have been met with respect to the ETU; and • whether the Agreement can be amended to delete reference to the ETU as a party, in the manner sought by Amcor. Sections 156(1)(j) and 156(2) At paragraph 6, the affidavit of Mr Goble states that the relevant Award is the Engineering Award – State. I infer that the Award binding on the employer is the Engineering Award – State 2002. The ETU is bound by the Engineering Award – State 2002 and is not party to the Agreement. The affidavit of Mr Goble does not specifically address the provisions of s. 156(1)(j) or s. 156(2). However, Mr Goble does depose to matters going to other provisions of s. 156 of the Act which are also relevant to considering whether the Commission can be satisfied that the exception in s. 156(2) applies in this case. In this regard I have given consideration to the following material in the affidavit of Mr Goble. The affidavit states that as required by s. 143 of the Act Amcor as proposer of the Agreement notified the other proposed parties in writing of the intention to begin negotiations for the Agreement and that this advice was provided at least 14 days before negotiations commenced (Refer paragraph 17). I infer from the affidavit that each of the AMEPKU, the AWU and the ETU were so notified. It is stated in paragraph 13 of the affidavit that the Agreement was negotiated by: -- 2 of 4 -- 450 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 February, 2004 • Mr Geoff Goble, the General Manager of Amcor; • Mr Rohan Webb, State Organiser AMEPKU; • Mr Bryan Lyndon, Organiser AWU; and • Mr Jason Young, State Organiser ETU. The affidavit also outlines at paragraph 17 that an on-site consultative committee decided to start negotiations for the Agreement in March. Union representatives on site contacted Union organisers. Unions placed a single log of claims on Amcor in April and the company responded to that log in May. Thereafter, regular meetings were held every two weeks. Paragraph 18 of the affidavit details the consultative processes followed with employees generally and the involvement of union organisers in that process. The Agreement contains a reference to the ETU being bound and a signature block for the ETU. There is material on the Commission’s file to establish that the ETU was notified of the hearing into the certification of the Agreement. Further, a notice detailing the names of the parties to the Agreement; the relevant or designated award and the hearing date was placed in the Registry as required by s. 154 of the Act. The ETU did not attend the hearing or give any indication in writing or otherwise that it contended that any of the requirements for certification were not met or that it wanted to be heard on the application. Proposed Amendment to the Agreement If the amendment proposed by Amcor is approved, the result will be the certification of an agreement which is different to the Agreement voted on and approved by employees. If the deletion of the ETU as a party does not come within the exceptions in clause 151(3) the parties seeking certification will be required to take the steps in s. 144(2) and (3) again including conducting another ballot to ascertain whether employees approve the amended agreement. To assist the Commission in determining whether the amendment sought was within the exceptions in s. 151(3), a supplementary affidavit was requested. In a supplementary affidavit executed on 20 January 2004, Mr Goble deposed that a search of company records indicated that at 19 August 2003 when a valid majority of employees voted for the Agreement, a total of 253 employees were members or eligible to be members of the relevant unions as follows: • AWU – 202 employees; • AMEPKU – 35 employees; • ETU – 16 employees. Mr Goble also deposed to the fact that 196 employees participated in the ballot, and the result was 150 votes in favour of the Agreement and 46 votes against the Agreement. Further, each of Amcor, the AMEPKU and the AWU in response to a request from the Commission indicated that they would be prepared to provide an undertaking to the effect that the ETU would be afforded rights on the same basis as those which would apply if the ETU was a party to the Agreement, so that the ETU could represent members or persons eligible to be members in relation to a matter covered by the Agreement. The undertaking also provided that the status of the ETU as a non-party to the Agreement would not be used by any of the parties to the Agreement to impede the capacity of the ETU to represent its members or persons eligible to be members under the Agreement. Conclusions On balance, I am reasonably satisfied that the requirements of s. 156(1)(j) as modified by s. 156(2) have been met. Overall the material in Mr Goble’s affidavit, combined with the fact that the ETU did not attend the hearing into certification or otherwise indicate that the exception to s. 156(1)(j) did not apply, is sufficient for me to be reasonably satisfied that the ETU was given a reasonable opportunity to be a party to the Agreement and did not want to be a party. In the circumstances of this case, on the material currently before me, I am also of the view that the amendment sought by Amcor to delete the ETU from clause 1.4 of the Agreement, is for a formal or technical reason. I have reached this view on the basis that even if reference to the ETU was not deleted from the Agreement, the Agreement could not as a matter of law, be binding on the ETU. The deletion of the ETU in the context of this case simply ensures that the Agreement accurately reflects the legal position with respect to parties to the Agreement and persons bound by it: see for example Stork ICM Australia Pty Ltd (Clyde Refinery) Certified Agreement 1999/2001 Print S3474 per Munro J. All employees described in clause 1.4(b) of the Agreement are bound by it whether members of a union or not including those who are members of or eligible to be members of the ETU. I have also reached the view that the amendment to delete the ETU as a party to the Agreement is formal or technical on the basis of the supplementary affidavit of Mr Goble deposed on 20 January 2004. The material in that affidavit in my view establishes that it was more probable than not that even if the ETU was not included as a party in the Agreement voted on by employees, the outcome of the ballot would not have been any different. In this regard, if the assumption is made that all ETU members or persons eligible to be ETU members voted for the Agreement on the basis of their belief that the ETU was a party to the Agreement because of its inclusion in clause 1.4, the outcome of the ballot would not have been any different if all of those persons, 16 in total, voted against the Agreement. In my experience the ETU is well able to articulate its opposition to matters to its members in particular workplaces and to other unions. Notwithstanding the opposition of the ETU a valid majority of employees approved the terms of the Agreement. I am also satisfied that in light of the undertaking I have required from the parties to the Agreement as to the rights of the ETU to represent its members and persons eligible to be members under the Agreement, the deletion of the ETU as a party to the Agreement does not adversely affect a relevant employee’s interests. Accordingly, I can see no basis in the circumstances of this case for requiring the parties to the Agreement to go to the time and expense of resubmitting the Agreement for approval and conducting a second ballot, and I am satisfied that both of the exceptions in s. 151(3) apply. I can also see no basis for denying the parties who are in agreement and the majority of employees who have approved the Agreement their rights to have the Agreement certified. Further, I am of the view that the ETU has not been denied natural justice or a right to be heard on the application for certification of the Agreement in this case or in relation to the additional affidavit material which was considered by the Commission. The ETU had reasonable opportunity to participate in the hearing into certification and did not do so. Leave is granted to the parties to amend the application by deleting reference to the ETU from the application for certification and from clause 1.4 of the Agreement. To the extent that it is required I extend the time in which the Agreement was required to be filed as provided in s. 153. I certify the Agreement in terms of the amended application and will issue a certificate to that effect. The certificate will contain the undertakings made by the parties in relation to the rights of the ETU. I Order accordingly. -- 3 of 4 -- 6 February, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 451 I. C. ASBURY, Commissioner. Hearing Details 2004 8 January Appearances: Mr G. Power of Australian Industry Group, Industrial Organisation of Employers (Queensland) on behalf of Amcor. Ms K. Allen for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Ms T. Krarup for The Australian Workers’ Union of Employees, Queensland. -- 4 of 4 --