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T8874 (4 April 2000)

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70(1) appeal against a decision

Vanessa Kalamistrakis as Agent for an Employee Identified to the Commission
(T8874 of 2000)

and

David W and Carolyn L Snare

and

Australian Municipal, Administrative, Clerical and Services Union

 

FULL BENCH:
DEPUTY PRESIDENT B R JOHNSON
COMMISSIONER R J WATLING
COMMISSIONER P C SHELLEY

HOBART, 4 April 2000

Appeal - decision by President F D Westwood dated 14 February 2000 to approve an industrial agreement pursuant to Section 55 of the Industrial Relations Act 1984 in Matter T8787 - finding that at all material times there was no employer party to the agreement - finding that the Commission had no jurisdiction to deal with the agreement - appeal upheld - decision of the President revoked - file returned to Acting Registrar pursuant to Section 56(1A) of the Industrial Relations Act 1984 to revoke the registration of the agreement

REASONS FOR DECISION

By application dated 4 January 2000, the respondent union and employer in these proceedings jointly lodged with the Acting Registrar, pursuant to Section 55(2) of the Industrial Relations Act 1984, The D W & C L Snare Launceston Airport Ground Handling Agreement 1999 (the agreement). The Acting Registrar referred the file to the President who, pursuant to Section 15 of the Act, subsequently allocated the agreement to himself for purposes of conducting a hearing into the matter.

Having notified both parties of his intentions in that regard, the President heard their submissions on 12 and 14 January 2000. At the commencement of those proceedings Ms V Kalamistrakis, acting as agent for an employee identified to the President, sought and was granted leave to intervene in the proceedings.

After considering the submissions of the parties and the intervener the President, acting pursuant to Section 55(4) of the Act, approved the agreement. In doing so he had the following to say:

"I informed the parties and the intervener that I considered the agreement to be in the public interest and that I was satisfied that the wage fixing principles in respect of enterprise bargaining had been observed.

I confirm those observations and approve the agreement which is effective from 16 January 2000 and is to remain operative for a period of three years. Pursuant to section 56 the agreement is referred to the Acting Registrar for registration."

The intervener now appeals that decision, contending that:

"1. The Commission did not have jurisdiction to approve the agreement pursuant to Section 55 of the Act.

2. The Commission erred in finding that the agreement was consistent with the public interest.

3. The Commission erred in finding that the agreement was consistent with relevant wage fixing principles.

4. The Commission erred in failing to take into account a relevant consideration, namely the absence of consultation with, or a ballot of, the employees who were to be covered by the agreement.

5. Such other grounds as the Commission sees fit."

We commenced the proceedings by asking the parties to deal first with the issue of jurisdiction. Mr C J Dodds, who appeared for the Australian Municipal, Administrative, Clerical and Services Union (ASU), did not put any submissions to us on this question.

Jurisdiction

V Kalamistrakis for the appellant, an employee identified to the Commission:

The Commission did not have jurisdiction to approve the agreement pursuant to Section 55 of the Act. That section provides that "an employee organisation may enter into an industrial agreement with an employer organisation or any employer or group of employers with respect to an industrial matter".1 However, Clause 2 of the agreement describes the parties as "David W Snare and Carolyn L Snare trading as D W & C L Snare and employees who occupy classifications as set out in Clause 7 - Wage Rates". There is no employee organisation party to the agreement, as required by Section 55 of the Act.

Furthermore, Section 55(3A) of the Act obliges the Commission, at the hearing of an agreement filed with the Registrar, to "give the parties to the agreement an opportunity to be heard". At the hearing held in respect of the agreement the subject of these proceedings, the only parties given an opportunity to be heard were the employer's representative, the representative of the Australian Municipal, Administrative, Clerical and Services Union and the intervener. None of the employee parties to the agreement was given an opportunity to be heard. In the circumstances, in the absence of compliance with Section 55(3A) of the Act, there was no jurisdiction in the Commission to approve the agreement.

At the conclusion of her submissions we pointed out to Ms Kalamistrakis that, Clause 2 aside, the parties who executed the agreement were in fact, as to the employer party, D W & C L Snare for whom Mr R K Gozzi appended his signature as agent and, as to the employee organisation party, the Australian Municipal, Administrative, Clerical and Services Union for whom Mr C J Dodds appended his signature as authorised officer. We went on to suggest that, even if Clause 2 of the agreement contained an error of omission in the sense that it did not include a reference to the Australian Municipal, Administrative, Clerical and Services Union, that error might not be fatal to the agreement. That is arguably because of the provisions of Section 58(1) of the Act clearly specify to whom a registered industrial agreement "extends to and is binding on"-in particular, in the circumstances of the current matter, "the parties who execute the agreement".2

In reply, Ms Kalamistrakis partly agreed with our suggestion. Nevertheless, she contended, Section 58 only has application after an agreement is "duly registered". That could not have been so in the present case, Ms Kalamistrakis argued, because the employee parties described in Clause 2 of the agreement were not given an opportunity to be heard.

The jurisdictional ground of appeal as pressed by Ms Kalamistrakis clearly focussed on the identity of the parties to the agreement. In that regard we asked Ms Kalamistrakis to let us have her observations as to the status of D W & C L Snare as an employer of the employees engaged in the classes of employment covered by the agreement when the parties made their agreement, that is, according to the signature page, on 24 December 1999. In particular, noting from the President's decision that D W & C L Snare would not commence its Launceston Airport operations until 16 January 2000,3 we drew Ms Kalamistrakis' attention to the fact that Section 55 of the Act requires that agreements must be made in respect to an "industrial matter"-that is, in the broad, "any matter pertaining to the relations of employers and employees".4

Ms Kalamistrakis explained that, at the time the agreement was made, the persons concerned were employees of Ansett. However, she added, D W & C L Snare had won a contract (to commence when Ansett's current contract expired)5 to do the same work as Ansett was now doing at Launceston Airport. Ms Kalamistrakis said that D W & C L Snare interviewed the persons concerned while they were still Ansett employees and, upon receiving undertakings that they would work for the partnership, offered them jobs after the Ansett contract ended. Those circumstances, Ms Kalamistrakis contended, established an employer/employee relationship because D W & C L Snare asked the employees to accept or reject employment and, having accepted, "the prospective employees had an expectation that they would begin employment with D W & C L Snare".6

R K Gozzi for the respondent:

Apart from the important threshold question of jurisdiction, the remaining grounds of appeal are trivial and unsustainable. As to jurisdiction, the issue raised by the Commission is not fatal to the agreement. For all intents and purposes there was an employer/employee relationship in existence at the time the President approved the agreement, ie. on 14 January 2000. Because of the interview processes adopted by D W & C L Snare, the employees in question were very much aware at that time what their conditions of employment would be when they commenced work for the partnership at 5:15am on 17 January 2000. However, Mr Gozzi conceded, in the strictest sense the persons concerned did not become employees of D W & C L Snare until that time.

Nevertheless, even if the Commission should come to a different conclusion on that point, there were employees of a relevant kind when the agreement was made. The partnership of D W & C L Snare came into being in September 1999. From that time onward David Snare and Carolyn Snare were in fact employees of the partnership and both of them continue to this day to work under the Launceston ground handling agreement¾in particular, Mr Snare occupies the position of Customer Service Supervisor, which is an agreement classification. In the circumstances it was open to the ASU, pursuant to Section 55(1) of the Act, to make an industrial agreement with the partnership in respect of those persons as employees. The Act clearly contemplates such an agreement¾indeed, in terms of Section 58(1) D W & C L Snare and the ASU are the very parties who executed or concurred with the agreement. Consequently, upon reading Sections 55(1) and 58(1) together, there can be no doubt that in the proceedings before the President the Commission had jurisdiction to approve the agreement.

In response to a question from the Bench, Mr Gozzi conceded he had no evidence to put to the Commission in support of his contention that the individual partners of D W & C L Snare were also employees of that partnership.

Findings

On the day of the hearing we made it plain to Ms Kalamistrakis, for reasons set out above and in particular Section 58(1) of the Act, that we did not accept her contention that the omission of the Australian Municipal, Administrative, Clerical and Services Union from the description of the parties in Clause 2 of the agreement was fatal in terms of the Commission's jurisdiction. As to her contention that the President did not give the employees an opportunity to be heard we simply observe, having regard to Section 55(1) and who may be parties to an industrial agreement, that he was not bound to do so. In the circumstances, we confirm the approach we took at the hearing and consequently reject that part of the appellant's jurisdictional ground of appeal.

Regarding the issue of whether there was an employer party to the agreement at the time of its making, we concluded the proceedings¾after adjourning to consider the parties' submissions¾with the following statement:

"We are not satisfied on the submissions put to us that there was present at the relevant time, that is on 4 January 2000 when the agreement was filed with the [Acting] Registrar, ... an employer party to the agreement within the meaning of the Act or, indeed, an employer/employee relationship of the kind envisaged by the Act.

In the circumstances, we believe that the agreement, as filed with the [Acting] Registrar on 4 January, is not or was not an agreement of the kind envisaged by Section 55 of the Act. Hence, we believe there was no jurisdiction in the Commission to deal with the matter.

In the circumstances, we uphold this ground of appeal and announce our intention to revoke the President's decision approving the agreement. We will publish our reasons for decision in due course. Given our decision in this matter, we do not find it necessary to consider the remaining grounds of appeal."

We confirm our oral decision as recorded above. Accordingly, pursuant to Section 70(13) of the Act, we revoke the decision of the President in matter T8787 of 2000 to approve The D W & C L Snare Launceston Airport Ground Handling Agreement 1999 and return the file to the Acting Registrar to revoke the registration of the agreement pursuant to Section 56(1A) of the Act.

 

B R Johnson
DEPUTY PRESIDENT

Appearances
Ms V Kalamistrakis, as agent for an employee identified to the Commission.
Mr C Dodds for the Australian Municipal, Administrative, Clerical and Services Union.
Mr R K Gozzi for D W and C L Snare.

Date and Place of Hearing
2000
March 24
Hobart

1 Section 55(1).
2 Section 58(1)(a).
3 Reasons for Decision 14 February 2000, p. 3.
4 Section 3(1).
5 On and from 5:15am Monday, 17 January 2000-transcript 24/3/00, p. 8 per R K Gozzi.
6 Transcript 24/3/00, p. 5.A