AG819505 PR925178

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170LJ certification of agreement

(AG2002/4986)

MONCREIFF FABRICATIONS LABOUR SERVICES PTY LTD

CERTIFIED AGREEMENT 2002

[AG819505 PR924357]

Various employees

Metal industry

   

JUSTICE MUNRO

SYDNEY, 29 NOVEMBER 2002

Certification of agreement; procedure; public hearing; waiver of need for parties to attend in particular circumstances; public access to communications about obstacles to certification.

DECISION

The following decision was given ex tempore in transcript on 18 November 2002 and is now published in a slightly revised and edited form.

[1] This is matter is an application lodged on 1 November 2002 under section 170LJ of the Workplace Relations Act 1996 (the Act) for the certification of an agreement to be known as the Moncreiff Fabrications Labour Services Pty Ltd Certified Agreement 2002. Ms S. Phillips appeared for the Australian Industry Group (AiG) on behalf of Moncreiff Fabrications Labour Services Pty Ltd, (Moncreiff) with Ms K. Knowles. I received prior to the hearing a communication from Mr I. Morrison of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, (the AMWU). He sought an extension of time for the lodgment of the matter. That application is supported also by Moncreiff. I grant an extension of ten days to allow the lodgment of the application.

[2] Otherwise, in relation to the proposed agreement, I am satisfied about the content of it and conformity with the Act. I note that the provision for a dispute settlement procedure envisages that the parties shall observe the avoidance of industrial disputes procedure under subclause 3(2) of the Metal Engineering and Associated Industries Award. I shall treat that, (I hope I am consistent about these matters), as not a specific empowerment for the purposes of section 170LW. In the circumstances, it is not necessary for the Commission to approve that empowerment. Of course that does not preclude the parties themselves, in following the Metal Engineering and Associated Industries Award avoidance of disputes procedure, from referring matters to the Commission and adopting section 111AA processes. Otherwise there were no matters that I had any difficulty with in relation to that agreement. I would in the ordinary course go ahead and certify it.

[3] I make an exception today. This is the first matter that comes before me for certification under some revised procedures that are being trialled. The matter was listed for hearing today by a notice given on 8 November. On 15 November, last Friday, my Associate advised the parties, after I had considered the papers lodged, that they need not appear in this matter unless they wished to do so, provided that an application for an extension of time had been made in writing to me by the time of the hearing.

[4] The note read:

[5] Thus the process I adopted gave notification of a public hearing. The parties were later informed privately that the only barrier that I saw on the basis of the papers to the certification of the agreement lay in the lodgment out of time. That advice was recorded on the file. It followed my examination of the statutory declarations through a checklist process with the assistance of my Associate and my perusal of the agreement.

[6] The Commission's procedures for the certification of agreements have been subject to considerable discussion over the past year. The Commission itself monitors the average rate of progress of matters involving certification. That monitoring has taken place through the collection of statistics, through discussion of those statistics at panel head meetings, and through consultation with the Commission's User Group on occasions, or with the direct parties at panel level.

[7] At another level, Commission processes were at issue and discussed in various places earlier this year. Some ill-informed, poorly researched material was the subject of what I would dismiss as a beat-up by counsel assisting the Royal Commission into the Building and Construction Industry. Press coverage was generated by criticising the Australian Industrial Relations Commission's performance in not picking up several allegedly flawed or deficiently detailed applications included in bulk lodgments of applications associated with the Campaign 2000 agreement outcomes in the construction industry.

[8] Most recently a number of members of the Commission, for the most part recently appointed members, have developed approaches intended to assist electronic processing and the minimisation of attendances at formal hearings. That object of minimisation of attendances has been a common feature of discussion also at the Commission's User Group and in representations made by parties from time to time, and regularly given consideration by the Commission. As a panel head, I have been involved in aspects of each of these developments. I am receptive to modifying and streamlining determinative processes for which I am personally responsible, where practicable.

[9] In doing so, I stress that also I hold the view that the exercise of the power in section 170LT and the associated provisions is an important, albeit largely routine, function. It is important because substantive rights of employees, of employers and organisations of employees or employers can be affected or effectively set aside if the certification process is not diligently, adequately and uniformly applied through the Commission's processes.

[10] In that respect I draw attention to sections 170L and 170LA. They describe the functions of the Commission in certifying agreements. They do so in terms that import reference to the objects of the Act before going in the other Divisions of Part VIB to quite specific bases upon which wide discretions, in some circumstances mandatory discretions, are to be exercised. The structure of Part VIB is not one that encourages a view that the Commission is in any way absolved from the obligation to apply the Act with some care and some rigour.

[11] I have sufficient direct and recent experience of proposed certifications to know that it is not rare to find proposed agreements that approximate to shams or to at least a contrived platform from which it may be hoped to assault standard conditions observed by other employers actually engaged already in the relevant part of an industry. In one recent instance, after a short hearing, a matter was later withdrawn. I drew aspects of it to the attention of members of the panel as a cautionary tale. The agreement proposed for certification was made with two casual employees to cover prospective contracts nationwide. It could arguably have been conceived as an attempted form of "greenfields agreement", under section 170LK, not section 170LL, about casualisation of some apparent "brownfields" work or activities in employment1. Other instances come readily to mind. One involved the negotiation of a section 170LK agreement with what apparently transpired to be a group of labour hire employees none of whom was currently engaged in the target workplace. That matter was associated with the curiosity generating circumstance of the relevant application having been lodged for certification outside of the State in which the proposed agreement was to apply2. That matter also was withdrawn after its existence and content came under notice.

[12] Apart from the questions that arise about the proper application of section 170LT to some such agreements, downstream disputation and litigious conflict could result from certification. I have selected those matters from a number of instances that come to mind. They illustrate practices that are of significance, which need to be examined, and which are likely to escape superficial scrutiny.

[13] Failure to detect sham, or unduly disadvantageous agreements is not in my view a trivial matter. Demands for expedient process should not obscure risks that exist or arise from such practices.

[14] It is against that background that consideration has been and is being given to the way in which the Commission processes matters that come before it. The Commission has under examination processes for electronic lodgment. I have been part of that examination at panel level. I have recently given support to a trial within the Metals Panel in Sydney of a process whereby the hearing is notified as listed "For hearing in Chambers". That form of notice is intended to obviate the need for the direct parties to an agreement to attend. It is intended also to permit any person who may seek to intervene in the matter an opportunity to notify the relevant member in Chambers that the person has an interest. In such circumstances, the matter will then to be stood over to a later date for a public hearing.

[15] In this instance, I have departed from that approach. The purpose of this decision is to indicate that I will not be adopting the "Chambers hearing" procedure myself. I will use a variant of it to ensure that there is on the public record, and at least in the Law List published in the daily press, a public hearing. The process will be conducted, so far as I am concerned, at a public hearing with a record on transcript. Not in every instance will that transcript be reduced to writing; proceedings are recorded but transcript will not be ordered unless there is need for it.

[16] Effectively my reasons for adopting the variation come down to two. The first concerns my desire to avoid any erosion of the association of Commission processes with forms of open public hearing. Although a hearing notionally in Chambers might be said to be a continuation of a public hearing process, there is I think in the mind of practitioners, as well as in the mind of the public, a difference. Effectively I seek that the hearings of certifications of agreements before me, ostensibly, will be of uniform character so far as someone looking at a Law List or aware of the matter coming on is concerned.

[17] What such a person may find at the hearing is that, if the parties have been freed from the obligation to attend, all that will occur is that I, constituting the Commission, will explain whatever I may have put to the parties that permitted that situation to come about. I shall adopt that procedure as my practice where the parties are known; where there is nothing on the face of the agreement to require much further inquiry by me beyond what has already been addressed; and where there is a relatively high level of confidence on my part that the matter can be certified without the need for the attendance for the parties.

[18] That approach appears to me to maximise adherence to the concepts of accountability that are embodied in the open hearing requirement. It is not necessary to elaborate at length on an explanation of the sources that influence me. However I shall make a brief reference to them.

[19] In a recent publication, The Australian Judiciary3, Professors Enid Campbell and H.P. Lee, the joint authors of the publication, devoted a chapter to the accountability of Judges and the function of the concept of open hearings. They note that the general rule of common law is that proceedings in a Court of justice must be conducted in open Court. It is claimed that such a rule, described as "inveterate" and "immutable", has existed in England "for some centuries".

[20] Of course, and without quoting from the authors, the processes of this Commission are not judicial processes. It is equally clear that the processes are quasi judicial. The Commission's function has long been associated with the recognition that our process is akin to a judicial process. The authors note that McHugh J has referred to the implication of open justice as an essential feature of the Federal judicial power. According to Gaudron J, open and public inquiry is an aspect of the judicial process. Such procedures have long been an aspect of the Commission's processes. I have not researched its statutory provenance but I assume it is at least a legacy of the Commission's antecedent, the Court of Conciliation and Arbitration4.

[21] At page 220 of the publication to which I have referred the authors continue, and this I quote:

[22] It is those considerations, and others that are developed by Campbell and Lee in reference to open Court, exceptions to the general rule, and mechanisms to protect confidentiality, that have influenced me against adopting an in-Chambers process instead of modifying the public hearing process.

[23] In that context I refer also to a second limb of the desirability. That is the relative publicity about or access attaching to Commission records. In that respect, again without developing the point at great length, I refer to the Guidelines for Policy Development by State Courts: Policy Framework submitted for consideration by the Conference of Chief Justices and the Conference of State Court Administrators at an Annual Conference in Rockport, Maine. The Guidelines were prepared by the Joint Court Management Committee of the Conferences of Chief Justices and the Conference of State Court Administrators for the United States. A copy of the paper was delivered to the recent Australian Institute of Judicial Administration Conference on Technology and Justice5.

[24] Effectively this was a project for developing a model written policy governing access to Court records. For practical purposes, this Commission faces, with electronic lodgment and with informal processes about certification of agreements, a dilemma. One aspect of it is whether communications between Associates and the Commission with parties pre-hearing should be accessible to other interested person at the time of such communications. If such communications are made on the internet, should it be open to a person interested in the outcome, but not necessarily a party, to trawl the net to see the inquiries directed from the Commission to parties? Such inquiries may open grounds or suggestions as to why perhaps a certified agreement should not be certified. Matters of the kind to which I alluded at [10] and [11] are cases in point.

[25] Concerns about issues of relative confidentiality prior to the hearing of a matter have exercised the minds of members of this Commission. The Guidelines proposed in the context of United States administration of justice and electronic lodgment might also have some bearing on the way in which these questions might be answered or at least approached.

[26] The Guidelines proposed are based upon five premises:

· to retain the policy that court records are presumptively open to public access, that is, all records;

· as a general rule access should not change depending on whether the court record is in paper or electronic form, whether there should be access should be the same regardless of the form of record although the manner of access may vary.

· the nature of certain information in some court records, (or Commission records), is such that remote public access to the information in electronic form may be inappropriate even though public access at the court house, (or Commission premises), is maintained;

· the nature of information in some records is such that all public access to the information should be precluded unless authorised by a judge; and,

· access policy should be clear, consistently applied and not subject to interpretation by individual court or clerk personnel.

[27] The analysis underlying the consideration of privacy in those Guidelines is associated with a notion that is explained in the paper. It refers to an observation of the United States Supreme Court in a 1989 decision, United States Department of Justice v Reporters Committee for Freedom of the Press6. The Court referred to the relative difficulty of gathering paper files as resulting in the "practical obscurity" of the data incorporated in the record. In other words, the court was referring to the fact that, under a traditional system of access at a court registry to search a file, in practice, a rule of practical obscurity operates. Only a party who attends will get the information resource that is there.

[28] In our system, aggregates of Commission records may soon be converted into an electronic database. Such a database may be searched efficiently and expeditiously by anyone who gains access. Once that happens, and it has already to a significant degree for some records, the rule of practical obscurity is set aside. A much more extensive information base is available. It will be much more intrusive to individual employees, and to employers, than is the case where the information is shielded by the need for a researcher to turn up and physically search a Commission record.

[29] That question is one with which the Commission is grappling. It is also a question which underlies the dilemma that I have postulated about whether the pre-hearing material that passes between the Commission and a party should be available to be searched prior to the hearing. My view - and it is expressed in this decision - is that there can be no objection at the hearing to such information being available. There is no risk caused by making that information available at the hearing. There may be some risk if it is properly made available prior to the hearing. Access of that kind may attract objectors to a certification being made, or other interested scrutiny.

[30] Those are my reasons for tempering the expedience of a party-less hearing. I shall do so by incorporating an on-record determination in public. I hope I have not unduly taxed the goodwill of Moncreiff in explaining what I am doing. I have delivered this statement in relation to the first matter that came on. It happens to be Moncreiff's.

[31] In relation to the precise process that applies to the certification of this agreement I have noted that it is a section 170LJ matter. I have also noted that pursuant to the application made by Ms Phillips, who appeared through the AiG for Moncreiff with Ms  Knowles, that I will grant an extension of time. That application for extension of time was supported by a letter in writing dated 15 November from the AMWU seeking the same extension and supporting the certification of the agreement.

[32] Apart from that question, I am satisfied that the relevant requirement of the Act and Rules have been met. That satisfaction is founded upon the scrutiny of the statutory declarations, the outcome of which is recorded in a checklist compiled by my Associate and completed and signed by me following my perusal of the proposed agreement. That checklist is retained as part of the file and is a component of my decision in this matter.

[33] I have also noted the view I have adopted about the question of empowerment under section 170LW of the Act. I do not consider in the circumstances of this matter that it is necessary to approve such an empowerment having regard to the general nature of the dispute settling procedure in the agreement.

[34] In accordance with the section 170LT of the Act, I certify the agreement between Moncreiff and the AMWU. The agreement is certified as AG819505 in Print PR924357. It shall come into force from 18 November 2002 and shall remain in force until 18 November 2005.

BY THE COMMISSION:

JUSTICE P.R. MUNRO

Appearances:

S. Phillips for the Australian Industry Group on behalf of Moncreiff Fabrications Labour Services Pty Ltd with K. Knowles.

Hearing details:

2002.

Sydney:

November 18.

Printed by authority of the Commonwealth Government Printer

1 AG2002/4973.

2 An instance may be an application AG2002/5635 listed on 20 November 2002 in Queensland before Hodder C, but withdrawn at the listed hearing. Other proceedings about related issues being heard before the New South Wales Industrial Commission were the subject of a part heard application under section 128A before a Full Bench of the Australian Industrial Relations Commission, also withdrawn: C2002/2278.

3 Enid Campbell and H.P. Lee: The Australian Judiciary¸ Cambridge University Press.

4 In the Act, there is no explicit provision for a public hearing although the implication of such a duty is carried in the retention from antecedent legislation of the Commission's duty to "hear and determine" industrial disputes. That obligation is variously expressed but is reflected in subsection 110(2). That subsection, read with paragraph 111(1)(k) and sections 98 and 98A generally gives individual members of the Commission a wide discretion to determine the best way to conduct proceedings in a fair and practical manner. Generally, it seems that the principle stated about paragraph 41(1)(g) of the Conciliation and Arbitration Act 1904 has been applied to require proceedings to be conducted in public unless some unnecessary harm can be avoided by a private hearing: Re Qantas EA Ltd v AAPA (1954) 80 CAR 108 at 111 in relation to the then Court.

5 www.aija.org.au/tech3.htm.

6 489 U.S. 749 (109 S.Ct. 1468, 103 L.Ed.2d 774).