PN1

THE COMMISSIONER: Good afternoon. Ms Sowden, you are appearing this afternoon with Ms Gilroy; is that right?

PN2

MS L SOWDEN: Yes, that's correct, Commissioner. Do you require some submissions regarding representation?

PN3

THE COMMISSIONER: Are you an employee of the organisation?

PN4

MS SOWDEN: No, I am not, Commissioner.

PN5

THE COMMISSIONER: You are from an external law firm?

PN6

MS SOWDEN: Yes, I am.

PN7

THE COMMISSIONER: Yes, I will hear you on permission to appear.

PN8

MS SOWDEN: Thank you, Commissioner. Having regard to there are some complicated matters in terms of the way that enterprise agreement time frames and certainly the provisions under the legislation for approval, nonetheless, in the current situation that we have with some procedural deficiencies, we would submit that there's a level of complexity that would mean that the applicant would be assisted by legal representation.

PN9

There may be an issue with effectiveness, although, of course, Ms Gilroy is here today and obviously ready to represent Flick Anticimex without consult, and in terms of fairness, we submit that, you know, as there's no dispute proceedings (indistinct) one party, really there's no unfairness issues in the matter.

PN10

THE COMMISSIONER: Yes, sure. Look, having regard to that, I am satisfied it is appropriate to grant permission to appear. There is some level of complexity in this matter. What firm are you from, Ms Sowden?

PN11

MS SOWDEN: I'm from Mills Oakley Lawyers.

PN12

THE COMMISSIONER: Mills Oakley, yes, thanks. Look, you have seen the correspondence between my chambers and the applicant, your client. There were a number of concerns raised about the agreement. There's no need to traverse those, other than the section 180(3) point, because satisfaction was reached on those matters either by way of undertaking, or undertakings and submissions.

PN13

We are just left with the section 180(3) point, and I have received a couple of written submissions on the point, the point being that it would seem to be not in dispute that, rather than seven clear days before the start of the access period, which is the requirement in terms of the notice of the vote being given, the notice of the vote was given the day before the vote commenced, and that doesn't seem to be in contention. The issue is whether or not - and therefore, section 180(3) hasn't been complied with.

PN14

Prior to the establishment, or the enactment, rather, of section 188(2), that would have been the end of the matter. The question is whether or not it is appropriate to exercise the discretion under section 188(2) and whether it falls within that category, and that is essentially the issue to be dealt with this afternoon from my perspective, unless there's anything else you wanted to raise.

PN15

I have taken into account the submissions that have been filed by Ms Gilroy, including the one that was sent in this afternoon. I will just make some comments about that in a minute, but this is the opportunity if there is anything else that you wanted to say about that matter.

PN16

MS SOWDEN: Thank you, Commissioner. No, look, I think, at this point, the written submissions provided earlier, and now, obviously, a further email by way of submissions today, we consider that traverses the most relevant factors, pending whatever it is that you may have by way of commentary on that.

PN17

THE COMMISSIONER: Yes.

PN18

MS SOWDEN: I guess the (indistinct) factors from our perspective are that we accept that there was an oversight in terms of the timing, and that is regrettable and, obviously, we are apologetic about that. However, as you can see, we maintain that the extended voting period - which, you know, a 14-day period is quite extensive - did provide really almost excessive opportunity for voting, if I can use that sort of florid language, and so we say that that really does mitigate any of the deficiencies in terms of the timing, and that means that there is genuine agreement because there was more than adequate opportunity for voting, and that's really what the focus - and obviously providing the seven clear days is to ensure that people have sufficient notice of location for voting, et cetera.

PN19

So, we maintain that the extended voting period overcomes that potential, you know, disadvantage that employees may have been at by virtue of the deficiency in the time frames.

PN20

THE COMMISSIONER: Just a couple of queries. First, just going to the 29 June letter, just so that we are clear, it indicates:

PN21

We understand that Commissioner Lee -

PN22

and I should say Ms Gilroy is clearly referring to a conversation with my associate where, no doubt, my associate was providing some indication about what today would be about.

PN23

MS SOWDEN: Yes.

PN24

THE COMMISSIONER: Which is fine. What is said is - and it seems that Ms Gilroy has taken away an understanding that I 'took exception to the wording in our submissions referring to the procedural deficiency as "minor."' Just to be clear, I don't take exception really to anything unless someone is saying something to nasty to me and I'll take exception to that.

PN25

I think, just to be clear, and I think what my associate may well have been trying to get across was that the key issue is whether this is a minor error and, in respect of section 188(2), the wording of the statute is clear and the Huntsman decision, which I sent to you earlier, also makes clear it has to be both a minor error and the disadvantage point.

PN26

On the minor error, you know, what is minor, Huntsman deals with that. It's not clear-cut and by no means is Huntsman - do I see it as a set of rules about how one applies section 188(2). 188(2) must be applied on its terms. But, you know, if you look at the examples that are provided in Huntsman, there's one where - and this was, you know, against the background of when this provision was enacted - there was numerous applications for a ground that's been thrown out because people hadn't provided seven clear days as opposed to seven days, so technically they had only provided six days' notice of the vote.

PN27

The Full Bench sort of canvasses those kinds of notions and clearly indicates that that's likely to be a minor error. That's consistent with what's in the revised Explanatory Memorandum, which talks about instead of providing the seven clear days, that there's still notice early on in the access period, but not later on in the access period, relevantly for you, and there's another example given in the Huntsman case - again it's not a rule but provides, unless you tell me otherwise, some indication about the limits of 188(2) - where it says - there was another example of four days' notice is given of the vote, but every single person voted and, well, you know, that case, even though that might be at the more significant end, you know, prima facie, in all the circumstances.

PN28

The difficulty I have got here, to be frank, is that the factual matrix around this situation is nowhere near any of those examples. You were at the very end of the access period and, on my maths, 43 per cent voted.

PN29

MS SOWDEN: Yes. Look, I haven't done the maths on the figures. You can see now from our most recent email, I mean we are alive to a concern about the level of voter participation, so you can see that. Then, unfortunately, there were, I think, some issues in terms of potential attempts to pressure employees from external forces from the applicant, the employer - - -

PN30

THE COMMISSIONER: Yes, well, I am not going to take evidence from the Bar table.

PN31

MS SOWDEN: No, and there is no evidence about that.

PN32

THE COMMISSIONER: No. So, there was union bargaining reps involved, was there?

PN33

MS SOWDEN: No, there were not. This is the great irony of where we sit. Union representatives were advised early on of the commencement of bargaining, or the proposal to commence bargaining, the commencement of bargaining, and they received the notice, and then there was no participation. So, there wasn't actually any bargaining by the union during the bargaining for an enterprise agreement and they had no involvement. There was notification to them but no involvement by them.

PN34

THE COMMISSIONER: Okay.

PN35

MS SOWDEN: And then, for whatever reason, when voting occurs, there was some - it appears to Flick that there was some pressure brought to bear on employees to try and discourage them from voting or approving the agreement, and it considers that that has had an impact on the level of voting.

PN36

Having said that, I think something else that is significant when you have a look at those examples that you gave in terms of the timing, and obviously we recognise we are at the end of that period.

PN37

THE COMMISSIONER: Yes.

PN38

MS SOWDEN: And I guess you are concerned more at the pointy end of it being a deficiency. I think it's relevant that for this workplace, or these workplaces, the voting was set up at various branches, so people are at different locations.

PN39

THE COMMISSIONER: Yes.

PN40

MS SOWDEN: So the voting was set up at the physical location where they were based, so they would return there, you know, periodically during their work. When they are out and about, essentially driving around, they come back to the branch and they are able to vote at that branch that they have as their home branch. So, the voting, in terms of convenience, I think the convenience is quite high.

PN41

It's not that people were required to come to head office or that they were required to even like log into a particular portal in their own time, or whatever, and vote. It was at their workplace that was local to them, that they were based in, and it was available for that 14-day period, and so we maintain that that does provide a very high level, and really much better than most enterprise agreement processes, access for voting.

PN42

Obviously, the level of participation, yes, we accept that is low, but we would say that is not due to any sort of procedural deficiency, it seems to be a combination - - -

PN43

THE COMMISSIONER: Well, you just don't know. Look, Ms Sowden, with respect, the statute set up - can we at least agree on this - they set up a mandatory time frame, which the parliament has seen fit to say, 'Well, that's what we say, and if you comply with that, well then, the Commission can be satisfied that genuine agreement is reached.' And, given the inflexibility of it, we then had a situation where agreements were not being approved where there were minor departures from that that, you know, was leading to absurd results, particularly in respect of notices of employee representational rights with a letterhead on them and so on, causing whole agreements to be thrown out. It was a ridiculous environment, frankly.

PN44

Section 188(2) provided a sensible recourse for that, but it has limits, and, look, the difficulty I have got is I just can't see - - -

PN45

MS SOWDEN: Perhaps, Commissioner, if I can attempt to (indistinct) you?

PN46

THE COMMISSIONER: Yes.

PN47

MS SOWDEN: From Flick's perspective, it is also relevant that it is, from our end, fairly in the vein of a rollover agreement, so there weren't substantial changes to the written terms, and really the changes that we are focused on is certainly wage increases, which, as you might appreciate in the current market, is quite a live issue for an employee and employer alike.

PN48

THE COMMISSIONER: Yes.

PN49

MS SOWDEN: There is quite an attractiveness, obviously, to employees, but I think, having regard to the fact that it is essentially a rollover agreement and there weren't substantial changes and the fact that, you know, there was only one representative actually appointed, the level of active engagement from employees in those circumstances is often lower because there's nothing that they are sort of, I guess, concerned about in terms of the content.

PN50

So, we would say, you know, I think it's open to imply that that is a factor in terms of the level of voting, and I don't know that, having regard to the length of the voting period, that any change to the access period or any improvement to our access period and the notification being clear days beforehand would have made any difference. I think a 14-day voting period makes it very clear that that's probably the absolute best voting return that we could get in terms of participation because it is a very extended period for people to access their voting.

PN51

I don't know if that assists in any way, but - - -

PN52

THE COMMISSIONER: Well, we can both speculate about that. I mean that's speculation. The question is whether I can be satisfied that it wasn't likely the employees were disadvantaged, but that - - -

PN53

MS SOWDEN: We (indistinct) - - -

PN54

THE COMMISSIONER: Sorry, I was still speaking. But, you know I have to be satisfied on that point and whether it was a minor error. I mean, if it's not a minor error, well then we don't even get to (b), do we?

PN55

MS SOWDEN: No.

PN56

THE COMMISSIONER: No. All right, I will just indicate I do want to make a comment that there's a reference in the correspondence from Ms Gilroy about, to quote, 'The longer this process within the Commission takes' and there's a concern for the financial benefits of employees and you are anxious that they should receive the pay increases as quickly as possible within the enterprise agreement.

PN57

Well, I will just indicate, to the extent that - I'm sure there's not, Ms Gilroy - but I wouldn't like to think there was any inference in that that it's me that holds this agreement up. Agreements that come into my chambers that are consistent with the requirements of the Act are approved very quickly indeed and my KPIs will reflect that. If there is a delay in this agreement, it is because the statutory requirements have not been complied with.

PN58

Is there anything else that you wanted to say? I'm happy to make a decision on the matter.

PN59

MS SOWDEN: Look, I think, reading from your tone, I can see where perhaps your decision might sit. However, I think the question that probably we would pose to you is: if a 14-day voting period is not sufficient to provide adequate opportunity for voting and then there's a low voting and that would be somehow held as caused by there being a sort of procedural deficiency in the access period and the timing, we think that's a rather long kind of bow to draw because we consider the 14-day period for voting, being so extensive, rather demonstrates that it was genuinely agreed.

PN60

I think the elongated timing means that the deficiency, although in usual circumstances would, I accept, not be regarded as minor, in these particular circumstances where there is a very extended voting period, very accessible to staff at their required location, we maintain that it is minor in these circumstances, having regard to that extended period.

PN61

So, I guess we look for differentiation between the normal course, where you might have one voting day or one voting session or one 24-hour log-in. We are in a very different space in terms of there being a voting period, and I think that's probably the strength from Flick's perspective in terms of the procedural deficiency being minor.

PN62

THE COMMISSIONER: Yes.

PN63

MS SOWDEN: And in terms of the voting level, we accept that, ideally, yes, we would want more people to vote, but we can't force people to vote. We can make it as available as possible, as easy as possible, and that's what we have done, and so I guess our submission to you would be if the access period - if there was compliance with that and notification before that, we would submit that there really wouldn't be any difference in the voting level because of that extended period of access.

PN64

THE COMMISSIONER: Well, that's what you anticipate, but you don't know, do you?

PN65

MS SOWDEN: Well, I mean, I guess - - -

PN66

THE COMMISSIONER: I don't know, you don't know that.

PN67

MS SOWDEN: Our submission is that 14 days' voting produced that result and - - -

PN68

THE COMMISSIONER: Right.

PN69

MS SOWDEN: - - - we maintain that's the voting level that's out there in terms of the interest and the engagement by employees.

PN70

THE COMMISSIONER: All right. Anything else?

PN71

MS SOWDEN: No, thank you, Commissioner.

PN72

THE COMMISSIONER: All right. I have considered those submissions.

PN73

I am not satisfied this is a minor procedural error and, in circumstances where it is not in contest that section 180(3) was not complied with, then the ability to reach a state of satisfaction that the agreement has been genuinely agreed, having regard to the circumstances in 188(2)(a) and (b), it is not available to me, and, for that reason, the agreement cannot be approved and the application is dismissed.

PN74

I will provide full written reasons for this decision, but, for the benefit of your client, who is concerned about the time frame, and I understand that, then you have got that certainty going forward. Written reasons I will get out as soon as I possibly can.

PN75

That concludes the matter for today. Thanks for your submissions.

PN76

MS SOWDEN: Thank you, Commissioner.

PN77

MS GILROY: Thank you.

ADJOURNED INDEFINITELY [4.21 PM]