WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES TRANSPORT WORKERS’ UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH, APPLICANT v. DOWN SOUTH TRANSPORT PTY LTD, RESPONDENT CORAM COMMISSIONER J H SMITH DELIVERED FRIDAY, 6 JULY 2001 FILE NO C 145 OF 2001 CITATION NO. 2001 WAIRC 03201 _______________________________________________________________________________ Result Declaration that the matters in dispute between the Respondent and Mr White is not an industrial matter. Representation Applicant Mr R Raven Respondent Mr J N Uphill as agent _______________________________________________________________________________ Reasons for Decision. 1 On 13 June 2001 the Union lodged an application for a conference under s.44 of the Industrial Relations Act 1979 (“the Act”) claiming that three employees employed by Down South Transport Pty Ltd (“the Respondent”) had expressed their desire to improve their conditions of employment by carrying out their existing pattern of work, under the Transport Workers’ (General) Award (“the Award”) rather than under a new workplace agreement. 2 The Commission convened a compulsory conference under s.44 of the Act on 26 June 2001 in respect of this matter. At the conference, the Respondent raised a preliminary issue in respect of one of the employees, namely Andrew White. The issue raised is that Mr White and the Respondent are parties to a registered workplace agreement, whereby by operation of s.7A and s.7C of the Act and s.19(4)(b) of the Workplace Agreements Act 1993, the Commission is prohibited from dealing with the matters in dispute in respect of Mr White’s employment. 3 Mr White and the Respondent became parties to a workplace agreement which was signed by both parties on 24 March 2000 and was subsequently registered by the Commissioner of Workplace Agreements. A copy of the Workplace Agreement has been provided to the Commission. For the reasons set out by Beech, C in Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch v Bowra and O’Dea Pty Ltd (2000) 80 WAIG 2747 at 2747, the Commission is not prohibited by s.26A of the Act by informing itself of Mr White’s workplace agreement, as the Commission is not exercising the jurisdiction conferred on it by s.23 to enquire into and deal with any industrial matter. Rather, it is determining whether it has an industrial matter before it. 4 The express terms of Mr White’s workplace agreement, under the heading “Duration of Agreement” provide, “This agreement will expire on 03/05/2001”. Further, under the heading “Expiry of Agreement” it is provided— “No later than four weeks before expiry of this agree- ment, the parties shall meet to discuss the arrangements to apply after the agreement expires. The parties agree that until another workplace agree- ment is registered this agreement will be abided by.” 5 On a date unknown in May 2001, the Respondent wrote to Mr White and stated— “Unfortunately due to the fact your workplace agree- ment expired on 05/05/01 and as yet we have not come to any other agreement we have no alternative but to pay you on TWU minimum rates of $11.83 per hour gross. …. You still have the option of signing the workplace agreement which is still open for negotiation. For your information we have enclosed a sample for you to look at and is correct to the best of our knowl- edge. TWU rates for 37.5 hr week would be $443.63 gross Possible extra 5 hrs a week $88.75 Total possible earnings $532.38 gross per week New workplace agreement as it stands at present 37.5 hrs per week $468.75 gross Extra 5 hrs $62.50 gross Total would be $531.25 Potential to earn more but obviously at the rate at present of $12.50 per hour gross.” 6 In a letter signed by Mr White and two other employees on 14 June 2001, the Respondent was informed by Mr White that he did not wish to sign a new workplace agreement and he made a demand that his pay and conditions be in accordance with the Award. 7 Section 19(4) of the Workplace Agreements Act provides— “(4) On the expiry of a workplace agreement this Act no longer applies to any contract of employment that it governed and that contract then becomes subject to relevant award provisions (if any) un- less it becomes subject to — (a) another workplace agreement; or (b) some other arrangement between the par- ties provided for in the expired workplace agreement.” 8 Section 7A of the Act provides— “Without limiting the other provisions of this Part, this Act has effect subject to the Workplace Agree- ments Act 1993.” 9 Section 7C of the Act provides— “(1) Where any employer and any employee are par- ties to any workplace agreement, a matter that is part of the relationship between that employer and that employee — (a) is not — (i) an industrial matter; or (ii) capable of being agreed to be an in- dustrial matter, for the purpose of the definition of “industrial matter” in sec- tion 7(1); (b) is not capable of being determined under section 24(1) to be an industrial matter; and (c) cannot be referred to the Commission un- der section 80ZE. (2) Subsections (3) and (4) of section 34 do not ap- ply to a determination that is made contrary to subsection (1)(b) or to any proceeding based on that determination, and in the determination of any application for a prerogative writ or declara- tory judgment no regard shall be had to the existence of any right of appeal under this Act. (3) Subsection (1) also applies where — (a) a workplace agreement has expired; and (b) an arrangement is in force between the par- ties to that agreement of the kind referred to in section 19(4)(b) of the Workplace Agreements Act 1993, except to the extent that the employer and any employee agree that any matter is to be treated as an industrial matter between them.” WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2457 81 W.A.I.G. 10 Section 7D of the Act provides— “(1) Where any employer and any employee are par- ties to — (a) an agreement that has been lodged for reg- istration as a collective workplace agreement under Division 4 of Part 2 of the Workplace Agreements Act 1993; or (b) a workplace agreement that is in force un- der that Act, the powers in section 44 shall not be exercised by the Commission — (c) to summon that employer or employee under that agreement to attend at a confer- ence in relation to any matter (including industrial action) affecting, relating to or arising out of — (i) that agreement; or (ii) if that agreement has expired or is about to expire, the making of a new workplace agreement in its place; or (d) to deal with any matter affecting, relating to or arising out of — (i) the relationship of that employer and that employee while that agreement is in force; or (ii) that agreement after it has expired, unless the agreement provides for the Commission to do so. (2) Without limiting paragraph (b) of subsection (1), that subsection ceases to apply to an agreement that has been lodged as mentioned in paragraph (a) of that subsection — (a) on the refusal of registration and the expi- ration of the time for appeal against that refusal; or (b) if such an appeal is commenced, on the dis- position of the appeal that does not result in registration of the agreement or on the appeal being discontinued or dismissed for want of prosecution.” 11 The Union submits that s.7D of the Act empowers the Commission to have jurisdiction in respect of this matter as the workplace agreement has expired, notwithstanding some other arrangement between the parties has been provided for in the workplace agreement, as contemplated by s.19(4) of the Workplace Agreements Act. Alternatively, the Union argues that the terms of Mr White’s workplace agreement no longer have any effect. In support of this argument, the Union raises three grounds. The first is that the Respondent has cancelled the workplace agreement. Secondly, by victimising Mr White the Respondent has lost its right to any benefits arising from the workplace agreement. Thirdly, the terms of the “Expiry of Agreement” clause should not be read so as to continue the terms of the workplace agreement, as to do so is unconscionable. 12 The Respondent contends that the workplace agreement has not expired. In the alternative, it is argued on behalf of the Respondent that as the expired workplace agreement provides for an arrangement on expiry as contemplated by s.19(4)(b) of the Workplace Agreements Act, the effect of s.7C(3)(b) of the Act is that the matters in dispute in respect of Mr White is not an industrial matter. 13 The Respondent’s argument that the workplace agreement has not expired in my view cannot be made out. The consequence of the Respondent’s argument is that if the workplace agreement has not expired then the agreement would be invalid. Pursuant to s.16(1)(a) of the Workplace Agreements Act, a workplace agreement must comply with s.19(3) of the Workplace Agreements Act. Section 19(3) of the Workplace Agreements Act, requires that a workplace agreement must provide for the day on which it expires which cannot be more than five years after it was entered into. Mr White’s workplace agreement expressly and unequivocally has the effect that the workplace agreement expired on 3 May 2001. 14 The real issue in this matter is whether upon the expiry of the workplace agreement the contract of employment between Mr White and Respondent became subject to some other arrangement within the meaning of s.19(4)(b) of the Workplace Agreements Act. The first sentence of the “Expiry of Agreement” clause requires the parties to meet and discuss arrangements that are to apply after the workplace agreement expires. It is apparent from the undated letter set out in paragraph 5 above, the parties have had some discussion about the arrangements to apply after the workplace agreement expired. It is also apparent from that letter that the employee was offered Award conditions or, alternatively, to enter into a new workplace agreement. It is clear from the group letter to the Respondent dated 14 June 2001, that Mr White advised the Respondent that he did not wish to enter into a new workplace agreement. The Union contends those negotiations can be construed as a cancellation of the workplace agreement within the meaning of s.24(1) of the Workplace Agreements Act. In particular, it is argued by the Union that the Respondent’s undated letter and Mr White’s response dated 14 June 2001 can be construed as “an agreement in writing to cancel the workplace agreement”. 15 Section 24 of the Workplace Agreement Act provides— “(1) The parties to a workplace agreement may enter into an agreement in writing cancelling the workplace agreement. (2) The parties to a workplace agreement may while it is in force agree to change the agreement, but can only do so by a new workplace agreement containing the change. (3) A change under subsection (2) cannot be in the form of a separate variation agreement. (4) On the cancellation of a workplace agreement this Act no longer applies to any contract of employ- ment that it governed and that contract then becomes subject to relevant award provisions (if any) unless it becomes subject to another workplace agreement.” 16 Section 31 of the Workplace Agreement Act must also be considered. It relevantly provides— “(1) Where in relation to an agreement the Commis- sioner is satisfied as to the matters referred to in section 30 (1), the Commissioner must — (a) register the agreement as a workplace agreement or as an agreement under sec- tion 23 (1) or 24 (1), as the case may be; and (b) give to the parties notice in writing of the registration and the day on which it oc- curred, within 7 days after that day. (2) Where in relation to an agreement the Commis- sioner is not satisfied as to the matters referred to in section 30 (1), the Commissioner must unless section 32 applies — (a) refuse to register the agreement; and (b) within 7 days after making that decision, give to each party a notice of the refusal and of the reasons for it.” 17 The effect of s.24 of the Workplace Agreements Act is that a workplace agreement can only be cancelled by entering into a new workplace agreement or an agreement that is registered by the Commissioner of Workplace Agreements. This construction is supported by the requirements of s.31(1) of the Workplace Agreements Act which imposes a duty on the Commissioner of Workplace Agreements to be satisfied of certain matters set out in s.30(1) of the Workplace Agreements Act, prior to registering an agreement as an agreement under s.24(1) of the Workplace Agreements Act. 18 The Union in written submissions concedes that the parties have not registered any agreement to cancel the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 2458 workplace agreement but says the issue is academic because mutual termination was not of the workplace agreement, but of the agreement to continue its terms and conditions after the workplace agreement expired. The Union says that pursuant to the definition of workplace agreement in s.3 of the Workplace Agreements Act and the provisions of s.6(4) of the Workplace Agreements Act, a workplace agreement only displaces a contract of employment where a workplace agreement is in force. 19 Section 3 of the Workplace Agreements Act defines a workplace agreement to means— “ an agreement of the kind described in section 5 and where the context so requires means an agree- ment of that kind that is in force.” 20 Section 6 of the Workplace Agreements Act provides— “(1) Where a workplace agreement — (a) has been made between — (i) an employer and an employee under a contract of employment; or (ii) an employer and employees under con- tracts of employment; and (b) has come into force, no award, whether existing or future, applies to — (c) that contract or those contracts of employ- ment; or (d) the employer or any such employee as a party to any such contract, so long as the workplace agreement remains in force. (2) Where a workplace agreement has been made as mentioned in subsection (1) (a), in relation to any contract of employment, and has come into force, any award provision that applied to that contract immediately before that coming into force is not to be implied into, or in any way read as being part of, the workplace agreement unless the agree- ment expressly so requires. (3) A workplace agreement also has the effects de- scribed in sections 7B, 7C, 7D and 7E of the Industrial Relations Act 1979. (4) A workplace agreement does not displace the con- tract of employment between an employer and an employee but while it is in force it has effect — (a) as if it formed part of that contract; and (b) regardless of any provision of that contract. (5) Subsection (1) (c) may be extended by an agree- ment of the kind described in section 14 (2).” 21 The Union’s argument, however, does not consider the effect of s.19(5) of the Workplace Agreements Act, which provides that as long as a contract of employment is not subject to Award provisions because of an arrangement under s.19(4)(b), s.6 continues to apply to that contract as if the workplace agreement had not expired. When s.6 is applied to an agreement made to continue the terms of the workplace agreement after the workplace agreement has expired, the consequences are that pursuant to s.6(1)(c) the workplace agreement remains in force and the effects described in s.7B, 7C and 7D of the Act apply. 22 In relation to s.7D of the Act, the Union argues that whereas s.7C(3)(b) of the Act expressly excludes as an industrial matter any matter that is part of the relationship between an employer and employee, where there is an arrangement in force between the parties referred to in s.19(4)(b) of the Workplace Agreements Act, s.7D does not contain such an exclusion. However section 7D(1)(d)(i) excludes the Commission’s jurisdiction under s.44 to deal with any matter affecting, relating to or arising out of the relationship of that employer and that employee whilst the workplace agreement is in force, or an arrangement between the parties provided for in the expired workplace agreement is in force within the meaning of s.7D(1)(d)(i) of the Act. Further, it is clear from the provisions of s.44(6), (8), (9) and (12)(a) of the Act that the Commission can only deal with industrial matters under s.44 of the Act. 23 Whilst the Union argues that consequences of a finding that this Commission has no jurisdiction to deal with the matters in dispute in respect of Mr White is unconscionable, it is not open to the Commission not to give effect to legislative provision even if the result may be considered inconvenient or unfair to Mr White as the function of a judicial or administrative body in interpreting legislation remains one of construction and not legislation (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 per McHugh JA at 423). It is only where two meanings of a legislative provision are open, that regard may be had to the consequences of interpretation (see Public Transport Commission of NSW v Murray-More (NSW) Pty Ltd (1975) 6 ALR 271 per Gibbs J at 282). 24 In relation to the Union’s argument that the Respondent has allegedly victimised Mr White, the Union relies upon an argument in relation to breaches of s.67 of the Workplace Agreements Act. However, it is not open to this argument to be considered by the Commission unless the Commission makes a finding that an industrial matter arises. 25 For the reasons set out above, the matters in dispute between the Respondent and Mr White is not an industrial matter and the Commission does not have the jurisdiction to enquire into and deal with those matters. 26 The preliminary point is decided accordingly. The application otherwise remains adjourned pending a request from either party for it to be re-listed. 2001 WAIRC 03421 ALLEGED THREAT OF PREJUDICE IN THE EMPLOYMENT OF APPLICANT UNION