PR926943 PR926943 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.99 notification of an industrial dispute Finance Sector Union of Australia and GIO Australia Limited (C No. 2002/5745) Various employees Insurance industry SENIOR DEPUTY PRESIDENT DUNCAN SYDNEY, 22 JANUARY 2003 Adjournment. DECISION This decision was issued in transcript of proceedings on 15 January 2003. Edited it is now published. [1] This decision concerns an application for adjournment of the hearing of a notification of a dispute by the Finance Sector Union of Australia (FSU) under s.99 of the Workplace Relations Act 1996 (the Act). As originally notified, the dispute was described as: "re: decision of the employer at GIO and Suncorp to conduct an unfair ballot for a non-union agreement proposed for 11 December 2002." [2] The dispute has been before the Commission on a number of occasions, to this point by way of conciliation. The FSU sought to call evidence and make submissions which went to its claim that there was no genuine approval of an agreement under section 170LK of the Act between Suncorp GIOA and their employees which is before the Commission for certification. [3] Suncorp GIOA seeks that the Commission use its powers under the Act to adjourn the dispute matter till after the application for certification is dealt with. [4] Before dealing with that, I record that I insisted that Mr Penning, who appears for the FSU, be permitted to make a brief opening to itemise the concerns of the FSU. In the context of the application for an adjournment, they are relevant. In summary they are: 1. Email access was blocked from 8 November 2002 to the week of the ballot, that is access by the FSU. 2. The company distributed extensive information to which the FSU had no real opportunity to reply. 3. The representations by management about the effect of a no vote were influential. 4. Denial (to FSU) of access to Clarence Street premises for meetings. 5. The company required all employees to attend information sessions to promote a yes vote. 6. The Suncorp employees' involvement is disputed. 7. There were flaws in the scrutineering process, for example, counting took place in New Zealand. [5] Mr Penning saw as the remedy the use of the Commission's powers under section 135(2A) of the Act to order a secret ballot. Section 135(2A) provides: "(2A) If: (a) the Commission is required under Part VIB to be satisfied that a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement have genuinely made the agreement or given an approval; and (b) the Commission is not so satisfied; then: (c) the Commission may order that a vote be taken by secret ballot (with or without a provision for absent voting), in accordance with directions given by the Commission, of persons employed at the time of the ballot whose employment is or will be subject to the agreement to determine whether they would make the agreement or give the approval." [6] The section goes on to matters which are not relevant. Those matters outlined in the opening confirm my view that the issue in the dispute is properly characterised as whether or not there is genuine approval to the agreement. [7] Mr Harmer, appearing for Suncorp GIOA submitted that the Commission should not proceed with the s.99 matter before the certification application was dealt with because to do so would be tantamount to getting around the provisions of section 43(2) of the Act. [8] Section 43(2) of the Act provides: "(2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission: (a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in sub section 170LK (4) in relation to the agreement, provided the request was not withdrawn; and (b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement." [9] It was submitted that the FSU does not comply with either (a) or (b) of section 43(2). For present purposes I accept that submission. [10] I am satisfied that this matter should be adjourned to permit the hearing of the application for certification. My reasons are as follows. [11] Although the dispute is certainly not trivial it is currently concerned with whether or not genuine approval of the agreement was forthcoming. I accept that the provisions of section 43(2) of the Act are a code dealing with the capacity of the Commission to permit the intervention by organisations on the certification of agreements under part VIB of the Act. [12] I adopt, with respect, the reasoning of Deputy President Hamilton in Maintenance Resource Engineering Pty Limited Shell Geelong Refinery Enterprise Agreement 2002-2005 , [Print PR916524 ] in this regard. The issue of genuine approval is a critical issue in the certification process. It is in fact a jurisdictional fact. The issue is the same in each proceeding. To hear the present dispute to a conclusion when there is an application before the Commission for certification would be to get around section 43(2) of the Act. [13] Further, the power to adjourn is procedural. This aspect is the subject of a number of decisions of the Commission as presently constituted. In re Commonwealth Bank of Australia Employees Award 1999 [Print PR905433 ], I said amongst other things: "The ruling to adjourn is merely procedural and taken for the purpose of ordering a fashion in which the parties may proceed in matters where similar issues are raised in different jurisdictions. This to my mind is of sufficient importance to justify any delay occasion which might otherwise not be justifiable under those provisions of the Act referred to by Mr Douglas and which I refer to collectively as the all due speed provisions. Further, an adjournment in the circumstances outlined is not a refusal to hear a matter as is contemplated by section 111 (1)(g) of the Act but a postponement of the hearing on grounds deemed sufficient." [14] The situation in this case is similar although in the matter referred to the similar issues were in different jurisdictions. Here the matters are both before the Commission and this, to my mind, strengthens the procedural nature of this ruling. In my view, my decision to adjourn the matter is consistent with section 110(2) of the Act. [15] Consequently, in so far as matter C2002/5745 concerns the issue of genuine approval or conduct of the ballot (it may concern other issues) I adjourn it to a date to be fixed after the matter AG2002/6818 is dealt with. [16] Subject to this the parties are at liberty to apply. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: S. Penning for the Finance Sector Union of Australia. M. Harmer for GIO Australia Limited. Hearing details: 2002. Sydney: November 11; December 2, 20. 2003. Sydney: January 15. Printed by authority of the Commonwealth Government Printer <Price code B>