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cpsu-v-wise-employment-pr961583

VIEWS: 6 PAGES: 27

									PR961583

               AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

                               Workplace Relations Act 1996
                            s.99 notification of industrial dispute

                     CPSU, the Community and Public Sector Union

                                             and

                                     Wise Employment
                                      (C2004/6736)

Local government and administration

COMMISSIONER GRAINGER                                      MELBOURNE, 19 AUGUST 2005

Wages and conditions – log of claims.

                                        DECISION

[1]     On 18 November 2004 the CPSU, the Community and Public Sector Union (CPSU,
the applicant) lodged an application in the Commission pursuant to the provisions of s.99 of
the Workplace Relations Act 1996 (the Act) against a number of respondents, including Wise
Employment (Wise, the respondent). Wise contests CPSU’s request for the Commission to
find the existence of an industrial dispute.

[2]    Ms. L. Andelman appeared for the CPSU and Wise was represented in this matter by
Mr T. Donaghey of counsel.

The Log of Claims

[3]     On 18 November 2004, a Form R4 application, signed by the National President of the
CPSU, Mr Mark Gepp, was lodged in the Commission together with a log of claims (Exhibit
A1), statement as to service, and statement as to authority. The letter of demand and log of
claims (the log) was purportedly served on Wise on or around the 18 October 2004 by
registered post. A motion to serve the log of claims was duly authorised on 15 October 2004
by CPSU under the relevant rules.

[4]   On 21 December 2004, Mr Blackett for Wise indicated at the initial hearing in
Canberra that Wise objected to the Commission finding an industrial dispute (PN85-91).

[5]     On 1 June 2005, the CPSU modified the log of claims and forwarded this amended log
of claims (the amended log), together with written submissions, to the solicitors for Wise for
their comment (Exhibit CPSU-W1):

       “The CPSU believes that all matters in the claim pertain to the relationship between
       the employer and employees. However, in the interests of expediting this matter, the
       CPSU is prepared to modify its claim and not press a number of claims, in response to
       the submissions from WISE Employment Ltd.



                                              1
      In response to the submissions from WISE Employment Ltd the CPSU seeks to
      amend our claim as follows:

      2.7 amended
      3 (ix) amended
      4.2 (b) amended
      6 amended
      7 (b) amended
      7(d) deleted
      9(a) amended.
      9(b) amended.
      9(c) 9 (d) deleted.
      10(d) amended
      14(b) amended
      16 (a) amended
      16 (c) amended
      16 (h) amended
      18 amended
      19 (a) amended
      19 (b) amended
      20 (a) amended
      22 (a) amended
      22 (d) amended. Note comments in Ballantyne PR 95265, paragraphs 64, 65 & 150
      regarding facilities for delegates.
      22 (e) amended. Note comments in Ballantyne PR 95265, paragraphs 64, 65 & 150
      regarding facilities for delegates.
      22 (g) deleted
      22 (h) amended
      22 (i) amended
      22 (j) amended. Note comments in Ballantyne regarding leave for training and union
      activity. Para 145 & 169.
      22 (k) amended. Note comments in Ballantyne regarding leave for training and
      union activity. Para 145 & 169.
      22 (1) amended.
      26 (c) amended
      28 (a) amended
      27 (d) deleted
      32 amended. The matters of facilities for employees pertains to the relationship.

      Should the Commission determine that a particular matter in the amended claim not
      sufficiently pertain to the employment relationship, the Union will further consider
      whether the particular claim will be pressed.

      For the assistance of the Commission and WISE Employment Ltd. attached is a
      marked up copy and a clean copy of the amended claim.”

The Legislation

[6]   Section 4(1) of the Act defines “industrial dispute” as:

      “industrial dispute (except in Part XA) means:



                                             2
          (a) an industrial dispute (including a threatened, impending or probable
          industrial dispute):

                (i) extending beyond the limits of any one State; and

                (ii) that is about matters pertaining to the relationship between employers
                and employees; or

          (b) a situation that is likely to give rise to an industrial dispute of the kind referred
          to in paragraph (a);

      and includes a demarcation dispute (whether or not, in the case of a demarcation
      dispute involving an organisation or the members of an organisation in that capacity,
      the dispute extends beyond the limits of any one State);”

[7]    Section 88A of the Act sets out the objects of Part VI of the Act as to Dispute
Prevention and Settlement as follows:

      “The objects of this Part are to ensure that:


          (a) wages and conditions of employment are protected by a system of enforceable
          awards established and maintained by the Commission; and

          (b) awards act as a safety net of fair minimum wages and conditions of
          employment; and

          (c) awards are simplified and suited to the efficient performance of work
          according to the needs of particular workplaces or enterprises; and

          (d) the Commission‟s functions and powers in relation to making and varying
          awards are performed and exercised in a way that:

                (i) encourages the making of agreements between employers and employees
                at the workplace or enterprise level; and

                (ii) uses a case-by-case approach to protect the competitive position of
                young people in the labour market, to promote youth employment, youth
                skills and community standards and to assist in reducing youth
                unemployment.”

[8]   Section 89A of the Act provides:

      “Industrial dispute normally limited to allowable award matters

      (1) For the following purposes, an industrial dispute is taken to include only matters
      covered by subsections (2) and (3):

          (a) dealing with an industrial dispute by arbitration;

          (b) preventing or settling an industrial dispute by making an award or order;



                                              3
    (c) maintaining the settlement of an industrial dispute by varying an award or
    order.

Allowable award matters

(2) For the purposes of subsection (1) the matters are as follows:


    (a) classifications of employees and skill-based career paths;

    (b) ordinary time hours of work and the times within which they are performed,
    rest breaks, notice periods and variations to working hours;

    (c) rates of pay generally (such as hourly rates and annual salaries), rates of pay
    for juniors, trainees or apprentices, and rates of pay for employees under the
    supported wage system;

    (d) incentive-based payments (other than tallies in the meat industry), piece rates
    and bonuses;

    (e) annual leave and leave loadings;

    (f) long service leave;

    (g) personal/carer‟s leave, including sick leave, family leave, bereavement leave,
    compassionate leave, cultural leave and other like forms of leave;

    (h) parental leave, including maternity and adoption leave;

    (i) public holidays;

    (j) allowances;

    (k) loadings for working overtime or for casual or shift work;

    (l) penalty rates;

    (m) redundancy pay;

    (n) notice of termination;

    (o) stand-down provisions;

    (p) dispute settling procedures;

    (q) jury service;

    (r) type of employment, such as full-time employment, casual employment, regular
    part-time employment and shift work;

    (s) superannuation;



                                       4
    (t) pay and conditions for outworkers, but only to the extent necessary to ensure
    that their overall pay and conditions of employment are fair and reasonable in
    comparison with the pay and conditions of employment specified in a relevant
    award or awards for employees who perform the same kind of work at an
    employer‟s business or commercial premises.

(3) The Commission‟s power to make an award dealing with matters covered by
subsection (2) is limited to making a minimum rates award.

Limitations on Commission‟s powers

(4) The Commission‟s power to make or vary an award in relation to matters covered
by paragraph (2)(r) does not include:

    (a) the power to limit the number or proportion of employees that an employer
    may employ in a particular type of employment; or

    (b) the power to set maximum or minimum hours of work for regular part-time
    employees.

(5) Paragraph (4)(b) does not prevent the Commission from including in an award:


    (a) provisions setting a minimum number of consecutive hours that an employer
    may require a regular part-time employee to work; or

    (b) provisions facilitating a regular pattern in the hours worked by regular part-
    time employees.

(6) The Commission may include in an award provisions that are incidental to the
matters in subsection (2) and necessary for the effective operation of the award.

Exceptional matters may be included in industrial dispute

(7) Subsection (1) does not exclude a matter (the exceptional matter) from an
industrial dispute if the Commission is satisfied of all the following:

    (a) a party to the dispute has made a genuine attempt to reach agreement on the
    exceptional matter;

    (b) there is no reasonable prospect of agreement being reached on the exceptional
    matter by conciliation, or further conciliation, by the Commission;

    (c) it is appropriate to settle the exceptional matter by arbitration;

    (d) the issues involved in the exceptional matter are exceptional issues;

    (e) a harsh or unjust outcome would apply if the industrial dispute were not to
    include the exceptional matter.

Anti-discrimination clause



                                        5
      (8) Nothing in this section prevents the Commission from including a model anti-
      discrimination clause in an award.


      Note: A model anti-discrimination clause was established by the Commission in the
      Full Bench decision dated 9 October 1995 (print M5600).

      Interpretation

      (9) In this section, outworker means an employee who, for the purposes of the business
      of the employer, performs work at private residential premises or at other premises
      that are not business or commercial premises of the employer.”

[9]   Section 99 of the Act provides:

      “99 Notification of industrial disputes

      (1) As soon as an organisation or an employer becomes aware of the existence of an
      alleged industrial dispute affecting the organisation or its members or affecting the
      employer, as the case may be, the organisation or employer shall notify the relevant
      Presidential Member or a Registrar.

      Note: Some industrial disputes (including demarcation disputes) are dealt with under
      the Registration and Accountability of Organisations Schedule.

      (2) A Minister who is aware of the existence of an alleged industrial dispute may
      notify the relevant Presidential Member or a Registrar.

      (3) Where a Registrar is notified of an alleged industrial dispute, or a member of the
      Commission who is not the relevant Presidential Member becomes aware of the
      existence of an alleged industrial dispute, the Registrar or member shall inform the
      relevant Presidential Member.

      (4) This section does not apply in relation to a dispute in relation to which Division 7
      applies.”

The CPSU’s Written Submissions

[10] CPSU made the following written submissions in relation to this specific matter
(Exhibit CPSU-W2):

      “Matters pertaining

      1. The critical provisions of the Workplace Relations Act (“Act”) for the purposes of
      this dispute are to be found in Part VI Dispute Prevention and Settlement. Division 1A
      of PT VI deals with preliminary matters and sets out the objects of the Part. Section
      88A(a) states that the object of the Part “is to ensure that wages and conditions of
      employment are protected by a system of enforceable awards established and
      maintained by the Commission and awards act as a safety net of fair minimum wages
      and conditions of employment .”




                                                6
2. Division 1 of Pt VI deals with functions of the Commission generally. Relevantly
the Division requires the Commission to establish a safety net s88B (2) and to take
into account family responsibilities convention s93A.

3. Division 2 of Part VI provides powers and procedures of the Commission for
dealing with industrial disputes. The question in this dispute is based on the
interpretation of s99, whether the matters Wise objects to are “matters capable of
being included in an industrial dispute affecting the organisation or its members or
affecting the employer, as the case may be”….

4. Section 101 requires the Commission to determine the parties to the dispute and
the matters in dispute where a proceeding in relation to an alleged industrial dispute
comes before the Commission.

5. Industrial dispute is defined in section 4, “that is about matters pertaining to the
relationship between employers and employees.”

6. Section 110 deals with the procedure of the Commission and in section 110(2) (c)
requires the Commission to act according to equity, good conscience and substantial
merits of the case, without regard to technicalities and legal forms.

7. Division 3 of Part VI specifies additional powers the Commission has in resolving
disputes subject to the Act. Division 4, 5, 6 and 7 are not directly relevant to resolving
the matters in section 101.

8. R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353 and Re Alcan
Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering
Employees (1994) 181 CLR 96 are both relevant as they deal with matters that are
covered by the current Part VI of the Act.

9.   In Alcan the Court, applying Portus said that:

“There are, in our view, three matters which tell persuasively against reconsideration
of Reg v Portus. The first is that the principle on which it proceeds, namely, that for a
matter to „pertain to the relations of employers and employees‟ it must affect them in
their capacity as such…..”

10. It is our submission that the matters Wise objects to must be viewed from this
perspective. That is, do the matters in dispute pertain to the relations of employers and
employees in their capacity as such? It is our submission that they do.

11. Wise objects to the following in CPSU‟s Log of Claims:

12. Salaries and Classifications. Clause 2.7 (c) Employees are entitled to free first
class air travel where……as a result of being retrenched.

13. The objection is on the basis of an entitlement to an employee upon the cessation
of employment can no longer relate to the employment relationship. PN247, 19 July
2005.

14. Wise has misunderstood the intention of the clause. The provision is for
employees, who as a result of being retrenched are entitled to free first class air


                                        7
travel. This is clear from the fact that clause 2.7 uses the word employee and not an ex
employee. The payment of the provision would occur while the person is an employee,
not after the cessation of employment. The same misapprehension or
mischaracterisation by Wise applies to clause 14.

15. Allowances. Clause 3(ix) The employer shall make additional payments for the
following allowances to employees of amounts determined by the union, but no less for
the following amounts recreational leave fares; where an employee lives in a remote
location or in an overseas location three first class leave fares will be provided to the
employee each year. An additional allowance equivalent to the cost of first class fares,
for each member of the employee‟s family will be paid to the employee.

16. Wise has mischaracterised the intention of this matter. The allowance is paid to
the employee directly. The amount of the allowance is the cost of first class fares for
each member of the employee‟s family. It would be the same if the amount of the
entitlement was based on years of service or the distance between the employee‟s
home and another location. The relevance of the employee‟s family in this clause
simply describes the way the entitlement can be calculated. The same reasoning
applies to the calculation of health insurance in clause 18.

17. Contractors. Clause 9 The employer shall ensure that any contractor and/or
subcontractor and/or any other person engaged by the employer on work covered by
this Claim shall pay to the employees of the contractor or subcontractor or other
person the wages and conditions contained in this Claim.

18. In Schefenacker PR956575 at paragraph 71 the Full Bench held that the
following sub clause in a clause titled Employees of Labour Hire Agencies was a
matter pertaining:

“17.6 The company will instruct the labour hire agencies to increase the wage rates of
their employees working at Schefenacker Vision Systems Australia by the same
percentage as listed in this Agreement.”

19. The clause in the CPSU log of claims is in similar terms and is therefore a matter
pertaining as “it directly concerns the security of employment of the employees
covered by the agreement.” Paragraph 83.

20. Travel and Work Related Expenses. Clause 14 Employees are entitled to free first
class air travel where they take up employment in another town, as a result of being
retrenched, appointed or transferred. See paragraph 14 of this submission.

21. Health Insurance. Clause 18 The employer shall pay an allowance to each
employee equivalent to the cost of health insurance for a family, covering insurance
for hospital, medical and dental treatment. See paragraphs 39 to 42 of this
submission.

22. Childcare. Clause 19 The employer shall pay an allowance to employees
equivalent to the cost of any child care expenses incurred by the employee.

23. The allowance for childcare costs is a cost incurred by the employee in the course
of employment and there is no reason to treat it differently from other allowances such
as travel allowance or a tool allowance.


                                       8
24. Union Consultation and Facilities. Clause 22 An accredited union representative
shall have right of entry to any place or premises where employees are working at any
time during normal working hours, including each shift, or when overtime is being
worked, for the purpose of holding meetings, interviewing employees.
(i) The employer shall provide each workplace delegate, each deputy delegate and
any other union representative employed by the employer and who is nominated by the
union such facilities as they request including (but not limited to):
(i) a lockable office of 30 square metres with furniture to a standard determined by
the union.
(ii) a lockable filing cabinet.
(iii) access to meeting rooms and conference facilities.
(iv) a fax machine with STD access.
(v) a loudspeaker phone with STD access.
(vi) a photocopy machine.
(vii) access to, and training in, the use of relevant electronic mail systems.
(viii)     a personal computer with access to relevant software, manuals printers and
other peripheral equipment.
(j) That any member of the union be granted leave with full pay to attend to union
meetings and/or any trade union training course nominated by the union, or to
perform work for the union or a council of trade unions in elected or non elected
positions.
(k). That workplace delegates and deputy workplace delegates receive paid leave to
carry out their union duties and to attend such courses, conferences and meetings as
the union deems necessary. These union representatives shall be allowed without loss
of pay, leave of 30 hours per week to attend to union business.
(l). Employees shall be granted paid leave to attend union meetings during working
hours.

25. It seems from the written and oral submissions that Wise objects to the sub
clauses in clause 22 that are underlined.

26. In Schefenacker PR956575 at paragraphs 131 and 132 the Full Bench found that
relevant clauses in the Murray Bridge log of claims, Agreement and Schefenacker
Agreement were matters pertaining to the employment relationship.

The provision in Schefenacker is as follows:

"46.0 UNION OFFICIALS AND SHOP STEWARDS

46.2 The employer shall recognise appointed union shop stewards in the enterprise
upon notification by the union to which the employee belongs. The shop steward shall
be allowed mutually agreed time during working hours to interview employees and the
employer or the employer's representative on matters affecting employees whom they
represent. The shop stewards shall be allowed reasonable time during working hours
to interview a union official from their union on legitimate union business.

46.3 Each union will be allowed 2 shop stewards on day shift, 1 on afternoon shift and
1 on night shift. A maximum of 1 shop steward (per union) on day shift may be a
tradesman.




                                      9
46.4 Shop stewards will be given the opportunity to introduce themselves at the
company off-the-job induction program. Shop stewards will also be given a list of new
starters."

The provision in Murray Bridge reads:

"CLAUSE 29. RECOGNITION OF WORKSITE REPRESENTATIVES

29.1 An employee elected as an ANF Worksite Representative will, upon notification
to the employer, be recognised as an accredited representative of the Union. An
accredited Worksite Representative is allowed reasonable time during working hours
to interview and/or meet with the employer or the employers' representative on
matters affecting employees whom they represent.

29.2 Subject to the prior approval of the employer, a worksite representative shall be
allowed at a place designated by the employer a reasonable period of time during
working hours to interview a duly accredited official from the Australian Nursing
Federation, in accord with the provision of Clause 28 Right of Entry."

Murray Bridge log of claims:

"64. WORKPLACE REPRESENTATIVES

(a) The Respondent shall recognize any employee duly accredited as a Federation
Workplace representative and such representative shall be granted one day on full pay
(including all penalties and allowances) each week to perform his or her duties and
the Respondent shall provide such representative with an office for that purpose.

(b) A Respondent shall at all times respond to, and assist, workplace
representatives."

27. Clause 22 of the CPSU log of claims is in narrower terms than the clauses the
Full Bench in Schefenacker found to be matters pertaining to the employment
relationship.

28. Home Based Employment. Clause 32 The employer shall make all necessary
arrangements and provide all necessary resources to permit employees, where they so
request, to perform their duties at their place of residence, without detriment to their
status as employees, and under conditions to be agreed by the union.

29. Home based employment is an entitlement pertaining to the relations of employers
and employees in their capacity as such.

Vague/Uncertain
30. The purpose of a log of claims is to commence proceedings in the AIRC, as
rejection of the log of claims by the employer is prima facie evidence of an interstate
dispute. The process, sometimes called a „paper dispute‟ has a long origin. A
comprehensive log of claims generally is one on which future awards and certified
agreements are based on and must provide ample ambit. As Windeyer J in R v Cth C
& A Comm; Ex p APEA (1959) 107 CLR 208, the purpose of a log of claims is to



                                      10
       “create malady to administer physic”. Its degree of precision is not like a pleading,
       Windeyer J in R v C & A Comm; Ex p PIEU (1964) 109 CLR 544 at 551.

       31. In R v Heagney; Ex p ACT Employers Fed (1976) 10 ALR 459 at paragraph 21
       the following clause in a log of claims was found to be not vague or imprecise:
       “employer shall obtain and maintain a life insurance policy for each employee which
       will return the equivalent of twenty years' income in the event of death.”

       32. Further in the same paragraph, Mason J said that:

       “There are problems in determining how such a policy could be taken out because the
       sum of twenty years' future income at unknown wage rates is itself an unknown
       quantity but this again does not make the demand meaningless. It may provide a good
       reason for its rejection but that is another matter.”

       33. The clauses in the CPSU log of claims are real grievances genuinely made. It is
       clear that Wise can refuse to provide home based work environment to a standard
       determined by the union as per clause 32. The claim is clear. Simply because it is in
       the future does not make it vague or uncertain. The same reasoning applies to clause
       18, health insurance.”

Wise’s Written Submissions

[11]   Wise made the following written submissions in reply on 30 June 2005 (Exhibit Wise
1):

       1. These written submissions are filed on behalf of Wise Employment (“Wise”) in
       reply to the CPSU‟s submissions and the amended log of claims attached thereto,
       which were served upon Wise (through its solicitors) on 1 June 2005.

       2. Wise refers to the amendments made to the log of claims and accepts that some of
       the amended clauses now reflect matters pertaining to the relationship between
       employer and employee. Any dispute finding, the making of which Wise continues to
       oppose, should be made only with respect to industrial matters.

       3. The clauses (and sub-clauses) in the amended log of claims which, Wise submits, do
       not pertain to the relationship of employer and employee include the following
       (Parenthetical shorthand notes listed below indicate the nature of Wise‟s objections;
       they do not explain in full Wise‟s basis for objecting to particular clauses as not
       industrial in character. Should the CPSU persist with seeking a dispute finding in
       relation to the clauses identified in this paragraph, Wise intends to make full oral
       submissions in support of its contentions at the hearing on 19 July next.):

       2.7(c) (the “as a result of being retrenched” clause); 39(ix)(payment for family
       members); 9 (contractors); 14(b)(iii)(retrenchment); 16(a); 18(payment for family
       members); 19(a)(payment of childcare); 22(h), (i), (j), (k) and (I); 32 (home-based
       employment).

       4. Amended references in the log to “the union delegate” should be qualified by an
       inserted definition of this term, with such definition to be to the effect that the union
       delegate must be an employee of the employer and employed at the employer‟s
       workplace. Otherwise, Wise submits, the Electrolux test will not be met.


                                             11
       5. Further or in the alternative, Wise submits that clauses 9, 10, 15, 16, 18-26, parts of
       clause 27, 29, 30, 3 1A, 32, 32A, 33, 34 and 35 fall outside the allowable award
       matters as listed in section 89A of the Workplace Relations Act 1996 and are therefore
       not capable of giving rise to an industrial dispute as defined in section 4 of the Act.”

[12]   On 19 July 2005, Wise made the following written submissions in reply (Exhibit Wise
2):

       “There are two broad grounds upon which certain parts of the Amended Log of
       Claims
       (dated this application is made are as follows:

       ‘Pertaining’ to the requisite relationship — section 4(1) of the WR Act

       1.   the log of claims extends beyond matters pertaining in several respects, namely:

       a. cl 2.7(c): where an employee is „retrenched‟ the benefit sought for the employee is
       beyond the relationship: see for example Electrolux Home Products Pty Ltd v
       Australian Workers‟ Union (2004) 209 ALR 116; [2004] HCA4O, per Gleeson CJ
       at[11], cf McHugh J at[60];

       b. cl 3(ix): as per above, payment in respect of, conditioned upon or otherwise flowing
       from the fact of family members is not a matter pertaining: Electrolux

       In a real and significant sense, this cannot be a mechanical or ancillary clause either:
       see Ballantyne PR952656 at [64]-[65]; Schefenacker full bench, PR956575.

       c. other demands in the Amended Log are objected to on a similar basis: see each of
       those referred to in Wise‟s submission in reply dated 30 June.

       Requirement of the Amended Log being other than vague, and supporting a dispute

       2. Alternatively to 1, there are claims which are unable to support a dispute, or so
       vague as not to be proper to be the subject of a dispute finding. The cases which Wise
       rely upon are:

       • Re ALHMWU and NT University Students Union (print L4163). See also Qantas
       Airways v AMWU (print S4003) per Munro J, at pages 3, and 6. Each of these cases
       refer in turn to High Court cases, including:
       • Merchant Service Guild case at (1913) 16 CLR 591 at 634, especially per Isaacs J;
       • R v Commonwealth Conciliation and Arbitration Commission: ex P Melbourne and
       Metropolitan Tramways Board (1965)113 CLR 228.

       3. Wise calls in aid the purpose of the dispute finding, in the scheme of the WR Act,
       and the nature of the process of settling any dispute, in submitting that the following
       elements in the Amended Log ought not be the subject of a dispute finding:

       a. cl 16(a): the requirement of provision of property to „a standard determined by
       the union‟. The question will be whether at any particular time, the employer will be,
       or will be able, to comply with an uncertain demand such as this one;



                                              12
      This can be usefully contrasted with cl 18. The cost of healthcare can be known at a
      particular time. When an amount is paid, that amount is usually known. For the same
      reason, cl 16(a) is unknown, and unknowable.

      b.   this clause is objectionable on several other grounds, including Electrolux.

      c. c1 32: Wise repeats its submission in relation to cl 16(a), in relation to this
      clause. Further, the subject matter of cl 32 is beyond that which „pertains‟ to the
      employment relationship.”

[13] On 3 August 2005, Wise made the following further written submissions in reply
(Exhibit Wise 3):

      “1 This document is Wise Employment‟s response to the CPSU‟s written submission
      dated 29 July 2005 („Further Submission’), in respect of:

      a.   the CPSU‟s amended log of claims dated 30 June 2005 („Amended Log’); and

      b. submissions made by the parties at various times, including on 16 June 2005, and
      19 July 2005 before Grainger C.

      2 In general terms, Wise Employment maintains its previous submissions. This
      document refers to matters which have been:

      a.   raised by the CPSU for the first time, either on 19 July in open Commission; or

      b.   otherwise require clarification.

      General

      3 In general terms, the submissions of the CPSU as to the nature of the question
      before the Commission are correct. The union has (albeit at a late stage)
      acknowledged the need to address the „matters pertaining‟ in the log of claims, in
      respect of the definition of „industrial dispute‟ in section 4(1) of the Workplace
      Relations Act 1996 („WR Act’).

      4    However, some difficulties arise from:

      a. the expansive view taken by the CPSU of matters „pertaining‟, where no clear
      rationale for this is given;

      b. the attempt to use decided cases as support, where the operation of the Amended
      Log does not warrant this: see in particular para 16 hereof, below; and

      c. the use of vague or uncertain demands, which may tend to undermine any dispute
      finding made.

      2.7(c) – the ‘first class air travel’ – for retrenched ex-employees claim

      5    The CPSU claim in respect of travel for ex-employees of Wise Employment.




                                              13
6 The mere description of an „ex employee‟ as an „employee‟ does not make a
matter which does not pertain into a matter which pertains. The correct question is
whether the element, or claim in the Amended Log bears the correct relationship. This
is not a question of style; but one of substance, or the „characterization, by which
[the] real or essential nature‟ of the clause can be determined: see Electrolux, per
Gleeson CJ, in particular at [17].

7 As each of Ballantyne PR952656; and the Schefenacker full bench, PR956575
found, the question to be determined is whether the „matter pertaining‟ or which is
said to pertain, relates to the relationship of the parties, in their capacities as
employer and employee respectively. A claim for first class air travel under these
circumstances is not such a creature. Wise Employment‟s objection is a narrow one,
and seeks to concentrate on cl 2.7(c) and 14(b)(iii) of the Amended Log, to the
exclusion of other clauses which do pertain.

8 The CPSU say that Wise Employment has „mischaracterised‟ the intention of the
cl 2.7(c) of the Amended Log. This is false. No clear basis is given for this
conclusion; and whilst it may be possible for this clause to be rewritten, in order to
pertain to the employment relationship, each of the CPSU and Wise employment make
submission in terms which relate to the Amended Log as it now stands.

9 The CPSU at para [14] of its Further Submission states that the „first class air
travel‟ sought would apply during an employment relationship. That is not what the
Amended Log says. The CPSU‟s submission seeks to add a gloss which is not a part
of the Amended Log.

10 Wise Employment‟s objection is a restricted one. It objects on the basis that the
„allowance‟ (as the CPSU would have it) does not relate sufficiently to employment;
instead clauses such as cl 2.7(c) and cl 14(b)(iii) cast a shadow longer than the
employment relationship, and do not „pertain‟. For this reason and those articulated
at the hearing on 19 July, any dispute finding ought not to contain this matter as an
element in that dispute.


3(ix) – the ‘first class air travel’ – for families

11 Wise Employment refers to and repeats its submissions made on 19 July. In the
circumstances, it is difficult to see how the payment to any third party occasioned by
an event during the working relationship of an employee and employer could „pertain‟
in the requisite sense.

12 Any dispute finding ought not to contain this matter as an element in that dispute.

13 Turning to para [16] of the Further Submission, the matters put by the CPSU (as
in para [14], referred to above) seem to misunderstand the objection made by Wise
Employment. The fact of payment to the employee does not alter the remoteness of the
cause of the allowance. This is not a matter which relates to the employee as such;
but rather matters such as:

a.   whether an employee has a spouse or partner at a particular time;

b.   whether (and if so, how many) children a particular employee has.


                                         14
14 The mere fact of payment to an employee does not make this matter pertain:
contra para [16] of the Amended Submission, this „method of calculation‟
demonstrates the tenuous link to the basis of payment. It would be possible to remove
this aspect from both the cl 3(ix) element and cl 18 of the Amended Log.

15 Wise Employment maintains its objection. By incorporating a reference to the
personal circumstances of the employees, this element of the Amended Log goes too
far from the dicta of Electrolux, and from a proper characterisation of the claim
sought.

9 – the contractors claim

16 The reliance by the CPSU on the clause approved by Giudice J, Lawler VP and
Simmonds C in Schefenacker, PR956575 is problematic. There are significant
differences between the Amended Log and the clause tentatively approved by the full
bench, and these differences are significant enough to cause Wise Employment to
object to the Amended Log‟s clause.

17 It is worth setting out an extract from the Schefenacker full bench:

[78]        We admit to some difficulty in characterising this provision, comprised as it
is of a series of sub-clauses with a number of legal effects. On the one hand, it may be
accepted that Schefenacker's employees have a legitimate interest in the engagement
of labour hire employees because of the effect of such engagement on their own
employment. For that reason it may be that the engagement of labour hire employees
is a matter pertaining to the relationship between Schefenacker and its own
employees. On the other hand, the extent to which the agreement can regulate the
contractual relationship between Schefenacker and labour hire agencies, yet still
pertain to the relevant relationship, is obviously a question of degree.

18 The drafting of cl 9 of the Amended Log enlarges the „degree‟ of relationship
found by the Schefenacker full bench. To that extent, cl 9 does not pertain.

19 Put another way, the significant difference is between „instructing‟ (as it was put
in Schefenacker) and „ensuring‟. In the case of Wise Employment, cl 9 seeks to create
an obligation to ensure others‟ compliance with the Amended Log.

20 It is necessary to set out the actual terms of the disputed clause. The terms of cl 9
of the Amended Log are relevantly:

b The employer shall ensure that any contractor and/ or subcontractor and/ or any
other person engaged by the employer on work covered by this Claim shall pay to the
employees of the contractor or subcontractor or other person the wages and
conditions contained in this Claim.

[my emphasis]

21 The supervision of another party‟s payroll, and an obligation (by means not
stated) to „ensure‟ compliance were matters not contemplated by the Schefenacker full
bench. This travels quite a long way beyond that contemplated by that full bench and
the „job security‟ described there.


                                      15
22 Indeed, it requires Wise Employment to positively guard against underpayment,
an obligation which even the inspectorate does not have under the WR Act. To the
extent that Wise Employment is required to behave as its contractors‟ guardian, this
clause does not pertain.

32 – from-home work

23 The objection to his clause is on two bases. The first of these is that the
involvement of the union makes the matter „not pertain‟.

Part 1 – not „pertaining‟

24 This submission may be usefully distinguished from union representation clauses,
which are set out in the CPSU‟s Further Submission. In this case, the Amended Log
requires the standard of accommodation for the employee to an approved level not
ascertainable by any particular standard, but rather by the union. This external
standard places the union in a position of overseer, and has little bearing upon the
relation of employer and employee as such.

25 Wise Employment submits that any dispute ought not contain this element.

Part 2 – vague or uncertain

26 A further ground for objection to cl 32 of the Amended Log relates to vagueness
or uncertainty.

27 It is important to remember that Electrolux and Schefenacker and other cases
were considering the terms of section 170LI, and in particular whether the terms of
that section of the WR Act allowed the relevant certified agreement to be certified by
the Commission.

28 In this case, section 4(1) and the relevant definition in the WR Act play a different
role. The context requires certainty as to the terms of compliance; it follows that
where there is no compliance, then the Commission is empowered to find as a matter
of fact that there is an industrial dispute in existence.

29 It follows that where a claim is:

a.   vague, or

b.   has no clearly discernible meaning; or

c. creates difficulties in ensuring that a dispute has occurred, or is occurring at any
particular time,

then a dispute ought not be found in respect of such an element

30 In respect of clause 32 of the Amended Log, the future aspect of that claim is not
the only objectionable part (as the CPSU‟s submission would have it.) Rather, the
„outside force‟ of the union setting a standard, which is neither:



                                       16
      a.   stated in the Amended Log; and

      b. capable of determination (say, by reference to a standard or legislative
      requirement), but is alterable at a whim,

      both mean that a dispute might exist in relation to this clause at some times, and yet
      not at others. This does not bode well for the future, and any party attempting to
      determine where they stand at a particular time.

      31 The dicta of Mason J (as his Honour then was) from R v Heagney is instructive.
      In that claim, the amount sought or demanded in the log of claims had a method of
      calculation: it was insurance, indemnifying an employee for “20 years‟ wages” on
      death.

      32 By contrast, Wise Employment might make any provision, for a from-home
      worker, or might make no provision. Depending upon the attitude of the union, both
      the extent of the dispute (and, problematically) the very existence of it, might exist at
      some times and not at others. This is far more uncertain than in R v Heagney.

      33 As has been submitted, other terms or another obligation entirely might create a
      possible dispute. Wise Employment makes its submission in respect of the Amended
      Log as it currently stands.

      CONCLUSION

      34 Wise Employment makes its objections as articulated previously, except as
      modified by this submission. It presses its objections.”

[14] Mason CJ, Deane and Gaudron JJ in Re SPSF; Ex p A-G (WA) [1993] 48 IR 241 at
242 to 247 found that:

      “It has long been recognised that an industrial dispute may be generated by a written
      demand. Disputes of that kind are commonly called „paper disputes‟ … all that is
      necessary to constitute an industrial dispute is disagreement as to the terms or
      conditions that should, in fact, apply as between employer and employee. Obviously,
      disagreement of that kind may come about as the result of a written demand and, thus,
      there is nothing inherently artificial about a „paper dispute‟.

      It is sometimes said that a „paper dispute‟ must be a „genuine dispute‟. That means no
      more than that written demands must be genuine demands … [t]o ascertain whether
      demands are „genuine demands‟; it is sometimes asked whether the demands are
      seriously advanced or, in the case of demands by or an behalf of employees, whether
      they are advanced with a view to „obtaining improved terms and conditions … within
      the framework of the claims made‟. This last formulation is one that takes account of
      the doctrine of ambit and allows that a demand may be genuine notwithstanding that
      neither the union making it nor its members are „intent on obtaining forthwith every
      item which is mentioned in the log of claims or the particular terms and conditions of
      employment in the form and in the amounts in which they are expressed in the log.‟

      Given the doctrine of ambit and given that there is nothing inherently artificial about
      written demands, or „paper disputes‟, it will not often be the case that a written
      demand with respect to the wages or conditions of employees will be other than a


                                            17
genuine demand. Generally speaking, and whether the question falls for decision in
this Court or in the Commission, a demand, as to the wages or conditions of
employees made by an organisation of employees and authorised by its rules and in
accordance with its procedures, will be treated as a genuine demand unless it is
plainly fanciful or unless it appears that the demand was made merely to dress up
some other claim which, on its own, would not constitute a dispute as defined in s.4(1)
of the Industrial Relations Act 1988 (Cth) (the Act).

The question whether a claim is properly described as fanciful is one that can only be
answered in the light of general industrial standards and general patterns of industrial
regulation. These are matters peculiarly within the experience and expertise of the
Commission and, thus, this Court accords considerable weight to its findings with
respect to the genuineness of demands and the existence or otherwise of a dispute
arising out of those demands.

Notwithstanding that the Commission found there was a dispute arising out of the log
of claims involved in the SPSF matters, there are features which indicate that its
demand, if read according to its terms, is, in truth, fanciful. The notion of weekly
earnings of $7,500 for all employees, regardless of skill, qualification, or the nature of
the work performed, is one that is at odds with established wage fixing principles.
And, unless one subscribes to some extravagant, post-modern notion of equal pay
involving the same rate of pay regardless of the work or the worker concerned, it is
one that is at odds with those general theories and concepts that fashion those
principles. Nor is the claim explicable as an ambit claim in which there is some in-
built allowance for inflation for the claim contains an express stipulation that wages
and allowances should be adjusted for cost of living increases. These matters
persuade us that the demand, if read strictly according to its terms, must be treated as
fanciful and, hence, not a genuine demand.

Given that the matter has been pursued this far, presumably at considerable expense,
it is reasonable to assume that SPSF is pursuing some more realistic claim than the
one that emerges from a strict reading of its demand. In our view, it is reasonable to
assume that SPSF's claim is for increased wages and allowances as determined by the
Commission. It is also reasonable to assume that it would have been so understood by
those bodies on whom it was served. On that basis, it is necessary to consider whether
a bare claim for increased wages and conditions as determined by the Commission
gives rise to an industrial dispute as defined in s.4(1) of the Act.

There are two interrelated matters that serve to indicate that a bare claim for
increased wages and allowances as determined by the Commission is not a claim that
gives rise to an industrial dispute. The first is that the Commission is not a general
regulatory body. It is a tribunal established for the conciliation and arbitration of
disputes. The existence of a dispute as defined in s.4(1) of the Act „is basic to [its]
jurisdiction‟. Its regulatory powers are activated only in consequence of a dispute and
only with respect to the matters in dispute. A bare claim that employees should be paid
increased wages and allowances as determined by the Commission is, in effect, a
claim that the Commission should have general regulatory powers with respect to the
wages and allowances of those employees.

The Commission has only those powers that the Act confers upon it. It is well settled
that a claim that it should have other or additional powers is not a claim that is „about
matters pertaining to the relationship between employers and employees‟ as required


                                       18
      by the definition of „industrial dispute‟ in s.4(1) of the Act, no matter that the powers
      in question, if exercised, might affect matters pertaining to that relationship. Thus a
      claim that the Commission should have or should exercise general regulatory power,
      whether made in terms which predicate an improvement, a reduction or, even,
      maintenance of existing wages and conditions, is not a claim that gives rise to an
      industrial dispute as defined in s.4(1) of the Act. That is not to deny that there may be
      circumstances involving a bare claim of that kind amounting to an industrial dispute
      as defined in s.4(1) of the Act - particularly, if regard is had to that part of the
      definition that speaks of „a situation that is likely to give rise to an industrial dispute‟.
      But in that event, it will be the overall circumstances that constitute or give rise to the
      dispute, not merely the rejection of a claim for wages or conditions as determined by
      the Commission.

      The second matter that indicates that a bare claim for increased wages and
      allowances as determined by the Commission does not give rise to an industrial
      dispute is that the assent or dissent of employers is entirely irrelevant to what is
      demanded. Indeed, the claim proceeds on that very basis. And assuming jurisdiction
      were thus attracted, increases awarded by the Commission would take effect by virtue
      of the Act and quite independently of the assent of the employers concerned. The
      irrelevance of the assent or dissent of employers flows from the assumption which is
      embedded in the claim, namely, that the Commission has or may acquire general
      regulatory power as the result of a claim of the kind under consideration. The validity
      of that assumption is denied by the decisions of this Court in which it has been held
      that a demand as to a matter on which assent or dissent is irrelevant may give rise to
      „a contrariety of opinion‟, but does not give rise to a dispute.

      We would read the log of claims as involving a claim for increased wages and
      allowances as determined by the Commission. However, and as already indicated, a
      claim of that kind does not give rise to an industrial dispute as defined in s.4(1) of the
      Act. That is sufficient to entitle the prosecutors in the SPSF matters to the relief which
      they claim.” (references have been omitted).

[15] The majority of the High Court in Electrolux Home Products Pty Ltd v Australian
Workers‟ Union [2004] HCA 40 (2 September 2004) (Electrolux) held, as summarised by
Vice President Ross in Re KL Ballantyne & National Union of Workers (Laverton Site)
Agreement 2004 (PR852656 at [9]):

      “In Electrolux the majority of the High Court (Gleeson CJ, McHugh, Gummow,
      Hayne, Callinan and Heydon JJ) decided three issues:

      1. The bargaining agent‟s fee claim is not “about matters pertaining to the
      relationship between an employer … and all persons who … are employed in a single
      business … of the employer” within the meaning of s.170LI.

      2. Section 170LI only permits the certification of an agreement where all of the
      terms of the agreement are about matters pertaining to the employment relationship.

      3. Industrial action taken by a union in support of claims in respect of a proposed
      agreement is not „protected action‟ within s.170ML(2)(e) if one of the claims does not
      pertain to the employment relationship.”




                                              19
[16] It appears to be fundamental to Wise’s objection to the finding of an industrial dispute
in this matter that a number of matters in the CPSU log of claims are not “matters
pertaining” to the employment relationship as required by the definition of “industrial
dispute” in s.4(1) of the Act. There appears no reason not to apply the reasoning of the High
Court in Electrolux regarding the meaning of the words “matters pertaining” to the
relationship between employers and employees in s.170LI of the Act to the use of those words
in s.4(1) of the Act. In Electrolux the High Court found that a bargaining agent’s fee clause
was not a matter pertaining and that the mere inclusion of such a non-pertaining clause in an
agreement precludes it being certified by the Commission pursuant to the provision of s.170LI
and other of that Part of the Act. The question arises whether, if even one item in the log is
about a non-pertaining matter, the log cannot be the subject of a finding of an industrial
dispute by the Commission.

The disputed provisions in the CPSU log of claims

[17] The nine provisions in the CPSU log of claims which Wise disputes pertains to the
employment relationship are:

   1) Clause 2.7(c):

       2.7 Employees, are entitled to free first class air travel where:

       (a) they are required to travel on duty
       (b) they are stationed in certain localities and travel on annual leave; or
       (c) they take up employment in another town, as a result of being retrenched,
       appointed or transferred.

       Those in the third category will also have the costs of removal paid.

   2) Clause 3 (ix):

       3. ALLOWANCES

       The employer shall make additional payments for the following allowances to
       employees of amounts determined by the union, but no less for the following amounts:
       …
       (ix) recreation leave fares; where an employee lives in a remote location or in an
       overseas location three first class leave fares will be provided to the employee each
       year. An additional allowance equivalent to the cost of first class fares, for each
       member of the employees family will be paid to the employee.

   3) Clause 9:

       9.. CONTRACTORS

       (a) Where contractors or consultants are employed or contracted:

       (b) The employer shall ensure that any contractor and/or subcontractor and/or any
       other person engaged by the employer on work covered by this Claim shall pay to the
       employees of the contractor or subcontractor or other person the wages and
       conditions contained in this Claim.



                                              20
4.     Clause 14:

     14. TRAVEL AND WORK RELATED EXPENSES.
     (a) Employees are to be paid excess travelling time for travel to and from any
     workplace that exceeds time spent travelling to and from the designated workplace.
     (b) Employees, are entitled to free first class air travel where:
     (i) they are required to travel on duty
     (ii) they are stationed in certain localities and travel on annual leave; or
     (iii) they take up employment in another town, as a result of being retrenched,
     appointed or transferred.
     Those in the third category will also have the costs of removal paid.
     (c) Employees shall be reimbursed by the employer for all expenditure arising out of
     their appointment or employment.

5.     Clause 16 (a):

     16. WORK ENVIRONMENT AND OCCUPATIONAL HEALTH & SAFETY

     (a) The employer will provide workplace accommodation, furniture, lighting and
     amenities to a standard determined by the union. Where this standard is not met the
     employer will take such action as necessary, including relocation, in consultation with
     the union to ensure that the standards are met. If the standard cannot be met, and
     employees are not suffering from an OH&S risk, the employer will pay the employees
     a $20 an hour allowance until the standard is met.

6.     Clause 18:

     18. HEALTH INSURANCE
     The employer shall pay an allowance to each employee equivalent to the cost of health
     insurance for a family, covering insurance for hospital, medical and dental treatment.

7.     Clause 19:

     19. CHILDCARE
     (a) The employer shall pay an allowance to employees equivalent to the cost of any
     child care expenses incurred by the employee.
     (b) The employer shall provide such amenities or facilities to employees, as
     determined by the union delegate, that meet the needs of employees who are parents of
     young children. Without limiting the above, this may include the provision of change
     and feeding room at the workplace.

8.     Clause 22:

     22. UNION CONSULTATION AND FACILITIES
     (a) A Consultative Council shall be established between the employer and the union
     with meetings to be held every three months. The employer shall provide the union full
     information on the activities of the enterprise including such matters as investment,
     technological and organisational change, levels of employment, profitability, financial
     data including details of the employer‟s past activities. The employer shall be
     responsible for the travelling and accommodation expenses of the union
     representatives who are employees of the employer and for providing them with
     facilities equal to those enjoyed by the employer‟s representatives. No changes to any


                                           21
     condition of service shall be made without reference to the Consultative Council and
     the explicit approval of the union delegates.
     (b) Where the employer seeks to classify or reclassify designated positions or to make
     outside appointments, the employer shall consult the union and a committee is to be
     established to handle each case, consisting of two persons nominated by the employer
     and four by the union.
     (c) A record showing the hours worked and the salary paid to each employee shall be
     maintained by the employer and open to inspection on demand by the union.
     (d) A notice board shall be erected by the employer in an accessible and prominent
     position at each workplace for the exclusive purpose of the union delegates displaying
     union notices for the information of employees. The employer shall keep an up to date
     copy of any award relevant to employees posted on the notice board.
     (e) The employer shall provide the union delegates unconditional access to the
     employer‟s electronic mail system for the purposes of transmitting union information.
     (f) A Board of Reference shall be constituted at the behest of either the union or the
     employer to settle disputes, consisting of three representatives nominated by the union,
     one nominated by the employer, and one being the Industrial Registrar who shall act
     as Chair.
     (h) An accredited union representative shall have right of entry to any place or
     premises where employees are working at any time during normal working hours,
     including each shift, or when overtime is being worked, for the purpose of holding
     meetings, interviewing employees.
     (i) The employer shall provide each workplace delegate, each deputy delegate and any
     other union representative employed by the employer and who is nominated by the
     union such facilities as they request including (but not limited to):
          (i) a lockable office of 30 square metres with furniture to a standard determined
          by the union.
          (ii) a lockable filing cabinet.
          (iii) access to meeting rooms and conference facilities.
          (iv) a fax machine with STD access.
          (v) a loudspeaker phone with STD-access.
          (vi) a photocopy machine.
          (vii) access to, and training in, the use of relevant electronic mail systems.
          (viii) a personal computer with access to relevant software, manuals printers and
          other peripheral equipment.
     (j) That any member of the union be granted leave with full pay to attend to union
     meetings and/or any trade union training course nominated by the union, or to
     perform work for the union or a council of trade unions in elected or non-elected
     positions.
     (k). That workplace delegates and deputy workplace delegates receive paid leave to
     carry out their union duties and to attend such courses, conferences and meetings as
     the union deems necessary. These union representatives shall be allowed without loss
     of pay, leave of 30 hours per week to attend to union business.
     (I). Employees shall be granted paid leave to attend union meetings during working
     hours.

9.     Clause 32:

     32. AMENITIES

     32.1 Luncheon Room



                                           22
(a). Each respondent shall provide in each office or place of business conducted by it,
a luncheon room of size adequate for the accommodation of all employees.
(b) Such luncheon room shall contain the following items, as a minimum:
Refrigerator, stove, water cooler, tea & coffee making facilities, sufficient table &
chairs to accommodate employees, sufficient cutlery and crockery, telephone, tea,
coffee, milk, dishwashing liquid, sugar, artificial sweetener, drinking chocolate and
biscuits.

32.2 Recreation Room
(a) Each respondent shall provide in each office or place of business conducted by it,
a separate recreation room for the use of employees in free time.
(b) Such recreation room shall be appropriately decorated and furnished.

32.3 Rest Room/First Aid Room
(a) Each respondent shall provide in each office or place of business conducted by it a
separate first aid/rest room which is suitably located and convenient of access, well lit
and ventilated and readily accessible to sanitary accommodation.
(b) Each such rest room/first aid room shall contain a bed/couch with blankets and
pillows, a fully equipped and maintained first aid kit, the contents of which are defined
in sub-clause 32.5 hereof, and a list of emergency telephone numbers (doctors,
ambulance, clinic, hospital), which shall be prominently displayed.

32.4 First-Aid Room (10 employees or more)
(a) Each respondent shall provide in each office or place of business conducted by it,
in which 10 or more employees are employed, a separate first-aid room which is
suitably located and convenient to access, well lit and ventilated, readily accessible to
sanitary accommodation and shall have a minimum floor space of 14 square metres.
The entrance to a first-aid room shall be clearly marked “first-aid”.
(b) Each such first-aid room shall contain the following minimum equipment:
     (i) sink and basin with hot and cold water supply;
     (ii) work bench or dressing trolley;
     (iii) cupboard for storage of medicaments, dressings, utensils and linen;
     (iv) two beds/couches with blankets and pillows;
     (v) one armchair, two upright chairs and a moveable screen;
     (vi) desk with telephone;
     (vii) a fully equipped and maintained first-aid kit, the contents of which are
     defined in sub-clause 32.5 hereof;
     (viii) a list of emergency numbers, prominently displayed.

32.5 First-Aid Kit

(a) First-aid kits shall be kept stocked by the employer with first aid supplies in
accordance with the list of basic minimum requirements set out in Industrial Safety
Code Regulations, made pursuant to the relevant Stage Legislation. First-aid kits shall
be kept clean at all times. A list of the required contents of a kit shall be attached to
the inside lid of the kit.
(b) First-aid kits shall be provided on the basis of one to every 50 employees or pan
thereof and shall be located in a prominent and well-lit place, where not located
specifically in a first-aid room.
(c) Where the place of business of a respondent employer is located in an office block,
a separate first-aid kit shall be provided on every floor.



                                      23
        32.6 First-Aid Attendant

        The union delegate shall nominate an employee for each 10 employees as a First Aid
        Attendant. On production of the relevant certificate such an employee shall receive an
        additional $ 80.00 a week. If the employee does not have the relevant certificate the
        employer shall pay an additional $20.00 per week whilst the employee undertakes the
        necessary training to gain the certificate. This training shall be on paid leave and the
        cost of training borne by the employer.

[18]    Wise also submits that:

   1. Clauses 9, 10, 15, 16, 18-26, parts of clause 27, 29, 30, 31A, 33, 34 and 35 of the
      amended log fall outside of the definition of “allowable matters” (Wise 1 para 5);
   2. References to “union delegate” in the amended log should be qualified in that it must
      be an employee of the employer and employed at the workplace (Wise 1 para 4);
   3. As to clause 32 the object is vague or uncertain (Wise 3, para 26);
   4. As to clause 2.7(c) and cl 3(ix) the object is vague or uncertain (Wise 2 para 2);
   5. As to clause 16(a) and clause 32 the object is uncertain or indefinable or unknowable
      (Wise 2 para 3).

[19] Having considered the submissions of the parties and the findings of the High Court in
Electrolux and the decision by the Full Bench of this Commission in Re s.45 Appeal
Schefenacker Vision Systems Australia Pty Ltd and others (PR956575) I find that:

   1.     clause 2.7(c) of the amended log does pertain to the relationship between employers
          and employees within the meaning of s. 4(1) of the Act because it clearly pertains to
          the employee either travelling on duty in the course of the employee’s employment
          or as part of a process of redundancy arising from their employment with the
          employer.

   2.     clause 3(ix) of the amended log does pertain to the relationship between employers
          and employees within the meaning of s. 4(1) of the Act because it clearly pertains to
          an employee posted to either a remote or overseas location for the purpose of
          assisting the employee in relocation costs related to his or her own and members of
          his or her family going on leave from remote or overseas locations to which the
          employer has posted the employee.

   3.     consistent with the decision of the Full Bench in Schefenacker at [71] and [83],
          clause 9 of the amended log does pertain to the relationship between employers and
          employees within the meaning of s. 4(1) of the Act because “it directly concerns the
          security of employment of the employee covered by” the award.

   4.     clause 14 of the amended log does pertain to the relationship between employers
          and employees within the meaning of s.4(1) of the Act because it clearly pertains to
          an employee’s travel arising from his employment relationship with the employer,
          and the fact of retrenchment is a matter relating to the employment relationship.

   5.     clause 16(a) of the amended log does pertain to the relationship between employers
          and employees within the meaning of s. 4(1) of the Act because workplace
          accommodation, furniture, lighting and amenities are all matters clearly of relevance
          to the employee in the workplace environment to be provided by the employer.



                                              24
   6.     clause 18 of the amended log as to health insurance does not pertain to the
         relationship between employers and employees within the meaning of s.4(1) of the
         Act because the overall health of an individual is not a matter that pertains to the
         employment relationship, as opposed to matters that impact on the health of an
         employee in the workplace which would pertain. The extrapolations out to health
         insurance costs relating to the family members of individual employees only takes
         this matter so much further from the requisite relationship.

   7.    clause 19 of the amended log as to childcare does not pertain to the relationship
         between employers and employees within the meaning of s.4(1) of the Act because
         it is not clear that the requirement for childcare arises from the employee’s
         employment with the employer.

   8.    clause 22 of the amended log does not pertain to do the relationship between
         employers and employees within the meaning of s.4(1) of the Act, taking into
         account the decision of the Full Bench in Schefenacker at [93] – [132]. At [119] of
         that decision, the Full Bench held that: “In applying Archer we think it should be
         confined to a right of entry for the purpose of ensuring the observance of the award
         and other matters related to the employment.” Clause 22 of the amended log is not
         confined in this manner and cannot be said to pertain to the relationship between
         employer and employees in the manner required by s.4(1) of the Act.

   9.    clause 32 of the amended log pertains to the relationship between employer and
         employees within the meaning of s. 4(1) of the Act because all of the amenities
         referred to in clause 32 relate to the environment, facilities, amenities and services
         available to employees as employees in the workplace of the employer.

[20] I further find that each of the following provisions of the amended log is covered by
the definitions of allowable matters in s.89A of the Act, specifically: clause 2.7(c), clause
3(ix), clause 14, under s.89A(2)(e),(j) and (m) of the Act. The other matters are not covered
by the definition of allowable matters in s.89A(2) of the Act. I follow the decision of Vice
President Ross in ASU v Cab Australia Pty Ltd & Ors (N92221); (1997) 41 AILR 3 that
“s.89A of the Act does not limit the Commission's capacity to find that an industrial dispute
exists.” Nor does it operate “to limit the subject matter of any dispute which the Commission
may find exists to the allowable award matters referred to in s.89A(2).”

[21] Whilst it is argued by Wise that an industrial dispute cannot be found to exist in
relation to a log of claims that contains matters that do not pertain to the relationship between
employer and employee, I believe this argument cannot be sustained. A draft agreement
cannot be certified pursuant to s.170LI for this reason, and by analogy a draft award cannot be
put in place by the Commission if it contains non-allowable matters and/or non-pertaining
matters. However, that is a different situation than the one which presents itself in this case.
The amended log contains a range of matters which pertain to the relationship between
employers and employees. It also contains several matters which I find do not pertain to the
relationship between employers and employees. The mere existence of those several non-
pertaining matters do not preclude the finding of an industrial dispute between CPSU and
Wise in relation to the amended log. This accords with the reasoning of Vice President Ross
in ASU v Cab Australia Ltd and with Vice President Lawler in Finance Sector Union and
CommSec Trading Ltd (PR960317, 20 July 2005). In this latter decision Lawler VP at [124]
held that: “True it is that claims in a log that are not about matters that pertain to the
relationship between employers and employees cannot be the subject of an „industrial
dispute‟. However it is a logical fallacy to conclude that, because a log contains claims about


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such matters, the service and rejection of the log cannot give rise to an „industrial dispute‟
within the meaning of s.4(1) of the Act in relation to those claims within the log that are about
matters that so pertain. The Commission has long approached the dispute finding process on
the basis that „offending‟ clauses in a log of claims can be severed without rendering the
dispute finding process invalid and the Full Bench has, on occasions, excised a particular
claim or claims from a dispute finding but allowed the remainder of the dispute finding to
stand.1 In those cases the Full Bench has implicitly proceeded on the assumption that an
“industrial dispute” can be found within the meaning of s.4(1) notwithstanding that the log
contains claims about non-pertaining matters.”

[22] As to whether in the present case, apart from those matters that I find do not pertain to
the relationship between employer and employee in their capacity as such, there exists a
“genuine dispute” as considered by Mason CJ, Deane and Guadron JJ in Re SPSF, I do not
find that the remaining matters the subject of the amended log are fanciful in the light of
general industrial standards so as to render the amended log “fanciful” or “at odds with
established wage fixing principles” as considered by Their Honours in Re SPSF.

[23]       As to the matter referred to in [18] above:

      1.   the fact that some matters in the amended log fall outside the definition of
           “allowable matters” does not preclude the finding of the existence of an industrial
           dispute;
      2.   the objection posed by the respondent does not preclude the finding of the existence
           of an industrial dispute;
      3-5. I do not find that the object of clause 2.7(c), 3(ix), 16(a) and 32 are vague or
           uncertain or indefinable or unknowable.

Finding

[24] Accordingly I find there exists between the CPSU and Wise an industrial dispute
within the meaning of s.4(1) of the Act, being a dispute arising from the service and non-
acceptance of the log of claims, that dispute being confined to those claims in the log that are
about matters that do pertain to the relationship between employer and employee in their
capacity as such or that are properly incidental or ancillary to matters that do so pertain.

BY THE COMMISSION:



COMMISSIONER

Appearances:
Ms L. Andelman for CPSU, the Community and Public Sector Union.
Mr T. Donaghey of Counsel for Wise Employment.

Hearing details:
2005.
Melbourne:
July 19.


1
    See, for example, Lamsoon Australia v SDAEA (1995) 67 IR 76

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Cases:

ASU v Cab Australia Pty Ltd & Ors (N92221); (1997) 41 AILR 3
Electrolux Home Products Pty Ltd v Australian Workers‟ Union [2004] HCA 40 (2
September 2004)
Finance Sector Union and CommSec Trading Ltd (PR960317, 20 July 2005)
Re KL Ballantyne & National Union of Workers (Laverton Site) Agreement 2004 (PR852656)
Re s.45 Appeal Schefenacker Vision Systems Australia Pty Ltd and others (PR956575)
Re SPSF; Ex p A-G (WA) [1993] 48 IR 241

Decision Summary


                     Wages and conditions – log of claims – dispute finding – matters pertaining –
                     allowable matters – local government and administration – CPSU served log on a
                     number of employers – later agreed not to press some claims which may not pertain
                     to employment relationship – respondent submitted nine remaining claims did not
                     pertain or were not allowable matters – clauses relating to provision of first class air
                     travel, payment of recreation leave fares, various travel and work related expenses,
                     requirement to ensure contractors pay award rates, OH&S standards and provision
                     of staff amenities do pertain – clauses relating to health insurance allowance,
                     childcare allowance and union consultation and facilities do not pertain – first class
                     air travel and travel related expenses are allowable matters – others matters not
                     allowable but this does not prevent dispute being found – dispute found regarding
                     matters in log except those found not to pertain.

CPSU, the Community and Public Sector Union and Wise Employment

C2004/6736                                                                                      PR961583
Grainger C                                    Melbourne                                     19 August 2005




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