Held, AWA does not operate to exclude a Union's right to investigate a suspected breach of industrial laws or industrial instrument - rights of authorised officers not rights of employees - AWA cannot exclude other rights - relevance of CFMEU v Newcrest decision - insufficient material to be satisfied no breach exists - not enough to produce AWA receipts from Office of Employment Advocate or template document - unnecessary to determine whether lacuna exists in coverage - Union's case substantially made out - orders appropriate - orders made requiring access to time and wages records and other relevant documents.

Industrial Relations Act 1996 LEGISLATION CITED: Workplace Relations Act 1996 (Cth) AWARD Meter Readers and Field Officers (State) Award 353 IG 522

CASES CITED: CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23

NOTIFIER Mr N Rudd, Industrial Officer Australian Workers' Union, New South Wales (Technical, Administrative, Professional and Staff Branch) LEGAL REPRESENTATIVES: RESPONDENT Mr M Diamond, Agent McCarthy Ausgroup Pty Ltd

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM : SAMS, DP 4 May, 2006 Matter IRC05/6315 Notification under s130 by the Australian Workers' Union, New South Wales (Technical, Administrative, Professional and Staff Branch) of a dispute with Skilltech Consulting Services Pty Ltd re breach of right of entry provisions

DECISION [2006] NSWIRComm 148 1 On 5 December 2005, the Australian Workers' Union, New South Wales (Technical, Administrative, Professional and Staff Branch) ('the Union') notified the Commission of a dispute with Skilltech Consulting Services Pty Ltd ('the Company'). 2 The notification of dispute, pursuant to s130 of the Industrial Relations Act, 1996 ('the Act') described the matter in the following terms: The dispute is between The Australian Workers' Union, New South Wales ("the Union") and Skilltech Consulting Services Pty Ltd ("the Company"). On 1 December 2005, the Union forwarded correspondence to the Company indicating a proposed time and wages book inspection concerning alleged breaches of the Meter Readers and Field Officers (State) Award. On 2 December 2005 the Union received correspondence that the Company was going to refuse the Union right of entry as it alleges it employs employees under Australian Workplace Agreements. The Union claims even if an employee is on an AWA it does not take effect until approved by the Employment Advocate. In the interim period, the Award has effect, in particular, the requirements of Clause 41, Union Representation. The Union claims the Company has breached right of entry provisions as the Award does have application and the Union is seeking to investigate alleged breach of the Award. 3 Compulsory conferences were listed on three occasions (9 and 16 December 2005 and 1 February 2006). However, as no settlement of the dispute was able to be achieved, the Commission issued a certificate of attempted conciliation (s135 of the Act) and issued directions in preparation for the arbitration of the dispute. 4 At this point, I would observe that there was very little factual contest between the parties and the matter proceeded by way of submissions and relevant documentation. Both parties helpfully provided outlines of contentions which I now reproduce below: The Union's Case

5 Outline of Contentions 1. In these proceedings, The Australian Workers' Union, New South Wales (the AWU) seeks orders for access to time/wages records and any relevant documents of workers employed by Skilltech Consulting Services Pty Ltd (Skilltech). 2. The AWU is a party to the Meter Readers and Field Officers' (State) Award (the Award). 3. Skilltech is a company which employs workers who perform duties covered in the Area, Incidence and Duration Clause of the Award. 4. Pursuant to s.298 of the Industrial Relations Act NSW (NSW Act), the AWU forwarded correspondence to Skilltech on 1 December 2005 seeking access to time/wages records of employees who perform work covered by the Award. 5. On 2 December 2005, the AWU received correspondence from Skilltech indicating they were not going to provide access to the AWU because they engaged their employees under Australian Workplace Agreements (AWA's) and accordingly, s.298 of NSW Act had no relevance. 6. The AWU argues that in all likelihood, Skilltech has been breaching the Award. This view is particularly based on 2 Award provisions. 7. Firstly, Clause 39. Piecework Rates of the Award, requires that piecework rates may only be fixed by registered agreement between the employer and a majority of employees and the Secretary of the union. The AWU is aware the majority of meter readers are engaged on a piecework rates (sic). Skilltech has no such agreement with the AWU. 8. Secondly, Clause 41. Union Representation of the Award provides for the AWU to be notified by 1 working weeks notice of new employees and to be given 30 minutes to talk to the new employees. Further, the employer is required to supply a union application form to employees when they are providing the taxation declaration form. It is the AWU's contention this has not occurred. 9. The AWU does have member(s) with Skilltech, but it is suggested that it is not relevant for the purposes of s.298 of the NSW Act. 10. The AWU claims that Skilltech has denied a legal right of the AWU, that being s.298 of the NSW Act. The purported existence of AWA's does not extinguish the right of the AWU to investigate a suspected breach of the Award. Further, it is argued that even if Skilltech does have AWA's operating to the exclusion of the Award, it is a right under s.298 for the AWU to ascertain this for themselves. 11. The AWU alleges that even if Skilltech has AWA's in place, it would have been in breach of the Award at some point. S.170VPA Additional Approval requirements for AWA and ancillary documents under the Workplace Relations Act 1996 (WR Act) state that it is a mandatory requirement for an employer to receive the AWA for 5 days for a new employee and 14 days for an existing employee, before an AWA is approved. 12. Under Section 170VJ Period of Operation of AWA of WR Act means that it is possible that either new or existing employees may not have been covered by the AWA for a period of time. As such, the Award would have effect before the AWA was approved. 13. The AWU contends there is no restriction on the ability of the NSW Industrial Relations Commission to make an order granting access to relevant documents and time/wages records, even if AWA's are in place. In CFMEU Newcrest Mining Limited [2005] NSW IR Comm 23 at paragraph 68, the Full Bench ruled "The Corporation's power is not a power that outlines laws the effect of which would be to extinguish the power of a State Industrial Authority to make common rule awards or exercise its conciliation and arbitration powers to resolve an industrial dispute merely because of the existence of AWA's". 14. The AWU is seeking an order to the effect it be granted access to time/wages records and any relevant documents of employees of Skilltech who perform work covered by the Award. SUBMISSIONS

6 Mr Rudd for the Union tendered an exchange of correspondence between the Union and the Company. These letters were in the following terms: Dear Sir/Madam Investigating Breaches - Meter Readers and Field Officers (State) Award We advise that pursuant to section 298 of the NSW Industrial Relations Act, Mr Nathan Rudd and Mr Jeff Byrne, being authorised industrial officers of the Union, will be conducting an investigation into alleged breaches of the Meter Readers and Field Officers (State) Award at your premises on Tuesday 6 December 2005 at 12.00pm. The nature of the investigation relates to alleged breaches of the above mentioned award, in particular, Clause 39, Piecework Rates and Clause 41 Union Representation. As part of this investigation, we require all time and wages records and any other relevant documents covering employees within the area, incidence and duration clause of the award, to be produced for our inspection. We request access to a photocopying machine if this is necessary as a result of the investigation. Please direct any questions to Nathan Rudd on 92646299.

Respondent's reply Dear Nathan, Re: Skilltech Consulting Services Pty Ltd We act for Skilltech Consulting Services Pty Ltd and we have been given a copy of your letter of 1 December last addressed to our client. Skilltech instructs us that all its staff in New South Wales are employed on current Australian Workplace Agreements approved by the OEA. That being the Case the provisions of S. 298 of the Industrial Relations Act 1996 (NSW) and the Meter Readers and Field Officers (State) Award have no application to our client or its employees. For this reason our client is not able to supply the records you have requested. Yours faithfully, Mark Diamond - McCarthy Ausgroup Pty Ltd

7 Mr Rudd also relied on two provisions in the Meter Readers and Field Officers (State) Award which are expressed as follows: Clause 39 Piecework Rates Piecework rates may only be fixed by registered agreement between the employer and majority of employees and the Secretary of the Union. Clause 41 Union Representation Properly accredited officials and workplace delegates of the Union shall have the right to be provided with appropriate access to employees to promote the benefits of willing union membership. To assist this process the employer shall: (i) Provide the Union with one working weeks notice before the appointment of a new employee and provide the union with access to talk to new employees for 30 minutes at an agreed time and; (ii) Supply all employees with a union application form at the same time as employees are provided with their taxation declaration form. 8 Mr Rudd asserted that the Union has at least one member at the Company. Nevertheless this was not necessary, for the purposes of s298 of the Act, as a relevant employee is defined as someone who may be eligible for membership. 9 Mr Rudd submitted that the mere existence of a Federal AWA doesn't mean that the AWU cannot satisfy itself that there has, or has not been a breach of s298 of the Act. In support of this proposition Mr Rudd relied on and quoted from CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23. 10 Mr Rudd further submitted that even if it was established that AWAs were in place, the process of registering the AWAs would suggest there may be a period of time before they take effect in which the Award may have been potentially breached. The Company's Case

11 Outline of Contentions In this case the AWU seeks access to time and wages records of Skilltech based on an argument (per Clause 11 and 12) of the Outline of Contentions that it is "possible" that either a new or existing employee may not have been covered by the AWA for a period of time. In the alternative the AWU argues that an order under S.298 of the Industrial Relations Act 1996 (NSW) can be made notwithstanding the coverage of the AWA. Skilltech's argument is as follows: 1. Skilltech has its employees covered by an AWA. 2. S. 170VQ (4) of the Workplace Relations Act 1996 (C'lth) states that: "During its period of operation an AWA operates to the exclusion of any State award that would otherwise apply to the employee's employment". 3. The argument of the AWU is based firstly on an allegation that the Meter Readers and Field Officers (State) Award has been breached by Skilltech. 4. An order under S.298 cannot be made in respect of any employer who is not covered by a State award or State agreement. 5. Skilltech by the operation of S. 170VQ (4) of the Workplace Relations Act 1996 (C'lth) is excluded from the operation of the State award and therefore no order can be made under S.298. 6. There is a tenuous suggestion in Clause 11 of the AWU's Outline of Contentions that it is "possible" an employee of Skilltech may not be covered by the Skilltech AWA for a period of time. 7. The Commission ought to make an order under S.298 where such an order is sought to be grounded on such a tenuous possibility. Skilltech submits its AWAs for approval under the scheme of the Workplace Relations Act 1996 (C'lth) and as such is entitled to rely on the provisions of that legislation. 8. The current application by the AWU lacks any merit or substance whatsoever. It is an opportunistic attempt to exploit a perceived lacunae in the operation of S. 170VQ but Skilltech says no such lacunae exists. 9. It is the Respondents belief that the application by the AWU is a disguised attempt to obtain from Skilltech a list of its employees whom the AWU would then intend to pursue for membership. In these circumstances what the AWU should do is visit the employees on the job and recruit properly rather than resort to misuse of the processes of this Commission and the provisions of S.298 of the Act. 12 During submissions, Mr Diamond proposed that one means of convincing the Union that Skilltech employees are covered by AWAs, was to produce the receipts issued by the Office of the Employment Advocate in respect of each AWA. The Company could also produce a template of the AWA which is signed by all the employees. 13 Mr Diamond maintained that the Union's case was not assisted at all by reliance on CFMEU v Newcrest. The proposition here is that there is a suspected breach of the Award. Mr Diamond said that as an AWA operates to the exclusion of the Award, there can be no breach of the Award. Mr Diamond added that there was no automatic right under s298 of the Act to have access to time and wages records. 14 Mr Diamond addressed the Union's argument that the Award would still apply between the signing of an AWA and its receipt acknowledgement by the Office of the Employment Advocate. He said an AWA commences operation either on the date of the receipt, the day specified in the AWA or the date employment commences. 15 In reply, Mr Rudd said that the mere production of the AWA receipts will not prove what the AWA contains nor would the production of a template AWA be sufficient to convince the Union that there has been no breach of the Award. 16 After the adjournment of proceedings, Mr Diamond provided copies of the AWA receipts from the Office of the Employment Advocate and a template agreement. Mr Rudd put a further submission in which he said that the material provided by the Company only highlighted the Union's concerns that there had been a breach of the Award. CONSIDERATION

17 It is necessary to detail the relevant sections of the State and Federal legislation.

18 Section 298 (1) - (3) of the Act is in these terms: 298 Right of entry for investigating breaches (1) An authorised industrial officer may enter, during working hours, any premises where relevant employees are engaged, for the purpose of investigating any suspected breach of the industrial relations legislation, or of any industrial instrument that applies to any such employees. (2) For the purpose of investigating any such suspected breach, the authorised industrial officer may: (a) require any employer of relevant employees to produce for the officer's inspection, during the usual office hours at the employer's premises or at any mutually convenient time and place, any employees' records and other documents kept by the employer that are related to the suspected breach, and (b) make copies of the entries in any such records or other documents related to any such suspected breach. (3) An authorised industrial officer must, before exercising a power conferred by this section, give the employer concerned: (a) at least 24 hours' notice, except as provided by paragraph (b), or (b) in respect of any requirement to produce records or other documents that are kept elsewhere than on the employer's premises - at least 48 hours' notice. 19 Relevant employee is defined as: 296 Definitions (1) In this Part: ... relevant employee , when used in connection with the exercise of a power by an authorised officer of an industrial organisation, means an employee who is a member of the organisation or who is eligible to become a member of the organisation. 20 Section 302 defines the power of the Commission under this part: 302 Powers of Commission The Commission may deal with an industrial dispute about the operation of this Part, but does not have any jurisdiction to make an award or order conferring additional or inconsistent powers of entry or inspection. The Federal Legislation

21 Section 170 VQ(4 ) of the Workplace Relations Act states that: During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment.

22 In my view, this is not a case about whether an AWA operates to the exclusion of a State award. Rather, properly characterised this case concerns whether an AWA operates to exclude a Union's right to investigate a suspected breach of industrial relations legislation, or of an industrial instrument that may apply to any relevant employee (as defined). 23 It seems plain enough, that s 170 VQ(4) of the Workplace Relations Act, expressly applies to the terms and conditions of the employee's employment such as to exclude the terms of a State award that would otherwise apply to the employee's employment where an AWA is in place. However, viewed in the way described above, it seems to me that the language of the section cannot be so wide or so strained as to operate to exclude the rights of registered industrial organisations and their authorised officers which are otherwise provided for under the New South Wales legislation, such as those rights identified in s298. 24 These rights are not analogous to the terms and conditions of the employee's employment. These are not the rights of the employees, but rather are rights of an authorised industrial officer of a registered organisation. Thus, I cannot conceive how it is possible to invoke the exclusion provisions of s 170 VQ(4) of the Federal Act for persons who are most certainly not employees. 25 Of course, the only way an authorised industrial officer can be satisfied as to a breach or otherwise of an industrial instrument is by the production of the employees' records and other documents kept by the employer which are related to the suspected breach. In my view, it is not enough to simply produce receipts of AWAs being registered by the Office of the Employment Advocate or a template document purporting to be the actual content details of the AWA. This may prove only that an AWA exists, not that there hasn't been a breach of relevant legislation or any industrial instrument that applies to any relevant employee. 26 In addition, I do not accept Mr Diamond's submission that CFMEU v Newcrest is irrelevant to the issue to be determined in this case. While it is obvious that that case dealt with Pt 1 ch 3 of the Act, being a law providing for notification of disputes by organisations and persons and their means of resolution, the general principles I have enunciated above are applicable here. That may be seen appropriately from the following passages from CFMEU v Newcrest: 65 There is nothing in s 170VQ to suggest that a State award or State agreement that would otherwise have applied to an employee's employment is invalidated or that the reach of s 170VQ extends to precluding the Commission from making such an award or agreement. Whether the Commission did so would be a matter for its discretion, not a matter dictated by the terms of the Commonwealth law. In other words, an AWA and a State award or State agreement may stand side by side but the award or agreement will be excluded from applying to the employment of the employee who is a party to the AWA if, but for the AWA, the award or agreement would have applied to that employment.

66 In fact, by its language s 170VQ recognises that there may be State awards or agreements that apply to an employee's employment in circumstances where the employee is a party to an AWA. That is, s 170VQ recognises such awards or agreements have been made and may continue to be made, but where the award or agreement applies to the employment of an employee who is a party to the AWA, the award or agreement will be excluded by the AWA.

67 We take the example of a registered organisation of employees that may notify the Commission of the existence of an industrial dispute. The Commission may decide to make a common rule award in settlement of the dispute. But for the existence of an AWA the employer corporation and the employee that are party to the AWA might be subject to the terms of the common rule award applying to a particular industry or occupation.

68 It may be accepted that the common rule State award that would otherwise apply to the employment of the employee who is party to the AWA would be excluded from so applying. The proposition, however, inherent in the respondent's position, that s 170VQ precludes the Commission from exercising its conciliation and arbitration powers to make such an award in the first place because it would, but for the AWA, apply to an employee's employment, is untenable. The corporations power is not a power that authorises laws the effect of which would be to extinguish the power of a State Industrial Authority to make common rule awards or exercise its conciliation and arbitration powers to resolve an industrial dispute merely because of the existence of AWAs. Such a law would not have the requisite connection to the corporation in the manner required by McHugh or Toohey JJ in Dingjan nor meet the "discriminatory operation" test of Brennan J in that case. (We note that a question may arise as to whether a Commonwealth law that sought to render inoperative the power of a State Industrial Authority to make awards, "impermissibly interfered with the governmental functions of a State": Austin v Commonwealth (2003) 77 ALJR 491 at [151] and the cases referred to therein regarding the limitation upon the powers of the Commonwealth Parliament that prevent it from discriminating against the States).

69 The language of s 170VQ is arguably consistent with the limitations inherent in s 51(xx). The limits of s 51(xx) in protecting the interests of the corporation and its employees who are parties to an AWA are reflected in s 170VQ(4). That is, the AWA during its period of operation, operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment. Section 51(xx) does not authorise a law that goes so far as to extinguish the Commission's jurisdiction to deal with industrial disputes by conciliation and arbitration. That the Commission may be asked to deal with an industrial dispute by a union that is in dispute with a constitutional corporation party to an AWA produces no different conclusion. In exercising its powers of conciliation and arbitration the Commission is not confined to resolving the dispute in the manner proposed by a particular party to the dispute and the resolution determined by the Commission may have no implications for the operation of the AWA in the sense that any order or award made may not have any application to the employment of the employee party to the AWA.

70 That s 170VQ could not be said to cover the field in the manner contended for by the respondent may be further illustrated by the fact that an AWA may only be entered into, in the case of an employer, by one that satisfies the requirements of s 170VC and by an individual employee (subject to the provisions of s 170VE). Section 170VQ(4), or for that matter Pt VID, cannot validly say anything about a dispute between a constitutional corporation and a registered organisation of employees such as the CFMEU. On the other hand, the dispute that has been notified to the Commission in this case is one between Newcrest, a constitutional corporation, and the CFMEU. It is impossible in those circumstances to accept that Pt VID covers the field in the manner contended for by the respondent.

71 Section 170VR(1) provides that an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency. We note that the definition of "State law" in s 170VR(5) does not include a State award or State agreement. It would be, as counsel for the Attorney General for New South Wales remarked, "highly surprising" if s 170VR(1) did not apply to an award that the Commission might make in resolution of an industrial dispute but did apply to the exercise of the Commission's powers in resolving the dispute by precluding the exercise of those powers.

72 In any event, s 170VR does not evince an intention to cover the field in respect of matters pertaining to the relationship between an employer and employee in circumstances where an AWA applies to the relationship. Section 170VR(1) provides that "Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency." Section 170VR limits the field covered to "conditions of employment". The provisions of Pt 1 of Ch 3 of the IR Act cannot be described as "conditions of employment specified in a State law". The proper characterisation of Pt 1 of Ch 3 is a law that provides for notifications by organisations and persons of industrial disputes and the resolution of those disputes by means of compulsory conciliation and arbitration. 27 Having so found I do not consider it necessary to determine whether there is a lacuna in the industrial coverage of the employee's employment between signing an AWA and the receipt issued by the Office of Employment Advocate, in which the Award might still apply. The Union's case has been otherwise substantially made out and orders should flow accordingly.

28 Pursuant to s136(1)(d) and s302 of the Industrial Relations Act 1996, the Industrial Relations Commission of New South Wales orders that:

1. Skilltech Consulting Services Pty Ltd shall provide to an authorised officer of the Australian Workers' Union New South Wales all time and wages records and any other relevant documents covering its employees who might be or otherwise employed under the terms of the Meter Readers and Field Officers' (State) Award.

2. The above order shall be complied with within seven (7) days of today.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.