C2390/900, Transcript of Proceedings [2001] AIRCTrans 1573 (16 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER REDMOND

C No 23909 of 2000

APPLICATION FOR CERTIFICATION OF AGREEMENT

APPLICATION UNDER SECTION 170MA OF THE ACT
BY THE AMWU AND WEIR ENGINEERING PTY LIMITED
RE ALLEGED INCORRECT WAGE FOR C11 AS A RESULT
OF IMPLEMENTING THE NATIONAL METAL AND
ENGINEERING COMPETENCY STANDARDS AT SOMERSBY
PLANT - PRIVATE ARBITRATION

SYDNEY

10.06 AM, WEDNESDAY, 27 JUNE 2001

RESERVED FOR DECISION

PN1

THE COMMISSIONER: Appearances please.

PN2

MR B. STEWART: If the Commission pleases my name is Stewart, initial B. I appear on behalf of the AMWU registers the AFMEPKIU. Appearing with me is Mr McQuarrie initial K, work place delegate from Weir Engineering of the AMWU.

PN3

MR F. COLE: If the Commission pleases my name is Cole. I appear for the Australian Industry Group on behalf of the company and appearing with me from the company is Ms Barham.

PN4

THE COMMISSIONER: Thank you, Mr Cole. Yes, Mr Stewart?

PN5

MR STEWART: Thank you, Commissioner. If the Commission pleases I've just conferred with Mr Cole just to get a further assurance that the company does indeed consent to private arbitration. That is indeed the case. Mr Cole's indicated to me that at the appropriate time that he's prepared to put that on transcript just to take any ambit out of this case, Commissioner.

PN6

THE COMMISSIONER: Yes. I think I asked both parties last time did they consider private arbitration. It wouldn't be private arbitration and both parties would have to consent to accepting my decision as private arbitration. I think both parties indicated that to me otherwise I'd not be prepared to go on with it.

PN7

MR STEWART: Yes, indeed. The AMWU is prepared to abide by the umpire's decision, Mr Commissioner.

PN8

THE COMMISSIONER: Thank you, Mr Stewart.

PN9

MR STEWART: Mr Commissioner, I wish to indicate the AMWU is representing two members who are store workers employed by Weir Engineering at the Somersby plant. The members names are Mr Ron Cauldon and Mr Ian Anderson. The rate that the Australian Manufacturing Workers Union is seeking on behalf of the above mentioned members is the shop rate of $619.21 per week. Mr Commissioner, I wish to challenge and rebut some of Mr Cole's submissions made at the previous hearing before you on 1 March 2001 before I continue as I see it essential in presenting this case.

PN10
Mr Cole made several statements and assertions. Mr Cole argues in PN36, PN37 and PN38 of the transcript of the 1st of the 3rd 2001. There was no need for the company to sit down and negotiate an appropriate rate on the basis that clause 18 of Weir Engineering enterprise bargaining agreements states an appropriate rate will be established. The AMWU negotiated this agreement on the basis that the award rate between C12 and whatever other rate would be established, in this case C11, will be the minimum award rate relativity being $20.90 as in the Metals Engineering Associated Industries Award 1998.

PN11

Clause 18, Mr Commissioner, also states that the implementation of the National Metals and Engineering Competency Standards will be a joint approach. Implementation of the National Metals and Engineering Competency Standards as far as the AMWU is concerned in relation to the enterprise agreement also includes a joint approach including wages on site. This did not occur. The company excluded workers and union officials in regard to the following step in relation to wages outcomes. I reject

PN12
Mr Cole's submission through PN36, PN37 and PN38 of the transcript of the 1st of the 3rd 2001.

PN13
The minimum rate above the Weir Engineering C12 shop rate must be the minimum award relativity as far as the AMWU is concerned being $20.90 leading to the C11 shop rate at Weir Engineering for store workers being $619.21. $20.90 must be on top of the C12 store persons rate in clause 11 of the enterprise bargaining agreement and not the C12 trade assistants rate. The two people concerned are store workers not trade assistants. Mr Cole at PN43 of the transcript dated 1 March 2001 states that the concept of award difference actual rates was never agreed to at this establishment nor the concept of minimum award relativities.

PN14
I'd put to the Commission, Mr Commissioner, that that is a nonsense. Why the AMWU agree to that when it was already in the award. Mr Cole asks at PN43 of the previous transcript:

PN15

Why is the union trying to change things around on the basis at clause 11 in the EBA there are two C13 rates.

PN16
Mr Commissioner, C13 is not in question. C13 is not the issue. C13 at the time of the certification of the EBA was already set in concrete. C11 classification at the time of the certified agreement was not established. I reject Mr Cole's submission at PN43 in its entirety. Mr Commissioner, I wish to tender a document to the Commission if I may.

PN17

THE COMMISSIONER: Yes. Mr Cole, do you have the document?

PN18

MR COLE: Sir, the copy of transcript, Commissioner, yes.

PN19

THE COMMISSIONER: Yes. I will mark that S3.

EXHIBIT #S3 COPY OF TRANSCRIPT

PN20

THE COMMISSIONER: Yes, Mr Stewart.

PN21

MR STEWART: Thank you, Commissioner. In relation to this transcript I wish to inform you, Commissioner, that this plays a critical and integral part of the AMWU's submissions except for the parts I've just rejected. The transcript is important in terms that it outlines processes that have occurred with letters that are already on file; the relevant award and EBA clauses that will affect this case; the relevant clauses in the National Metals and Engineering Competency Standards guide dated November 1999. Key award clauses for implementing competency standards are 5.1.3A of the Metal Industry Award. Commissioner, I don't intend to read that one out.

PN22

THE COMMISSIONER: Well, what clause was it again?

PN23

MR STEWART: 5.1.3A.

PN24

THE COMMISSIONER: Thank you.

PN25
MR STEWART: I don't intend to read that particular part out, Commissioner, because I've already put that on transcript at PN20 and PN21 of the previous hearing. Basically Part V of the award, Commissioner, in its entirety covers competency standards and pay rates and the like. The key clause in the National Metals and Engineering Competency Standards Implementation Guide dated November '99 is clause 3.7, the third dot point which in the guide is headed up Reclassification and Actual Wages. I will read out the third dot point, Commissioner. The third dot point, Mr Commissioner, of 3.7 in the guide is the absolute key to the resolution of this dispute. The third dot point in 3.7 reads as follows:

PN26

Where there are no other employees in your enterprise already doing work of a nature similar to the employee being considered for reclassification then a new wage rate for that higher level will need to be determined for your enterprise. This provide at least a wage increase of the difference between the minimum award rates for the employees old classification level and the minimum award rates for the new classification level.

PN27

End of third dot point. In other words, Mr Commissioner, $20.90 as per the minimum award relativity. Commissioner, the AMWU believes this entire dispute is around the company's deliberate misinterpretation of choosing to ignore clause 3.7 third dot point in the National Metals and Engineering Competency Standards Guide. The guide is quite clear, it's quite concise. There is no ambiguity, no absorption in the over award payment at 3.7 third dot point unequivocally; 3.7 third dot point says it all, Mr Commissioner.

PN28

At the inception of the National Metals and Engineering Competency Standards the MTFU, the Metal Trades Federation of Unions and the AMWU being part of the MTFU did not agree to absorb any of those wage rates in it nor did the old MTIA nor at classification levels, pay rates as a result of implementing National Metals and Engineering competency standards could be absorbed in over award payments. That was not the case at all. We didn't agree to that.

PN29

The implementation guide, Mr Commissioner, is quite clear and quite concise in relation to this issue. Standards were introduced by industry parties to improve productivity, efficiency, create a highly skilled flexible work-force, to provide access to a career path for workers, recognition of skills and possible reclassification for workers with reclassification recognition of such skills and payment for those skills. Commissioner, a precedence already exists in relation to 3.7 third dot point. The case involves Tontine Industries v AMWU in 1997. Commissioner, I just seek to hand up a copy of the decision.

PN30

MR COLE: Commissioner, can I also ask that we receive copies of the Implementation Guide as referred to by Mr Stewart.

PN31

THE COMMISSIONER: Do you have a copy of that, Mr Stewart?

PN32

MR STEWART: I do have a copy here. I have a copy.

PN33

THE COMMISSIONER: Can you give that to Mr Cole so he can have a look at it?

PN34

MR STEWART: Certainly, my apologies.

PN35

THE COMMISSIONER: I will mark this S4.

EXHIBIT #S4 IMPLEMENTATION GUIDE

PN36

MR STEWART: Commissioner, the decision was handed down by Commissioner Simmons on the 25th of the 3rd 1997. The case number is 20317 of 1997. Basically it reads as follows. It's a recommendation:

PN37

This recommendation is made pursuant to section 111AA the Work Place ...(reads)... of the Metal Industry Award 1984 Part I.

PN38

Commissioner, I will just pull up there and inform the parties that 6E is basically now part 5 or clause 5 in the new Metal Engineering and Associated Industries Award 1998. I will continue on:

PN39

For the reasons given in conference to parties today I recommend

PN40

...(reads)... should be the date of the hearing namely 28 February '97.

PN41

The case, Commissioner, involved fitters moving from C10 through to C8, C9 and C8. Although the Weir case involves non tradespeople the principles are exactly the same, they're exactly the same around 3.7 third dot point. Tontine had not given the C classification prior to the implementation of the competency standards nor a wage level. 3.7 third dot point:

PN42

It has been recognised by the Australian Industrial Relations Commission as the mechanism to use and has settled disputes for new classifications and wages unequivocally.

PN43

The Tontine case says it all, Commissioner, in the AMWU's view. The AMWU is of the view that the Commission must rule the same in this case being the AMWU v Weir Engineering. The circumstances in the Weir Engineering case are as follows: (1) The National Metals and Engineering Competency Standards were implemented in October 1999. (2) To the best of my knowledge in October 1999 Weir increased the two members' wages by $6.83 above the C12 shop rate for store workers.

PN44

The AMWU believes this is contrary to the minimum award relativity of $20.90 in clause 5.1.1C of the Metal Industry Award. (3) After the AMWU challenged that payment Weir Engineering made an additional offer of $7.29 bringing the offer to $14.57 above the shop rate for C12 store workers still insufficient to the AMWU and I might add, Commissioner, that Weir Engineering have paid the $6.83 but not the additional $7.29 as previously offered.

PN45

Mr Commissioner, $20.90 minus $6.83 according to my calculations equals $14.07 which needs to be paid in the AMWU's view to equal the full award minimum relativity of $20.90. (5) The AMWU hereby inserts that the amount of $14.07 is to be paid on top of the $6.83 to form the all purpose rate for Mr Cauldon and Mr Anderson equating to $20.90 minimum award relativity. (6) The amount claimed by the AMWU is 90 weeks times $14.07 which equals - - -

PN46

THE COMMISSIONER: Ninety weeks you said?

PN47

MR STEWART: Yes, 90 weeks. That takes us back to October 1999, Commissioner, where competency standards were implemented. The amount claimed for each member is $1,266.30 and each week of course the case goes on that will increase by $14.07 a week. Needless to say that overtime rates and et cetera will need to be dealt with at the appropriate time. (7) The full shop rate for C11, for Mr Cauldon and Mr Anderson at Weir Engineering, is claimed by the AMWU to be $619.21 until further EBA increases.

PN48

I will also take the parties and the Commission to clause 11 of the EBA which has expired on 31 March but is still in vogue. The last paragraph in clause 11 of the EBA in wages reads:

PN49

A C10 employee on a circle rate who is reclassified upwards to C9 shall be paid in addition ...(reads)... cease to exist when that employee leaves.

PN50

The company has already applied the minimum award relativity to one employee on site of $20.90. There's already a precedent been set on site the AMWU asserts, already a precedent, Mr Commissioner. Commissioner, I mean imagine workers in industry acquiring additional skills and then being told by the boss that they were not going to be paid for those skills. Standards and training reform never would have got off the ground. That's exactly what Weir Engineering are telling our members at Somersby, Mr Commissioner, that the workers have the skills and are using them but the boss won't pay them properly.

PN51

It's wrong and it's a sick joke in the eyes of our members and the AMWU. It undermines the integrity and intent of the award. In the AMWU's view the Commission must rule in favour of the workers at Weir Engineering and in doing so will uphold the integrity and the intent as I've demonstrated of the metal industry award which covers approximately 300,000 people. Not to uphold the award as it is intended to reflect competency standards and minimum pay rates in the AMWU's view would be an absolute disaster for workers and the industry itself.

PN52

This is just not about Weir Engineering, Mr Commissioner, the AMWU asserts this has national consequences. In the AMWU's view this is just another case where the Australian industry group seeks to undermine the classification structure within an industry ..... It has national consequences. If the Commission pleases that will do from me at the moment.

PN53

THE COMMISSIONER: Thank you, Mr Stewart. Mr Cole?

PN54

MR COLE: Commissioner, there's a couple of points to start with. One is that I'm concerned that Mr Stewart has indicated that this is not a Weir Engineering matter. I thought it was private arbitration and doesn't involve any other company and shouldn't be used as a precedent anywhere I mean otherwise what is private arbitration all about?

PN55

THE COMMISSIONER: Yes.

PN56

MR COLE: The second point, Commissioner, is I'm not too sure who we're dealing with here because from the outset Mr Stewart mentioned Mr Ian Anderson as one of two claimants. Mr Anderson is on a circle rate and that's recognised in the enterprise agreement; that his actual rate is not listed in the agreement but he was working with a company which was taken over by Weir Engineering and had a higher rate of pay so there was agreement to retain Mr Anderson on that circle rate and that's one of the employees referred to in clause 11 of the enterprise agreement which is the wages clause and it says, I quote:

PN57

Those employees with circle rates will receive the phased increases as a dollar value ...(reads)... and their replacement will be paid in accordance with the common rate for the appropriate classification.

PN58

Unquote. Well, it's our clear understanding, Commissioner, that Mr Anderson is indeed on a circle rate and is one of those employees. So this case wouldn't involve, in our view, Mr Anderson. The second person referred to was Mr Cauldon. It's my understanding Mr Cauldon is not a C11 but he's a C12. So I just wonder who this application is being made for? So perhaps if we could get a response to that, Commissioner?

PN59

THE COMMISSIONER: Can you respond to that, Mr Stewart, in respect of both people that you have mentioned?

PN60

MR STEWART: In relation to Mr Cauldon I have a letter here dated 21 October 1999 Weir Engineering signed by Helen Sherwell the then human resource manager and it's saying that his current classification is C12. The classification review is C11. So as far as the AMWU is concerned Mr Cauldon is definitely in part of this application. In relation to the circle rate I'm instructed by Mr McQuarrie that in fact Mr Anderson is a circle rate.

PN61

THE COMMISSIONER: So that your application does not apply to him because he's a circle rate person?

PN62

MR STEWART: That would be the case.

PN63

THE COMMISSIONER: All right. All right, Mr Cole, I think I might adjourn for a little time while you find out what your position is in respect of the one person now - - -

PN64

MR COLE: Yes.

PN65

THE COMMISSIONER: - - - we're talking to and perhaps you might after you get your instructions which you've obviously sent for talk to Mr Stewart - - -

PN66

MR COLE: Yes.

PN67

THE COMMISSIONER: - - - and maybe the parties may reach an agreement. I don't know but there's still hope.

PN68

MR COLE: Thank you.

PN69

THE COMMISSIONER: I think I will adjourn till a quarter to 11?

PN70

MR COLE: That would be fine, thank you.

PN71

THE COMMISSIONER: Yes, the Commission stands adjourned.

SHORT ADJOURNMENT [10.32am]

RESUMES [10.48am]

PN72

THE COMMISSIONER: Yes, Mr Cole?

PN73

MR COLE: Commissioner, thanks for the opportunity to get further information on who this claim appears to cover. It's our view that a Mr Anderson who is a C11 person is indeed on a circle rate and is not involved in - - -

PN74

THE COMMISSIONER: I think the union has conceded that.

PN75

MR STEWART: No.

PN76

THE COMMISSIONER: No?

PN77

MR STEWART: Not yet.

PN78

THE COMMISSIONER: Not yet, okay.

PN79

MR COLE: It does appear that when the company paid the C11s extra and it does appear that Mr Anderson received the extra money when in fact when you read clause 11 Wages he should not have received it because he was on a circle rate and his rate of pay is still over that particular rate. It's sitting currently at $616.61. So even if he did receive an increase it was incorrectly paid because he was on a circle rate so in our view

PN80

Mr Anderson is out of the equation and I might add that the company would have no intention of taking that money back off him.

PN81

It then leaves Mr Cauldron who we believe was a C12 and the AMWU claimed he was a C11. Now, on checking the rate of pay being paid

PN82

Mr Cauldon is indeed the C11 rate but the company shows him as a C12 so it appears as if the company records should show C11. So it looks like the claim we're talking about here is in relation to one person and that's

PN83

Mr Cauldon who is being paid as a C11 although the company records apparently incorrectly showed he was a C12. So I apologise for that confusion.

PN84

As you're aware, Commissioner, the certified agreement in clause 11 Wages list the classifications engaged by the company when the agreement was negotiated back in 1999. The parties were conscious during the negotiations that both a C8 and a C11 rate may need to be established at some future time during the life of the agreement and to that effect in clause 18 competency standards of the agreement the parties were committed to introducing - well, sorry - clause 18 the competency standards committed the parties to introduce competency standards into the company and indeed that clause also stated that should during the implementation process any employee be reclassified as C11 or C8 an appropriate rate will be established.

PN85

Now, it didn't say how that rate was to be established and indeed if it was the intend that there be a specific difference between, for example, C11 and the new C11 rate and the C12 rate then one would have thought it would have been specified in the agreement but that wasn't an issue at the time when I was involved in it together with Mr Stewart in the negotiations of this particular agreement. The competency standards introduction did result in the need for reclassification to the C11 wage group and consistent with clause 18 the company established a C11 rate. Now, at that time the C11 rate established was 582.55. So that's of March 2000.

PN86

Now, the company established that rate by looking at the market place to see what an appropriate rate might be, an appropriate rate in other words used in clause 18 competency standards. Indeed the exhibit S2 tendered by the AMWU one of the pages of that old exhibit S2 is a letter from Weir Engineering to Mr Stewart and signed by Helen Sherwell who was then HR manager with the company and the second paragraph of that letter says and I quote:

PN87

In establishing the rate for a C11 the company took into account the market rate for this type of position.

PN88

Unquote. Looking at the market to assess what rate would be appropriate the company looked at the Australian Industry Group Wages Survey for the December 1999 half year and traditionally with these wages surveys the surveys cover various regions and the region with the highest rate of pay traditionally is the Parramatta region of Sydney despite the fact that the company is at Somersby. But the company deliberately chose that Parramatta region survey because they're traditionally higher than other rates and to decide what an appropriate rate was. I do have a copy of that Parramatta region wages survey somewhere for December 1999, Commissioner.

PN89

THE COMMISSIONER: I will mark this one C1.

EXHIBIT #C1 EXTRACT OF AUSTRALIAN INDUSTRY WAGES SURVEY WAGES SURVEY FOR DECEMBER 1999

PN90

MR COLE: Commissioner, exhibit C1 is an extract from an Australian Industry Wages Survey and is headed Parramatta Region Survey Summary December 1999. You will note that under the heading of Engineering/Production Employee there is a what is termed level 4C11 and it has a variety of wages there but when you look at the median rate the median rate it is 582.50. Now, that survey involves 16 companies employing a total of 177 C11s at 582.50.

PN91

So on that basis and consistent with clause 18 of the agreement the company established a C11 rate of 582.55; there's 5 cents difference for whatever reason. Now, at that time the AMWU claim was that the rate should be 597.12 based on the award difference between C12 and C11 or $20.90. In other words the AMWU added the award difference of $20.90 to the EBA rate for the C12 576.22 and the result became 597.12 and you will note from clause 11 of the agreement, Commissioner, that there is more than one C12 rate at Weir Engineering. You will observe, Commissioner, in clause 11 that there is a store person C12 and there is a trades assistant C12.

PN92

THE COMMISSIONER: That worried the life out of me.

PN93

MR COLE: Yes, it was - it's historical, Commissioner. I mean this company has taken over a number of other companies which paid different rates of pay and even within the same company there were different rates of pay for similar type work. So one of the objectives of the parties during the negotiation was try to rationalise those rates of pay and indeed we came a long way back in 1999 in that process but there was still circle rates which occurred. So the AMWU took the rate at the time for a store person 576.22 and added the then award difference of $20.90 making a claim of 597.12.

PN94

Of course had the AMWU taken a lower C12 rate and added $20.90 the claim would have been for a C11 rate of $590.10 some $7 less than what they're claiming now but consistent with clause 18 the company did establish a rate but following discussions between the parties the company agreed that it would review its position and in a genuine attempt to resolve the matter the company approached the issue this way. There was a demand for 597.12 and the company were actually paying 582.55. There was a difference then between the parties of $14.57 so in traditional industrial relations negotiating style the company offered to go halves in the difference of $14.57.

PN95

So the company said, "Okay, we don't agree with your principle of award differentials in EBA rates but we will go you halves in that difference and offer you an extra $7.29 a week." So contrary to the AMWU submissions that the company virtually dictated what the rate was they acted in accordance with clause 18 and did establish an appropriate rate but when the AMWU disagreed then the parties entered into negotiations to try to resolve the matter but of course that wasn't successful. So with the latest company offer the offer was 589.84 a week and that offer was rejected.

PN96

These figures that I'm quoting, Commissioner, are those consistent with clause 11 of the agreement operating from October 1999. So at that time the company offered 589.84. Now, there was nothing in the EBA to state that the principle of award differences should be observed. Indeed if it was the intent of the parties to do so it should have written into the final sentence of clause 18, for example, that rather than strike an appropriate rate it should have said: Employees should be paid a rate at least equal to the difference between that classification and the lower classification.

PN97

Now, it's difficult to understand that this principally being currently pushed by the AMWU, that is award differentials apply, why wasn't it raised during negotiations for an agreement. For example, if you look at C13 in clause 11 on a rate of 573.45 for a process worker that is at October 1995 and compare it to the highest C12 rate at 576.22 the difference is $2.67 while the award difference is 22.50. So there was a different principle being pushed by the AMWU at the time but that's now been changed so that rates of pay should reflect the award differentials. So the principle of award differentials were not relevant in 1999 when the agreement was struck is inconsistent with this different approach now.

PN98

We believe, Commissioner, that to further increase the C11 rate would indeed compress the difference between C11 and C10 and that has the potential to create a further problem. There are many more C10s in the company than there are C11s. In brief, Commissioner, we are prepared to honour the company's previous offer which was rejected which was to increase the rate of pay to 589.84 and that is based on the October 1999 rates in the agreement, 589.84 and indeed apply the back pay to when it was rejected in August last year and we believe that that would be an outcome which is fair to all involved.

PN99

THE COMMISSIONER: Mr Cole, can you answer - I'm sorry did I interrupt what you wanted to - - -

PN100

MR COLE: Yes, by all means.

PN101

THE COMMISSIONER: Can you answer one thing for me. C12 applies to storemen, storemen and packers, fork-lifts and we're now talking a C11 rate. That applies to riggers and others, does it not?

PN102

MR COLE: It does apply to riggers, it also applies, Commissioner, to non trade machine setters.

PN103

THE COMMISSIONER: Yes.

PN104

MR COLE: And other classifications.

PN105

THE COMMISSIONER: And these people we're talking about what is their role in the company?

PN106

MR COLE: Okay. Well, Mr Cauldon's role - - -

PN107

THE COMMISSIONER: Are they riggers or machine slitter operators?

PN108

MR COLE: No, as I understand it they're both - is basically the storeman.

PN109

THE COMMISSIONER: All right, well then, my next lot of questions will be to Mr Stewart later, thank you.

PN110

MR COLE: And that's our submission, Commissioner.

PN111

THE COMMISSIONER: Yes, thank you. Mr Stewart, you might tell me - I may have misunderstood you see so you can correct me, is that if they are storemen the two members you've spoken about just now why are you creating a difference between the store person that was there when you signed the agreement as a C12 and the two you're talking about now?

PN112

MR STEWART: In relation to clause 11 we're talking about the stores rate. The other rate, the trades assistant rate, we're not arguing. I acknowledge and concede there are two rates.

PN113

THE COMMISSIONER: Yes, but the point I'm making is in this agreement you've signed off on a C12 for a storeman.

PN114

MR STEWART: Yes.

PN115

THE COMMISSIONER: Now, you're saying, as I understand you, you're saying the storeman should be C11. That's not what the award says, is it?

PN116

MR STEWART: Well, it can. I mean indeed it can, Mr Commissioner, as a result of award restructuring there's nothing saying that a store person can't be a C11 or a C10 for that matter.

PN117

THE COMMISSIONER: I see. So you're saying these two people really qualify as C11s by the skills they've got.

PN118

MR STEWART: That's right, they were assessed against the National Metals and Engineering Competency Standards by a qualified assessor approved by the MERSI tab and they indeed had enough points in terms of the duties they were doing as store workers to be assessed as C11s under the award through the implementation of the competency standards.

PN119

THE COMMISSIONER: Yes, all right, thank you.

PN120

MR STEWART: Commissioner, I'd previously stated that Mr Anderson was out of the ball park. Upon further consultation with Mr McQuarrie in getting some further information I must apologise and I have to retract that. Mr Anderson as far as the AMWU is concerned is still in the ball park. We acknowledge that he is a circle rate but the company has also given

PN121

Mr Anderson the additional $6.83 in line with Mr Cauldon so I must retract that and put Mr Anderson in the ball park.

PN122

In relation to Mr Cauldon the cases we've outlaid previously on transcript is maintained. We're still arguing the $20.90. In relation to clause 18 where the appropriate rate - where it says in the EBA, "Appropriate rate will be established." I assert, Mr Commissioner, that the reason - and I was involved as was Mr Cole extensively with the negotiations of the EBA looking at clause 18 - I assert that the reason we didn't put the rate in there because it's already written in the award, it's already written in the award. If you look at clause 28 in the EBA it reads:

PN123

The company agrees to a collective process of negotiations for paying employment conditions ...(reads)... the parties agree to commence discussions.

PN124

And it goes on about the next agreement. But the point I'm making in relation to the instalment of the additional $6.83 is that the company did not in any way, shape or form involve worker representatives on the job or union officials, did not. In relation to the wage survey, well, anyone can do wage surveys. I'm arguing that this is about an award principle, that the wage surveys indeed are around Parramatta. We're talking about an award principle in a local agreement so I can't accept Mr Cole's submissions around the wage survey.

PN125

I mean in terms of different wage rates you're well aware, Commissioner, that different wage rates for the same classifications exist at an industry and that's on the basis of catch and kill your own and that's industrial history throughout this country. Indeed the AMWU did add the award minimum relativity to the store person C12 to come up with the 619.21 that we're covering now.

TAPE 6 IS FAULTY. COULD SOMEONE JUST CHECK MY TYPING. CAN'T HEAR THE COMMISSIONER HARDLY AT ALL. MR STEWART IS CONTINUING ON FROM TAPE 5

PN126

PN127

I just want to make it also quite clear, Commissioner, that we're talking about store workers here not trades assistants as there are two wage rates in here; we're talking about store persons.

PN128

Once again in relation to clause 18 there was no negotiations with workers or union officials. The company just came out and made a different offer so I don't agree in the manner that that was applied on site or with

PN129

Mr Cole's submission. The only time that the worker representatives were brought into the equation and union officials was after members complained to work-place delegates about the actual rate they'd received after they were assessed against the competency standards.

PN130

Once again in relation to clause 18, the last paragraph, I've always taken the view, Commissioner, if it's written into the award if it's already in the award why should you write something in the agreement? It's already there, you're just double dipping. Mr Cole made submissions around C13. The C13 issue is not the issue. Those wage rates were already set in train. Those wage rates are an anomaly through the acquisition of different companies bringing workers on at different wage rates with the same classification. That's the problem there. At the time of the certification of the agreement those C13 rates were already there.

PN131

The C11 rate was not as a result of the implementation of competency standards. Our two members were assessed against the said standards. They were C12s at the time. The standards indicated that they had the skills for C11 so I don't agree with Mr Cole's assertion around C13. I reject that also. In relation to Mr Cole's assertions that to increase the C11 rate would create problems because there are more C10s. I categorically reject that, I categorically reject that. I've been in heavy consultation with the delegates and members over time in relation to this. We are in award restructuring. We're in the era of classification structures and implementation of competency standards.

PN132

The award relativities are the award relativities so I can't accept Mr Cole's assertions on that. So I'm in a position to reject that. My instructions from Mr McQuarrie is - the last instructions I had received is that the members had rejected the additional $7.29 and that my instructions were to take this hearing through to a final conclusion. Commissioner, if that means you have to arbitrate on it I've indicated on transcript that the AMWU will abide by the umpire's decision. Earlier on Mr Cole also made some comments about national consequences. I understand that this is private arbitration, Commissioner, but I'm not so naive as to not recognise that any decision handed down by the Australian Industrial Relations Commission may well be used at a further date by the Australian Industry Group. Commissioner, that concludes my submission, thank you.

PN133

THE COMMISSIONER: Good, thank you. In these cases it has been my position that if I don't summarise the case I just formally give a decision in respect of this matter and that's what I intend to do in respect of this matter as there is no appeal from this decision which I will give. I will take on board the submissions - did you want to say something?

PN134

MR COLE: Yes, just one point I need to put, Commissioner, and that's in relation to who this decision would cover and it's our view clearly it's only Mr Cauldon. Mr Anderson who the AMWU referred to is indeed on a circle rate and is on a circle rate in accordance with the EBA but the company has apparently made a mistake and incorrectly paid Mr Anderson an additional $6.83 a week assuming that he wasn't on a circle rate. So this appears to be a mistake and the company will not act to take the $6.83 off Mr Anderson but an error has occurred.

PN135

This is no reason why Mr Anderson should be caught up in this claim and to do so would indeed be an extra claim and in breach of clause 26 no extra claims because Mr Anderson is clearly on a circle rate. That's the only point I wish to make.

PN136

THE COMMISSIONER: That was your submission in relation to it.

PN137

MR COLE: Thank you.

PN138

MR STEWART: Mr Commissioner, if the Commission pleases the AMWU asserts that indeed Mr Anderson is in the ball park. We acknowledge that he's on a circle rate. Mr Cauldon's definitely in the ball park. At the end of the day if this Commission arbitrates whether

PN139

Mr Anderson is in or out well I will abide by that decision, thank you.

PN140

THE COMMISSIONER: Thank you. Are you negotiating a new agreement at the moment, Mr Stewart?

PN141

MR STEWART: I believe it's in the infant stages of negotiations. The AMWU on behalf of the members have served a log of claims through this Commission on the company.

PN142

THE COMMISSIONER: I will read the transcript of this matter and give a decision in due course. The Commission stands adjourned.

ADJOURNED INDEFINITELY [11.13am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S3 COPY OF TRANSCRIPT PN20
PRIVATE EXHIBIT #S4 IMPLEMENTATION GUIDEtc \f P \l 9
PRIVATE EXHIBIT #C1 EXTRACT OF AUSTRALIAN INDUSTRY WAGES SURVEY WAGES SURVEY FOR DECEMBER 1999tc \f P \l 9