AG2001/4286, Transcript of Proceedings [2001] AIRCTrans 2325 (13 September 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2001/4286

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Stanley Wine Company, Buronga NSW
(a division of BRL Hardy Ltd) for certification
of the Stanley Wine Company, Buronga NSW,
Enterprise Agreement 2000-2002

ADELAIDE

9.04 AM, THURSDAY, 23 AUGUST 2001

PN1

THE DEPUTY PRESIDENT: Good morning, gentlemen. I will take the appearances.

PN2

MR B. GRANTHAM: Deputy President, if the Commission pleases, I appear on behalf of BRL Hardy Limited, and with me MR M. SCAMMELL, the group manager, corporate services.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Grantham.

PN4

MR M. CHOPPING: If the Commission pleases, the AWU organiser from Mildura, sir.

PN5

THE DEPUTY PRESIDENT: Yes, welcome to Adelaide, Mr Chopping. Yes, Mr Grantham.

PN6

MR GRANTHAM: Sir, you have before you an application seeking certification of the Stanley Wine Company, Buronga, NSW Enterprise Agreement 2000-2002, being a wholly owned division, is my word, of BRL Hardy Limited. Sir, this application is somewhat belated but in any event it in effect will have an operative date in terms of importantly for the employees, the wage increases back some time in December. I can tell this Commission that indeed those wage increases are being applied and have been for some time.

PN7

Indeed, as detailed in clause 25, the first increase emanating from this agreement operates on and from the first pay period, 1 October 2000, with a subsequent 4 per cent increase 12 months hence from that date. Sir, I just need to clarify an editorial in subclause 3.1.2, the words, "wine industry" is missing from the title of the award that is binding on the company. It is correctly identified in the preamble on the front page immediately before clause 1.

PN8

THE DEPUTY PRESIDENT: Yes, I understand.

PN9

MR GRANTHAM: Thank you. Sir, you will note that what this agreement does which is different as I understand it from the immediately preceding agreement is that it wholly imports on top of the Federal award, the South Australian Wine and Spirit Industry SA Award. The reason for that sir is that the parties, the employer, the union and the employees are much more comfortable with that award. It gives the company the significant benefit of having commonality award provisions across a number of its sites in South Australia and New South Wales and in no way are the employees suffering any reduction by virtue of importing that award. I can tell you that this agreement provides wage increases prior to the first 6 per cent increase, approximately $100 per classification level above and beyond the award rates of pay for similar classifications.

PN10

THE DEPUTY PRESIDENT: Just on that, clause 6 says in part that:

PN11

- excepting for classification of wage rates the Wine and Spirit Industry SA Award will apply to those employees whose employment is otherwise covered by the Wine and Spirit Industry SA Award.

PN12

MR GRANTHAM: It is.

PN13

THE DEPUTY PRESIDENT: My concern is about the reference to "otherwise covered" because obviously given the location they are not actually otherwise covered in the sense that they are not otherwise covered in the absence of the agreement.

PN14

MR GRANTHAM: I appreciate the exact point you are making there, sir. Can I just have a moment, sir.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MR GRANTHAM: Sir, unfortunately it would appear that inadvertently at the time of signing a wrong draft has actually indeed been signed, it would appear, because the document that my friend Mr Chopping has states this in clause 6, and it appears from a very quick analogy or comparison that the rest of the document appears to be a mirror in all the other clauses. In clause 6, and perhaps I will just read this to you and then perhaps we will address how we are going to overcome this problem.

PN17

THE DEPUTY PRESIDENT: Certainly.

PN18

MR GRANTHAM: It reads:

PN19

This agreement must be read in conjunction with the above mentioned parent awards provided that whenever there is any inconsistency between the terms and conditions of this agreement and those in the parent award the provisions of this agreement must prevail.

PN20

Now, having just read that one then goes back to identify - I am sorry, sir, I have obviously been caught on the hop here.

PN21

MR CHOPPING: Excuse me, sir, look, it appears that that clause 6 there has actually inadvertently been inserted. It is I believe part of the award for the South Australian wineries, not Buronga itself.

PN22

THE DEPUTY PRESIDENT: Yes, right.

PN23

MR CHOPPING: We did have a separate clause covering our area of Buronga. That was the only area that was probably different to other areas in South Australia, sir.

PN24

THE DEPUTY PRESIDENT: Right, because that cause in the context of the South Australian agreement would be entirely legitimate because the award would otherwise apply.

PN25

MR CHOPPING: Yes, sir.

PN26

MR GRANTHAM: Excuse me again, please, Deputy President.

PN27

MR SCAMMELL: Sorry, Deputy President Hampton, can I ask, is it possible, we have got the union and the company, we all agree this thing has been dragging on for a long time.

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MR SCAMMELL: We are all in agreement and we are running with it. It looks like there is this one error on there.

PN30

THE DEPUTY PRESIDENT: Actually I do have a suggestion that I will run past the parties. I don't know about the other amendments that might be in the draft but if I understood the explanation that has been given as to the intent of the clause, if that sentence read as follows:

PN31

Except in the classifications and wage rates the Wine and Spirit Industry SA Award will apply to those employees whose classifications are covered by the Wine and Spirit Industry SA Award.

PN32

In other words, not a question of otherwise covered, it is a question of whether the classification - - -

PN33

MR GRANTHAM: Yes, agreed.

PN34

THE DEPUTY PRESIDENT: - - - because I imagine that is all that was intended.

PN35

MR GRANTHAM: That is exactly right, yes.

PN36

MR CHOPPING: I agree with that, sir, yes.

PN37

MR GRANTHAM: That I would agree, sir, would alleviate the entire problem.

PN38

MR SCAMMELL: Is it possible to make that change and be ratified on those grounds.

PN39

THE DEPUTY PRESIDENT: Providing, Mr Chopping, you can confirm that that is the understanding that the employees would have had of the clause when it was voted on.

PN40

MR CHOPPING: That certainly is sir, we have no worries at all about that.

PN41

THE DEPUTY PRESIDENT: All right.

PN42

MR GRANTHAM: Sir, if you like, given that now we have on that single page two editorials, would you be comfortable with us making those changes on the document on our system and forwarding that single page by E-mail.

PN43

THE DEPUTY PRESIDENT: Indeed.

PN44

MR GRANTHAM: So that then the Commission in publishing the document will have it in its entirety.

PN45

THE DEPUTY PRESIDENT: Yes, I think that is an excellent suggestion.

PN46

MR GRANTHAM: Indeed.

PN47

MR SCAMMELL: Thank you.

PN48

MR GRANTHAM: Having overcome that sir, I go to just some basic fundamentals - - -

PN49

THE DEPUTY PRESIDENT: Sorry, just before you do, can I raise another matter that may or may not fall in the same category but it is the same sort. If I can take you all the way to clause 28: Shift Work. I just need to confirm that it is the parties intentions to effectively incorporate the terms of the two South Australian Awards in that provision.

PN50

MR GRANTHAM: Yes, yes, it appears so sir, and obviously further to that is the afternoon and night shift rate will be paid at 17½ per cent for the afternoon shift and 20 per cent for the night shift.

PN51

THE DEPUTY PRESIDENT: Yes, no, I understand.

PN52

MR GRANTHAM: So there is a further improvement to the standards for the employees.

PN53

THE DEPUTY PRESIDENT: Yes, I understand, all right, good, thank you.

PN54

MR GRANTHAM: So just going to - I don't at this point unless you have any further questions, intend to regurgitate the statutory declarations that you have before you excepting to say that the agreement provides for a dispute settlements clause, it clearly defines the nominal life or duration of the agreement. We say, sir, that the provisions of division 4 part 6A of the Act are both met, nor offended, given it covers a number of issues. On that basis I commend the document to you for you to certify. As I said we will leave our submissions on that basis unless you have any further questions, if the Commission pleases.

PN55

THE DEPUTY PRESIDENT: Just in terms of operative date, you will appreciate the Commonwealth Act provides that an agreement that is certified comes into force from the date it is certified so in that context the retrospectivity as you have outlined will need to apply by way of administrative action but I doubt that that is the case.

PN56

MR GRANTHAM: We are not aware of any provision in the agreement that would cause the company any difficulties in that in terms of a technical underpayment on applicability.

PN57

THE DEPUTY PRESIDENT: I am sure that is right, particularly given the operation of the previous agreement in any event.

PN58

MR GRANTHAM: If the Commission pleases.

PN59

THE DEPUTY PRESIDENT: Mr Chopping?

PN60

MR CHOPPING: Deputy President, I concur in total with Mr Grantham. The procedure as required in the Act was fully followed through and we have no problems at all with the document and we request also that it be ratified.

PN61

THE DEPUTY PRESIDENT: Good, thank you. I indicate that I am satisfied firstly that leave should be granted to amend the agreement before the Commission in two respects. Firstly, the editorial amendment in clause 3.1.2 and the further editorial amendment in clause 6. I do so on the basis that the Commission has the power to allow the amendment of documents. This is however an agreement but I am satisfied that those amendments are purely editorial and merely confirm what the employees and the employer understood at the time that the agreement was approved by the parties.

PN62

Secondly, I indicate that I am satisfied that the Commission can and should certify this agreement. All the relevant steps have been taken in accordance with the Act. I accept entirely that the submission that the agreement is beneficial, it has certainly passed the no-disadvantage test and indeed it is a comprehensive and beneficial package. It reflects well on both parties. In that context I indicate that I will later today issue an order certifying the agreement as amended. The agreement will take force on and from its certification and will have a nominal life until 30 November 2002. A copy of the agreement as certified will be supplied to the parties in due course. Perhaps in that context Mr Grantham, if you could provide to my associate by E-mail today, the revised page 2 I will consolidate the same and make sure that order is issued today as indicated.

PN63

MR GRANTHAM: Yes, sir, I'm just revisiting clause 6 and thinking on my feet, literally. The last sentence there:

PN64

Where there is any inconsistency between the terms and conditions of this agreement and those in the awards the provisions of this agreement must prevail.

PN65

Where my mind is going to is I don't have a problem with the mettle side of the equation so to speak, I am merely questioning as I'm thinking here about which award we are indeed referring to in terms of whether it is the Federal Award or - - -

PN66

THE DEPUTY PRESIDENT: Yes, well, I am not sure that it matters because of course if it is taken to be reference to the Wine Spirit and Industry SA Award, then the agreement is what gives that the force. There is obviously no inconsistency there. If it is the Wine Industry AWU Award 1999 which would be the natural meaning of the clause then obviously the inconsistency does arise and the agreement applies.

PN67

MR GRANTHAM: Yes, I suppose I was more concerned with the inconsistency between the State Wine Award and the Federal but then having thought about it as I'm speaking, clearly we are importing the Wine and Spirit Industry Award of South Australia above the Federal and the inconsistency would obviously in the first instance go to that award.

PN68

THE DEPUTY PRESIDENT: Yes, because that is actually the term of the agreement. Technically, it is actually the agreement that provides those terms not the Wine and Spirit Industry SA Award at all.

PN69

MR GRANTHAM: No, exactly, yes. I apologise for that it is just that I am keen to avoid any subsequent confusion.

PN70

THE DEPUTY PRESIDENT: It is an appropriate investment in time in my experience.

PN71

MR GRANTHAM: Thank you, Deputy President.

PN72

THE DEPUTY PRESIDENT: So if you could supply that replacement page today then I will issue those orders and I wish the company and the union all the best over what remains of the term of the now certified agreement. The Commission will be adjourned.

ADJOURNED INDEFINITELY [9.20am]