AG2001/6135, Transcript of Proceedings [2001] AIRCTrans 2893 (25 October 2001)

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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HAMPTON

AG2001/6135

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Select Staff Proprietary Limited and Others
for the certification of Select Staff (Augusta
Power Stations/Leigh Creek/Administration)
Certified Agreement 2001

ADELAIDE

11.07 AM, WEDNESDAY, 10 OCTOBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: I will take appearances.

PN2

MR P. TANNER: I seek leave to appear on behalf of Select Staff Proprietary Limited.

PN3

MR B. DONNELLY: I appear on behalf of Communications, Electrical Employment Union.

PN4

MR J. FLEETWOOD: I appear on behalf of the ASU.

PN5

MR J. GRESTY: I appear on behalf of Australian Manufacturing Workers Union.

PN6

MR E. GRUE: I appear for the Australian Workers Union.

PN7

MR. M. HARRISON: I appear for the CFMEU. We are here to support this application, if it please the Commission.

PN8

MR. B.J. McINTOSH: I appear for the Transport Workers Union of Australia.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Tanner.

PN10

MR TANNER: This is an application made pursuant to section 170LJ of the Workplace Relations Act 2000 for the certification of an enterprise agreement providing terms and conditions of employment for Select Staff labour hire workers who are engaged to work at the NRG Flinders Power Stations at Port Augusta, the coal field at Leigh Creek and any other work sites associated with the activities of NRG Flinders in South Australia.

PN11

The agreement is significant in a number of respects. It represents recognition by Select Staff that the workers engaged pursuant to this agreement will, from the date of its certification, be recognised as direct employees of Direct Staff as opposed to the previous contractor relationship that has applied. It also provides for casual employees with more than 6 months continuous engagement commencing from today, the ability to nominate to convert from casual employment to either full-time or part-time employment, having regard to the nature of their employment over the preceding 6 months or so.

PN12

It confirms that the terms and conditions of the employees of Select Staff working at those NRG Flinders sites will be on a similar basis to the terms and conditions applicable to the NRG Flinders staff engaged in comparable work. In respect to some unusual aspects of the agreement, the term is quite short. It shows the nominal expiry date is 31 January 2002. That has regard to the expectation of both the unions and Select Staff that a new certified agreement will be struck with NRG Flinders early next year and the parties acknowledge that there will be some issues arising out of that which will need to be negotiated in terms of a new Select Staff enterprise agreement from that time.

PN13

In relation - sorry, the agreement covers generally around about 70 up to 120 or 130 employees and at the time the vote was taken there were a little over 70 employees, which I think is reflected in the statutory declarations of the party. The vote was conducted amongst the employee at the time who were actually engaged in work at the time the vote was taken. The higher figure I referred to, up to 130 employees, generally occurs when there is a major survey being undertaken at the Port Augusta Power Station when they take a unit, one of the large generating units, out of service. They literally need to swamp it with people to get it back in line as quickly as possible.

PN14

So I guess you could say the 70 or so people who voted, who were actually working at the time the vote was taken, tend to represent the people who are regular workers. As I said, a valid majority was achieved and I am instructed that in fact from the meetings, some of which were held by the union in respect of their members and others which were conducted by Select Staff personnel for people who indicated that they were not union members, the vote was actually unanimous in favour of accepting the agreement, obviously because of the significant benefits that I spoke about earlier. In relation to the various tests under the Act, unless the Commission has any specific questions, I would simply refer to the statutory declarations of the parties which clearly indicate those requirements have been met.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Tanner, the only point of clarification I make relates to the disputes procedure in the agreement. The agreement refers to, in step 4 and the second part of 6, step 4 to an independent mediator. I point out that I think the term of "mediator" in that context is probably a little misplaced in that as I understand it, the parties have committed to accept, subject to appeals, accept the outcome of the Commission and/or the independent mediator as binding. A little bit of tension between that concept of mediation and a binding outcome. As long as the intention of the parties is clearly understood.

PN16

MR TANNER: Yes. I would think, sir, from my experience in the power industry, it would be highly unlikely that a mediator would be appointed. If the parties did decide to go elsewhere then the Industrial Commission it would be in relation to a quite specific issue which they felt was better dealt with outside the Commission, yes. I do not think it is likely to be an issue.

PN17

THE SENIOR DEPUTY PRESIDENT: No, but in any event, if the person occupying that role, presumably making a determination binding on the parties, they are probably not acting as a mediator.

PN18

MR TANNER: Yes, indeed. I accept that.

PN19

THE SENIOR DEPUTY PRESIDENT: As long as the parties understand they are committed to the process, that is all. Thank you. Yes.

PN20

MR DONNELLY: Deputy President, first of all the union would like to thank you for having an early hearing for this enterprise bargaining agreement because, as Mr Tanner said, this has some significant advantages for our members at both Port Augusta and Leigh Creek so we do thank you for that.

PN21

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN22

MR DONNELLY: The enterprise bargaining negotiations have been going on for some 18 months and started off at Port Augusta so it has been a long drawn out affair. We finally reached a conclusion which we are certainly going to ask the Commission to certify. As Mr Tanner said, that has got a short expiry date, the expiry date being 31 January and that very clearly is because NRG enterprise bargaining agreement is at negotiation phase now and some of the changes to that agreement will apply to this agreement so we kick off with another agreement for possibly 2 or 3 years at that point of time of agreement.

PN23

The vote was conducted on 12 September at Port Augusta by the unions. Prior to that, Mr Stephen Carter from Select conducted some votes on site as well. The union vote was conducted on 12 September and was unanimous. Every union and every member from every union voted in favour of the agreement and supported that agreement. At Leigh Creek there was no formal union vote. There was a vote taken by Mr Stephen Carter once again, approximately a week after 12 September and once again that vote was unanimous with all the employees that he spoke to.

PN24

I bring your attention to one of the clauses, clause 23, sir, on page 10, talking about severance and redundancy. One of the sticking points of the EBA was the redundancy clause and the parties have both agreed to continue further negotiations to change that redundancy clause during the life of this agreement, if possible, and certainly if not in the next agreement. I think that is quite important. Mr Tanner also mentioned that from the date of certification of this agreement, the contractors he spoke about will become employees. The unions very clearly believe that those employees of Select have always been employees, have not been contractors, I would like to make that point. I would like you, for the CEPU, request that you certify this agreement on behalf of our members and if you have got any questions I am more than prepared to answer them.

PN25

THE SENIOR DEPUTY PRESIDENT: No, that is fine, thank you. Mr Fleetwood.

PN26

MR FLEETWOOD: Deputy President, you should have a statutory declaration in front of you from the State Secretary or Branch Secretary the ASU, John Gazzola, attesting to those necessary things.

PN27

THE SENIOR DEPUTY PRESIDENT: I do.

PN28

MR FLEETWOOD: The ASU obviously supports the certification of the agreement. I can't help myself, Deputy President, in commenting that clause 11(b) of the agreement contains a very progressive clause about casuals being able to convert from casual employment to other than casual employment after a period of time and we welcome such a provision applying in that agreement. With that, Deputy President, I would ask that you certify the agreement. Thank you.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Gresty.

PN30

MR GRESTY: Thank you, Commissioner. We support the comments made previously by my friends. We believe that the agreement does comply with all the requirements of the Act and we believe that is confirmed by a statutory declaration that has been lodged with this office. We would also seek that the agreement be certified as of today. If the Commission pleases.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Grue.

PN32

MR GRUE: If the Commission pleases statutory declaration has been provided by Mr John Braithwaite from the Australian Workers Union. We are satisfied the requirements of the Act have been met and we would support the application and concur with my friend's earlier comments.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harrison.

PN34

MR HARRISON: If it please the Commission, I move on the statutory declaration of Geoffrey Day of 8 October 2001 which is now before you and I urge, on behalf of the CFMEU, the certification of this agreement.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harrison. Yes.

PN36

MR McINTOSH: Mr Deputy President, the Transport Workers Union supports all the submissions in the application and we seek to have the agreement certified from today's date, if the Commission pleases.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Anything further, Mr Tanner?

PN38

MR TANNER: No, if the Commission pleases.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, look firstly I indicate that the Commission has dealt with this matter outside of its normal panel assignments because of the particular aspects that the parties are referred to and, in particular, Mr Donnelly you have drawn or confirmed to the Commission's attention some of the potential impact of a delay in dealing with the matter and when Munro Js office became aware of that, I think, through courtesy of the employers so counsel in the matter was immediately assigned to be dealt with on this basis. Having now heard the parties and with a broader understanding of the circumstances I believe that was entirely appropriate.

PN40

Secondly, I indicate that I'm satisfied that all the statutory requirements for certification of an agreement of this sort have been met. I have, prior to the proceedings, noted the statutory declarations and the terms of the proposed certified agreement, and indicate that I'm satisfied that both the process and the content of the agreement met all the legislative requirements for that course of action. In that light, I indicate that I will, in due course, therefore formally issue a certificate certifying the agreement effective from today's date, with a nominal life to run until 31 January 2002. A copy of the certificate and the now certified agreement will be supplied to all parties appearing in these proceedings at the earliest opportunity.

PN41

Lastly, I do note the significance of the agreement for the parties, I also note the effort required and contributed by all parties to reaching this point. I believe the agreement does have much to recommend it and although it is obviously only for such a short time I understand the strategies that has been adopted by the parties and wish you well in the administration of the now certified agreement and the Commission will hopefully deal with your next agreement early in the new year. The Commission will be adjourned.

ADJOURNED ACCORDINGLY [11.21am]