AG2001/6454, Transcript of Proceedings [2001] AIRCTrans 3050 (12 November 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 7909

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

AG2001/6454

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by the Tasmanian Chamber of Commerce and
Industry for certification of the
Thompson Fibreglass Employee Agreement 2001-2004

LAUNCESTON

9.15 AM, FRIDAY, 26 OCTOBER 2001

PN1

MR A. CAMERON: I appear on behalf of Thompson Fibreglass Pty Limited and with me MR A. EAGLING on behalf of the employer.

PN2

THE DEPUTY PRESIDENT: Now, Mr Payne and Mr Briggs are the employees who are going to be covered by the agreement. You are the ones I am allowed to interrogate. Thank you. Would you like to speak to the agreement, please?

PN3

MR CAMERON: Yes, thank you, Deputy President. This is an application under 170LK of the Act for an agreement negotiated directly with the employees of Thompson Fibreglass. It is an agreement for an anticipated period of three years with the commencement date being the first full pay period on or after certification by the Commission. Commissioner, the purpose of the agreement is to facilitate the employment and employees away from Tasmania on the mainland and overseas and to assist the company in obtaining contracts both on the mainland and overseas.

PN4

The company is bound by the Fibreglass and Plastics Award of the Tasmanian Industrial Commission but it has sought to register this agreement in the Federal Commission to cover the working arrangements for these employees when away from Tasmania. The wages - - -

PN5

THE DEPUTY PRESIDENT: So is this agreement over and above the State Award?

PN6

MR CAMERON: Yes, it is to be read in conjunction with - - -

PN7

THE DEPUTY PRESIDENT: Does it apply to all of the employees or is it - - -

PN8

MR CAMERON: It applies to all - - -

PN9

THE DEPUTY PRESIDENT: - - - specifically to a separate group?

PN10

MR CAMERON: It applies to all the employees that are covered by the award and that are working away from Tasmania because there are -provisions in the agreement go to such things as the accommodation, travelling allowances - - -

PN11

THE DEPUTY PRESIDENT: Yes, I have noted all of that that there are a lot of provisions there for special travel arrangements.

PN12

MR CAMERON: Yes.

PN13

THE DEPUTY PRESIDENT: That part I do not have problems with but I do with other parts.

PN14

MR CAMERON: The rates of pay are as per the award and also to be covered by any site agreements that exist on any sites that the employees are working but at no time are the rates of pay to be less than the provisions of the State Award.

PN15

THE DEPUTY PRESIDENT: That is where I have a problem because the agreement does not provide any rates of pay - - -

PN16

MR CAMERON: No.

PN17

THE DEPUTY PRESIDENT: - - - nor does it provide any increases over its duration.

PN18

MR CAMERON: We are still covered by the award and increases under the award would flow through to - - -

PN19

THE DEPUTY PRESIDENT: Well, that is what I want to know so do we need to have a rates of pay provision in this agreement if the award is going to apply?

PN20

MR CAMERON: The award would apply as I understand - - -

PN21

THE DEPUTY PRESIDENT: Yes. My concern is that where is the enforceable right? I mean, you cannot enforce the agreement because it does not tell you anything.

PN22

MR CAMERON: In terms of the rates of pay?

PN23

THE DEPUTY PRESIDENT: Mm.

PN24

MR CAMERON: Well, the rates of pay would be enforced under the - - -

PN25

THE DEPUTY PRESIDENT: And it is a State Award?

PN26

MR CAMERON: - - - terms of the award - yes, but it says - well, the agreement says - - -

PN27

THE DEPUTY PRESIDENT: Do they get paid the award rate or do they get something over and above the award

PN28

MR CAMERON: They get over and above the award depending upon what is on the site - on what the site agreements are on any particular site.

PN29

THE DEPUTY PRESIDENT: Who are the site agreements with?

PN30

MR CAMERON: The site agreements would be negotiated between the head contractor and Thompson Fibreglass on occasions.

PN31

THE DEPUTY PRESIDENT: I am just not comfortable putting through an agreement that does not make any provision. It talks about a State Agreement to start with or a State Award to start with and I know that awards in the State move a little more promptly than Federal Awards because there's no guarantee that if you are relying on a Federal Award rate that their rate is going to move because unions do not bother in a lot of cases now because of enterprise agreements and I would prefer to see in there some sort of provision that is a little more specific.

PN32

I mean, if I pick that up it tells me nothing as to what their rate of pay is and what the increases are for the period of the agreement and that is what needs to be there.

PN33

MR CAMERON: Yes. Well, as - we would anticipate any increases in the State Award would automatically flow through.

PN34

THE DEPUTY PRESIDENT: Yes, because it is a better system.

PN35

MR CAMERON: We do not know what the above-award payments will be on any particular site, it would depend upon what is negotiated on any site agreement.

PN36

THE DEPUTY PRESIDENT: Yes. No, I understand that part of it and it is arguable whether that is enforceable anyway and I am not suggesting that anything is going to go wrong - - -

PN37

MR CAMERON: No.

PN38

THE DEPUTY PRESIDENT: - - - it is just that I have a statutory responsibility to look after these two guys who obviously cannot look after themselves - - -

PN39

MR CAMERON: And another 16.

PN40

THE DEPUTY PRESIDENT: - - - if I read the legislation correctly.

PN41

MR CAMERON: And another 16 employees I think, too.

PN42

THE DEPUTY PRESIDENT: Yes, that is right, that is right. The only other problem I had with this is the agreement procedure takes it to the Tasmanian Commission.

PN43

MR CAMERON: Well, that should not be the case.

PN44

THE DEPUTY PRESIDENT: No. Well, it cannot.

PN45

MR CAMERON: No, that is right, that should be the Australian Industrial Relations Commission.

PN46

THE DEPUTY PRESIDENT: But it does not worry me one way or the other where it goes but if it is going to be a Federal Agreement it has got to come to the Federal Commission.

PN47

MR CAMERON: AIRC.

PN48

THE DEPUTY PRESIDENT: If that is part of the DSP.

PN49

MR CAMERON: Deputy President, obviously we will need to make an alteration to clause 20 to reflect the Australian Industrial Relations Commission.

PN50

THE DEPUTY PRESIDENT: Yes.

PN51

MR CAMERON: In relation to the pay clause would it be appropriate to amend that - - -

PN52

THE DEPUTY PRESIDENT: I mean, you could - how big is the pay clause in the award, is it a lengthy one?

PN53

MR CAMERON: No.

PN54

THE DEPUTY PRESIDENT: Are there many classifications?

PN55

MR CAMERON: Well, I suppose if we put the classification clause and the wages clause in there are - - -

PN56

THE DEPUTY PRESIDENT: If you just replicate that in the agreement and then the increases that apply to the award will apply and some reference to site agreements and I would be happy with that.

PN57

MR CAMERON: There are 12 pages in our printed copy of classifications.

PN58

THE DEPUTY PRESIDENT: Do all classifications apply?

PN59

MR CAMERON: I honestly - it goes right through to advanced tradesperson level 2 all the way down to an production employee.

PN60

THE DEPUTY PRESIDENT: Maybe if you have a look at that and just see if we can - I do not want you to put another 12 pages in.

PN61

MR CAMERON: No.

PN62

THE DEPUTY PRESIDENT: If you can come up with a compact clause - - -

PN63

MR CAMERON: The relevant - - -

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR CAMERON: - - - classifications that we will be working on the mainland.

PN66

THE DEPUTY PRESIDENT: That is right, yes.

PN67

MR CAMERON: Yes.

PN68

THE DEPUTY PRESIDENT: And then just that any site agreements that are negotiated will apply and I guess that goes without saying but it is possibly proper to have it in there.

PN69

MR CAMERON: And that the award increases flowing from the State Full Bench will flow through.

PN70

THE DEPUTY PRESIDENT: Yes, will apply here. I would be happy with that. I am also happy to make it operative from today once you provide me with the variations.

PN71

MR CAMERON: If we provide those variations do we need to come back before you for another - - -

PN72

THE DEPUTY PRESIDENT: No.

PN73

MR CAMERON: Good. Thank you, Deputy President. Because we have come across from Burnie today - - -

PN74

THE DEPUTY PRESIDENT: Oh, okay, yes.

PN75

MR CAMERON: - - - for the hearing.

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MR CAMERON: Well, we will undertake to amend the agreement. Will we need to go to a further ballot, that is the other question?

PN78

THE DEPUTY PRESIDENT: No, it is really just clarifying what you have got there so that it spells it out so that someone can pick up the agreement and say, "Yes, I am a horse trainer and I get $30 a day," or something, whatever that is, rather than referring back to a State Award which is not available within the Federal jurisdiction anyway.

PN79

MR CAMERON: No.

PN80

THE DEPUTY PRESIDENT: So it is a clarification rather than that and also the grievance procedure is just a matter of fact, it cannot come to the State Commission.

PN81

MR CAMERON: Yes, to show that. That is the problem with using precedence.

PN82

THE DEPUTY PRESIDENT: Yes. As I say, it is neither here nor there to me but to do it properly. Do you have any difficulty with that? Did you understand what all that was about?

PN83

MR BRIGGS: Yes.

PN84

THE DEPUTY PRESIDENT: Yes. Just making it specific and it is quite clearly then spelled out what your entitlements are. I mean, you understand what the agreement does?

PN85

MR BRIGGS: Yes.

PN86

THE DEPUTY PRESIDENT: It is all pretty clear?

PN87

MR BRIGGS: Yes.

PN88

THE DEPUTY PRESIDENT: You were not under any duress to sign up?

PN89

MR BRIGGS: No.

PN90

THE DEPUTY PRESIDENT: No. All of the other employees know what it means and how it is to apply?

PN91

MR BRIGGS: Yes.

PN92

THE DEPUTY PRESIDENT: All right. Well, subject to getting a couple of variations - - -

PN93

MR CAMERON: Yes, okay.

PN94

THE DEPUTY PRESIDENT: - - - I am happy to put it through on that basis and it can take effect from today's date anyway and it remains in force for a period of three years from today.

PN95

MR CAMERON: Deputy President, I think you should receive with the correspondence a copy of the returning officer's report to show that a secret ballot had been held.

PN96

THE DEPUTY PRESIDENT: Yes, I did.

PN97

MR CAMERON: There were no votes against the agreement but two invalid votes but the majority was achieved. We would also suggest it does not contravene the no disadvantage test and subject to those alterations we would recommend that it be - - -

PN98

THE DEPUTY PRESIDENT: Yes, other than the clarification it is pretty straightforward and it addresses the travel rather than any other specific issues and yes, it would appear that it passes the valid majority test. On that basis and subject to receiving a couple of variations the agreement will be certified as indicated. All right, thank you, gentlemen.

PN99

MR CAMERON: Thank you.

PN100

MR BRIGGS: Thank you.

ADJOURNED INDEFINITELY [9.25am]