AG2001/5427, Transcript of Proceedings [2001] AIRCTrans 3080 (14 November 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2001/5427

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by the Australian Manufacturing Workers Union
and Visy Board Pty Limited for certification
of the Visy Industries Gepps Cross/Berri
Enterprise Agreement 2001

ADELAIDE

10.53 AM, TUESDAY, 30 OCTOBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. Can I have some appearances, please?

PN2

MR A. NICHOLSON: I am from the AMWU.

PN3

MR T. KANE: I am from Visy Board.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nicholson?

PN5

MR NICHOLSON: Yes, I also have with me the Father at the Chapel from Visy Board, MR K. FINDLAY, and the ex official of the AMWU, MR R. PARHAM, who helped to negotiate the agreement. Again, if there are certain things that I can't answer on this I will be only too happy if the Commission would ask the questions of these other people.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nicholson.

PN7

MR KANE: Similarly, I have MR G. CASHION, our operations manager from Visy Board.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kane. Mr Nicholson?

PN9

MR NICHOLSON: Yes, this application, sir, is for the certification under division 3 of Part VI(b) of the Act between Visy Board Proprietary Limited of Gepps Cross and Visy Industries at Berri in South Australia. The agreement is for a period of 2 years and covers approximately 160 people. Negotiations have been carried out over the past few months, until we got to a situation where the agreement could be passed on to all members covered by - all the employees covered by the agreement, and which they perused for 14 days and then had a ballot to accept or reject the agreement.

PN10

During that time there was circulations - during the negotiations - there was mass meetings of the members, of the employees, to explain the details of the agreement. There were also notices on the noticeboard. The pay rate adjustment over the period of time is a 5 per cent increase for all purposes, effective from the first pay period on or after 1 July 2001. A further 5 per cent increase for all purpose is effective from the first pay period on 1 July 2002.

PN11

The agreement also covers dispute settlement procedures, among other things, and casual fixed term employees, and heat policies which affect that company. So the application is for the Commission to accept this agreement as it stands.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nicholson. I might hear from Mr Kane and then, as you might guess, I do have some questions for you. Thank you.

PN13

MR NICHOLSON: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: Mr Kane, is there anything you wish to add by way of explanation to the background for the agreement?

PN15

MR KANE: I think Tony has covered most of the major issues. The agreement was negotiated in a good spirit. We also - we actually had a Vietnamese translation for our employees there on site. We also gave each of the employees a full copy of the document during the 14-day period. That is about all I have to add.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Kane, before you take your seat, just a preliminary question. I can foreshadow I do have a couple of other questions for you later on. The agreement applies to a number of casual employees. Could I just have some confirmation from you that the - first of all, those casual employees received a copy of the agreement?

PN17

MR KANE: Yes.

PN18

THE SENIOR DEPUTY PRESIDENT: Were any of those casual employees also amongst those employees who didn't speak English?

PN19

MR KANE: I honestly couldn't - no, no.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kane. Mr Nicholson, I guess at this stage you can probably pre-empt some of the questions that I will ask you. Can I start first of all with a question in that the agreement clause 4 references three awards.

PN21

MR NICHOLSON: Yes, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Can you tell me how that reference to three awards applies in relation to some of the provisions in the agreement which reference a specific award? So that if I were to take you to, say, clause 11, Sick-leave, in the agreement, which reads:

PN23

In line with the Graphic Arts Interim Award 1995 employees will be entitled to 40 hours sick-leave accrual in the first year of service and 64 hours each subsequent year of service.

PN24

MR NICHOLSON: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: I would like some explanation from you, and I will accept you may need to refer to some of the other personnel involved in the agreement, as to some assurance that that reference to the Graphic Arts Award 1995 does not cause some confusion in terms of the reference to the three awards in clause 4.

PN26

MR NICHOLSON: There could be - I could see a possible problem, yes, because the Country Printing Award 1959, the departure that we seek of 10 days sick-leave, the - and the Metal Engineering Award, if it is the State award, also receive 10 days sick-leave. So I just really would prefer you to pass this question on, if you wouldn't mind, to Tony Kane.

PN27

THE SENIOR DEPUTY PRESIDENT: I'm not particularly concerned as to who answers it, so long as someone is able to.

PN28

MR NICHOLSON: There's provisions made in other agreements I have, and that has been overlooked. So the fact that we do cover three awards in this, because people in Berri, in the Riverland in South Australia, are covered by this agreement and they work under the Country Printing Award 1959. The people in the metropolitan area work under the Graphic Arts Award and we also have the maintenance staff there who probably would work under the Metal Engineering Industries Award 1998. Under that award it is specific that they get 10 days sick-leave per year. Under the Country Printing Award it is 10 days sick-leave per year. So that it is a problem there.

PN29

The 40 hours sick-leave is for the first year and the 64 related to 8 days in all terms, because now we are on a 7.6 hour day and the 64 hours still stands and it equates to 8 - still 64 hours - we would prefer to use the 64 hours rather than the days. In the case of the Country Printing Award it would be 10 days at 7.6, so that should read 76 hours, and the same for the metal award in South Australia, it should read 76 hours, that should be stipulated in there. So there could be a disadvantage to those people in that particular clause.

PN30

THE SENIOR DEPUTY PRESIDENT: You see, what I am particularly interested in is two things. First of all, to try to clarify issues now in an environment where there is absolute harmony because I think it might be a little easier to do so - - -

PN31

MR NICHOLSON: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: - - - rather than trying to do so in an environment where there isn't harmony. Secondly, and perhaps more significantly in the context of the certification of the agreement, I am concerned as to what the employees who voted for this agreement understood that they were voting for, which goes to the various obligations contained in section 170 that go to the explanation of the terms of the agreement and the provision of the information attaching to it. I must say that I'm having some difficulty coming to grips with some of those sorts of issues. So I do need some assistance from the parties.

PN33

MR NICHOLSON: Yes, could I call on Mr Rod Parham?

PN34

THE SENIOR DEPUTY PRESIDENT: You may certainly do so, or alternatively, if you wish to confer briefly on the question I'm happy to let you do so.

PN35

MR NICHOLSON: Yes, call on Mr Rod Parham.

PN36

MR PARHAM: If the Commission pleases. Commissioner, I have parted company with the AMWU just some weeks back and prior to that had been involved totally with the Visy enterprise agreement. In regard to the parent awards, there is a maintenance crew, particularly active at Gepps Cross, who maintenance the corrugating machines as well as the machines that prepare the cartons. During discussions with Mr Kane and Mr Cashion, the difference between the metal award and the printing awards was discussed. One of the differences was, I think it is termed "dirt money" and that has not been taken from those people. The company have recognised the difference and their legitimate entitlement to that.

PN37

The one area that would possibly need clarification for the Commission would be in regard to sick-leave provisions. Mr Nicholson is correct when he references to the metal award and the Country Printing Award '95, which for the Commission's information is still going through the stripping-back exercise. We have called it "gone with the wind." I feel that that possibly may need some clarification from the company. The company may be able to get clarification from their pay office prior to the cessation of this hearing. I don't know if that call could be made and whether that would assist the Commission.

PN38

Quite clearly the Country Printing Award, as the Federal award, had to apply. That award didn't particularly countenance coverage of corrugating, although it is within its scope. We feel that the enterprise agreement, because of the nature of the industry, particularly covers the long number of hours, etcetera, which have to be worked in that industry which has to be responsive to any calls from potential customers. Just anticipating perhaps a question from the Commission in regard to the 5 per cent increases. They have been prescribed to be paid for all purposes and by that we contend that all purposes, and the company is agreed to this, includes annual leave, shift loading, shift penalties, as well as overtime and wherever that - what constitutes the workers' ordinary rate of pay is paid, that will include the 5 per cent.

PN39

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, again, Mr Nicholson, I will direct this question at you but I'm not particular as to who is able to answer my question. The statutory declaration that you provided to the Commission, Mr Nicholson, references in paragraph 6.2 the Graphic Arts General Interim Award 1995 as at 1 January 2000.

PN40

MR NICHOLSON: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: The parent awards referenced in clause 4, as we have already indicated, add to that Graphic Arts Award the Metal Engineering and Associated Industry Award 1998 and the Country Printing Award 1959, which must be nearing a pensionable age at this stage. The understanding that I have of the application of the no disadvantage test is that the Commission is required, and in this case has endeavoured to do so, to apply the no disadvantage test to those three awards in their current form.

PN42

MR NICHOLSON: Yes.

PN43

THE SENIOR DEPUTY PRESIDENT: Do you as the union involved have any objection or disagreement with that approach?

PN44

MR NICHOLSON: We haven't at this point. I think the Commission would like the explanation of why we are using the 1995 award when the Graphic Arts Award 2000 stipulates higher rates of pay than that award. I think that is the problem where the Commission may be thinking there may be disadvantage.

PN45

THE SENIOR DEPUTY PRESIDENT: Well, that is part of the problem, Mr Nicholson. The other part of the problem is the application of wage rates and conditions to personnel covered by this agreement who would otherwise potentially be covered by the Metal Engineering and Associated Industries Award of 1998.

PN46

MR NICHOLSON: We don't believe there are any disadvantages by applying those agreements. The 2000 award, the Graphic Arts 2000 Award was simplified and there were certain things lifted out of that award that we believed disadvantaged our members, and this is why we turned back to the Graphic Arts Award 1995. The Country Printing Award is as is, it has not been simplified to this date. The rates of pay shown in the 2000 award are higher than the rates of pay shown in the 1995 award, as it stood in 2000, but because the people on site, the employees on site are receiving over award payments it has been recognised that the 5 per cent increase would be paid on that rate of today in 2001. So we don't see any disadvantage there.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you. I think the best way of approaching my next set of questions is to package them up and ask whether you would see any difficulty associated with providing the Commission with a written undertaking that confirms that in your view the no disadvantage test as applied against the current provisions of the Metal Engineering and Associated Industries Award, the Country Printing Award and the Graphic Arts Award, with particular relevance to the decisions of Senior Deputy President Marsh of 5 August 1999 contained in Print R7898 and 8 December 1999 contained in Print S1715.

PN48

The second issue that I would like covered in a written undertaking is confirmation of the arrangement agreed with the employer in relation to sick-leave provisions. Thirdly, I would like the basis for the wage increases identified in clause 6 of the agreement to be clarified; that is, upon what dollar amounts are those percentage increases to be applied. As you would probably recall from the proceedings a short time ago in this Commission I am just anxious to clarify those issues now so that there can be no later confusion over those rates, particularly as we are potentially talking about at least one award which may not have received safety net adjustments for some time.

PN49

If those wage increases were to be applied to the award rates in that award I would be concerned that there would be the potential for both confusion, to say nothing of the potential for a failure in terms of the no disadvantage test. Then I would also like an undertaking to address the operation of the dispute resolution clause in the agreement insofar as that dispute resolution clause might need to be availed by an employee who may not be a member of a relevant union. I would like the undertaking to confirm that the reference to the three awards specific dates in clause 4 of the agreement does not thereby incorporate adoption of any provisions that would be contrary to the provisions of the Workplace Relations Act with specific reference to freedom of association requirements.

PN50

Now, I realise that I have provided you with a suite of requests in that regard. We will ask whether the transcript can be made available to you in a relatively short period of time, but without endeavouring to answer any of those questions now, can you advise me as to whether or not it is likely that there would be a problem associated with that material?

PN51

MR NICHOLSON: No, I don't think there will be any problem supplying that information. I could possibly answer one on the disputes settlement procedure now, which may - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Well, look, it might be better if I left that question with you so as you could incorporate it in your written undertaking to me.

PN53

MR NICHOLSON: Yes, that will be fine.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Kane, can I ask that the employer provide me with also a written undertaking in that regard addressing the same suite of issues, with the exception that I would not expect the employer to have to comment on the operation of the three nominated awards insofar as their compliance with the Workplace Relations Act, and specifically the freedom of association provisions contained in that Act. But I would ask the employer to include in the undertaking provided to me reference to the publication on noticeboards in both of the sites to be covered by this agreement of an advice that indicates that employees who wish to access the detail of the three awards nominated in clause 4 of the proposed agreement could do so by way of either reference to dedicated personnel within the company or by way of a reference to nominated personnel from the union.

PN55

MR KANE: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: Now, should the company and the union decide to put in a collective undertaking I am quite happy for that to be done; that is, I don't necessarily require two separate undertakings, but I will require them in writing.

PN57

MR KANE: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: Do you envisage a problem in that respect?

PN59

MR KANE: No.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis I would indicate to the parties that subject to receipt of those undertakings and to my consideration of them, I will certify the agreement from that date. The agreement, obviously, has been publicised and made available to employees of the company in accordance with the provisions of the Act. The agreement, although complicated by its reference to three specific awards covering different groups of people, has clearly been reached through a process envisaged by the Act and I am satisfied that it is of a duration and a constitution which is envisaged by section 170 of the Act.

PN61

I will require the information that I have outlined to the parties to complete my consideration of the question of whether this agreement ought to be certified. In the event that I am satisfied that it should be so certified the certificate will be forwarded to the parties in due course. In the event that I continue to have concerns I will undertake to the parties that I will recall the matter so that we can outline those concerns and address them. I need to make the point that I am raising these issues not necessarily - certainly not from my perspective, to be cantankerous or necessarily to inhibit the certification of the agreement.

PN62

It is simply that the provisions of the Act are quite clear and that there is, in my view, a very real obligation to ensure that we understand, as in both the Commission and the parties and the employees, understand what it is that is being certified now, rather than certifying something that is inherently vague and likely to cause difficulties in the future. I appreciate that a great deal of work has gone in to the negotiation of this agreement. I would be happy to receive the undertakings as soon as the parties can forward them to me and I will undertake to address the matter with all appropriate urgency.

PN63

On the basis that I am happy to certify the agreement I can simply indicate to the parties that I wish you all the very best in the performance of safe and efficient work pursuant to it.

PN64

MR PARHAM: If the Commission pleases, may I ask a question of the Commission?

PN65

THE SENIOR DEPUTY PRESIDENT: You may certainly ask a question of the Commission. The issue is whether or not I am able to answer your question, but I will endeavour to do so.

PN66

MR PARHAM: I'm sure you will be able to, Commissioner. In regard to the agreement as an enterprise agreement you notice that we have got an attachment 1 which references the redundancy agreement, which is a copy of - modified for South Australia - the ..... Industries, Visy Industries Group, is do I assume that that is part of the EBA?

PN67

THE SENIOR DEPUTY PRESIDENT: I am indebted to you for the question. I have overlooked one of my yellow sticky notes that Mr Nicholson will surely thank me for because it does raise a - that appendix does raise a question, it raises two questions in my mind, that I should perhaps have included in my list of requests to be addressed by way of the undertaking. I would need that undertaking to clarify that the intention of the parties was that attachment 1 form part of the agreement, and I specifically in that respect refer to the fact that attachment 1 has at the top of the page the words "without prejudice."

PN68

Should the agreement be certified with this attachment as part of it then it would not be a without prejudice document, it would be a highly prejudicial document that identified the commitment of the parties. So I would need the undertakings to clarify the standing of that attachment 1. In that same regard the attachment 1 identifies that the company, for the purposes of this agreement, will mean those operating entities listed in schedule A of this agreement.

PN69

Now, I'm afraid that schedule A escapes me so I would also appreciate the parties referencing whether or not that - or confirming that that attachment actually applies to the personnel covered by this agreement. I am indebted to your question, thank you, although Mr Nicholson and Mr Kane may not be. I think it is important that you clarify that - - -

PN70

MR NICHOLSON: Yes, I will do.

PN71

THE SENIOR DEPUTY PRESIDENT: - - - in the undertaking provided to me.

PN72

MR NICHOLSON: Would that be by written confirmation?

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Now, in adjourning these proceedings I'm aware that I have raised a number of questions. I sincerely hope that those questions do not cause the parties to come asunder but it also - it would be appropriate for me to indicate that should the parties require clarification of any of the issues that I've raised I would be very happy to convene a conference to clarify those questions and I would invite you to contact my office if you needed to do so. On that basis I adjourn these proceedings. Thank you.

ADJOURNED ACCORDINGLY [11.26am]