C2001/5170, Transcript of Proceedings [2001] AIRCTrans 3361 (3 December 2001)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N 1320
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/5170
AG2001/6095

ARTIFICIAL FERTILIZERS AND CHEMICAL
INDUSTRY AWARD 2001

Application under section 113 of the Act by the
Australian Workers Union to vary the above award

INITIATING EXPLOSIVES SYSTEMS AGREEMENT 2001-2003

Application under section 170LJ of the Act by the
Australian Workers Union for an agreement with
organisations of employees (Division 2)

MELBOURNE

9.00 AM, MONDAY, 19 NOVEMBER 2001

Continued from 30/10/01 before Commissioner Gay

PN29

MR G. MORGAN: I am site manager for Initiating Explosives Systems. I am here with Liz Woodside.

PN30

MR M. BOROWICK: I appear on behalf of the Australian Workers Union. I apologise for my late arrival this morning.

PN31

THE COMMISSIONER: Yes, thank you. Senior Deputy President, further to your order that the Australian Workers Union notify each of the award respondents about today's hearing and the nature of the proceedings, the National Secretary of the Australian Workers Union, Mr Shorten, sent correspondence to the respondents to the Artificial Fertilizers and Chemical Industry Award 2001, regarding an application by the Australian Workers Union to vary the Artificial Fertilizers and Chemical Industry Award 2001 in case number 2001/5170. And the letter says:

PN32

The Australian Workers Union has made application to vary the Artificial Fertilizers and Chemical Industry Award 2001, the award. The application, if granted, will extend the coverage of the award to the operations of Initiating Explosives Systems Pty Limited in the State of Victoria. The Commission has directed that the Australian Workers Union notify all respondents to the award that the matter will be heard at 9 am on 19 November 2001. A copy of the notice of listing and application in this matter are attached to this correspondence. Information regarding this application can be obtained by contacting Michael Borowick in my office.

PN33

And I wish to tender that correspondence which is attached a notice of listing for today's hearing, a notice from the Commission headed, to the persons and organisation bound by the above mentioned award, and an application to vary the award. And attached to that is the registered post lodgment document demonstrating service.

PN34

THE SENIOR DEPUTY PRESIDENT: I will mark the bundle of correspondence relating to notification of the hearing as exhibit AWU1.

PN35

MR BOROWICK: Senior Deputy President, there was an AWU1 on the last occasion.

PN36

THE SENIOR DEPUTY PRESIDENT: Right, thanks. Exhibit AWU3, I think is the next one.

EXHIBIT #AWU3 CORRESPONDENCE RE NOTIFICATION OF HEARING

PN37

MR BOROWICK: Senior Deputy President, on the last occasion we sought - well, the nature of the proceedings is to rope in Initiating Explosives Systems to the Artificial Fertilizers and Chemical Industry Award 2001.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. I might indicate that this matter was allocated to Commissioner Gay, who has reported to me as to what transpired on the last occasion. So I have got some idea of what is going on, but nevertheless I think you should place it on the record.

PN39

MR BOROWICK: Yes. If you are of the mind to grant the application, it would be in part settlement of an industrial dispute in C number 34896 of 1999.

PN40

THE SENIOR DEPUTY PRESIDENT: Sorry, what is that number again?

PN41

MR BOROWICK: 34896 of 1999. And Commissioner Gay raised the matter of the dispute finding, so it might be appropriate for me to tender the record of finding in that proceeding. And also a letter dated 10 June 1999 from their National Secretary, Mr Muscat, to the Industrial Registrar. By virtue of paragraph 1 of the record of finding, the dispute existed in the State of Victoria. And paragraph 2 states that the parties to the dispute are the Australian Workers Union on the one part, and the employers listed in attachment 8 of the dispute notification dated 10 June 1999, received in the Victorian Registry on 11 June 1999.

PN42

For that reason I have tendered the notification of alleged industrial dispute dated 10 June 1999. And if the Commission goes to page 4 of that document, it states, amongst the entry of employers listed, Initiating Explosives Systems Pty Limited, Air Course Road, Helidon, Queensland.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, I see that, thank you. I will mark the notification of an industrial dispute dated 10 June 1999 as exhibit AWU4, and the record of finding as exhibit AWU5.

EXHIBIT #AWU4 NOTIFICATION OF INDUSTRIAL DISPUTE DATED 10/06/1999

EXHIBIT #AWU5 RECORD OF FINDING

PN44

THE SENIOR DEPUTY PRESIDENT: So it is in part settlement of the dispute that was found on 30 June 1999 that you seek to have the company made a party to the Artificial Fertilizers and Chemical Industry Award 2001, and to have the scope clause of that award varied?

PN45

MR BOROWICK: That is correct, Senior Deputy President. Initiating Explosives Systems and the AWU were parties to the Initiating Explosives Systems Pty Limited Ironworkers Deer Park Award 1987. That award has been set aside by the Commission. What the parties agreed was that an award should be put in place, but that the award should be - what award should be put in place should be subject - should be a matter for discussion amongst the parties whilst we were negotiating a new enterprise agreement, which we have done. And that matter is also before you today, so we come with a package so to speak.

PN46

The parties, IES, is consenting today to being made party to the Artificial Fertilizer and Chemical Industry Award 2001, on the basis that the parties have reached agreement on a whole range of issues, award respondency and the matters contained in the enterprise agreement which we are seeking to have certified today.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Borowick.

PN48

MR BOROWICK: Senior Deputy President, do you want me to deal with the matter of the certification of the enterprise agreement, or will we stay with the award for the time being?

PN49

THE SENIOR DEPUTY PRESIDENT: I would like to hear the company on the respondency to the award in the first place, and then I will deal with the certified agreement. I still see some obstacles in your path. We may go off the record, if that is a more expeditious way to deal with it, but perhaps if I can just hear the attitude of the company to being made a respondent to the award. Yes, Mr Morgan.

PN50

MR MORGAN: The company's attitude is we are aware that our award which we had was set aside. We spent a fairly lengthy time in negotiation with the AWU to get a site agreement, a certified agreement, and we spent a fair bit of time ensuring that the conditions of employment at IES under our certified agreement match back to the Artificial Fertilizers Award. So we are very much in favour and very comfortable with being roped into that award.

PN51

THE SENIOR DEPUTY PRESIDENT: Okay. Is that the only site from which you work?

PN52

MR MORGAN: No, sir, we have two sites, our head office is in Halidon in Queensland.

PN53

THE SENIOR DEPUTY PRESIDENT: And you operate from Queensland as well, in the manufacturing sense?

PN54

MR MORGAN: Yes, we do.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, and the other site is?

PN56

MR MORGAN: The other site is in Deer Park in Melbourne, which is also a manufacturing site.

PN57

THE SENIOR DEPUTY PRESIDENT: Just so that I understand it, what is the nature of the company?

PN58

MR MORGAN: We make a range of explosives which are used in the mining industry.

PN59

THE SENIOR DEPUTY PRESIDENT: And how many employees do you have?

PN60

MR MORGAN: Across the business, we have 260, 130 at each site.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you. Well, I am prepared to vary the award in the manner indicated, but before I do so perhaps it is appropriate to deal with the application for certification of the agreement. Can I just indicate to you, Mr Borowick, that I have these concerns before I could certify it. I am not sure that I can certify it today. If you look at the statutory declarations in support of certification, and particularly part 7 of the statutory declarations in support - you do not have one, Mr Morgan, available?

PN62

MR BOROWICK: Senior Deputy President, I was not sure how to handle this when I swore my statutory declaration because Initiating Explosives Systems Pty Limited at that point in time was not a respondent to the award, and - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, you can see my problem, can't you?

PN64

MR BOROWICK: Yes. And neither were we an applicant for a section 170XF determination. But Mr Melham, the Assistant Secretary of the Victorian Branch of the Australian Workers' Union, has sworn a statutory declaration which deals with his comparison of the terms of the Artificial Fertiliser and Chemical Industry Award 2001 and terms of the proposed agreement.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps you had better hand that up because, as you could see, my difficulty was that there is nothing in the stat decs to indicate that the agreement passes the no disadvantage test as against the award to which the company consents to becoming a party. Let me just have a look at this statutory declaration of Mr Melham's.

EXHIBIT #AWU6 STATUTORY DECLARATION OF MR MELHAM DECLARED ON 30/10/2001

PN66

THE SENIOR DEPUTY PRESIDENT: That, Mr Borowick, seems to go part of the way, doesn't it? It indicates the clauses of the award that do not apply if the agreement governs the terms and conditions of employment. How does it demonstrate that the no disadvantage test is passed?

PN67

MR BOROWICK: Senior Deputy President, on balance there will be no reduction in the overall terms and conditions of employment. The agreement provides for a 4 per cent increase in the first year of its operation, and a 4 per cent increase in the second year of its operation. In addition, the employees receive a payment of $200 net in the December of each year that the agreement applies. There are also a number of other benefits. So we say that on balance there would be no reduction in the overall terms and conditions of employment.

PN68

The increases and other benefits provided for by the agreement considerably outweigh the payment of the industry allowance, leading hand allowance and special rates, if any of those were in fact applicable to the employees of Initiating Explosive Systems.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, very well. Now, while you are on your feet, can I just take you to another couple of matters. Could you tell me how the terms of the proposed agreement were explained to the employees? In answer to question 6.7 which asks:

PN70

Before approval was given, were reasonable steps taken to explain the terms of the agreement?

PN71

The answer is that the terms of the agreement were explained. Could you tell me how that explanation took place, please?

PN72

MR MORGAN: Mr Deputy President, there were a number of meetings in which all employees were given advance notice and I attended at least one myself. It was very well attended. The meeting was addressed - well, at least the meeting I attended was addressed by myself and senior representatives of the management of the company. There was an opportunity for employees to ask questions. The meeting went for in excess of an hour. Employees did ask questions. In fact at that meeting the employees rejected the terms of the proposed agreement therefore it was necessary for further negotiations between the parties and then at a subsequent meeting valid majority approved the terms of the modified agreement.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN74

MR BOROWICK: I can assure you, Senior Deputy President, that the debate was fairly robust and everyone had a very good understanding of the matters contained in the agreement.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, well, I am satisfied as to that matter then, thanks. Now, it appears from what Mr Morgan has said that the agreement relates to part of a business, of a single business, is that right?

PN76

MR BOROWICK: Yes, it is only those employees that are employed in the State of Victoria at the Deer Park site.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, I think in the statutory declarations it was suggested that it applies to the whole of the single business but it appears from what has been said to me today that it applies to a geographically distinct part of a single business. Is that the way to categorise it?

PN78

MR BOROWICK: Yes, that is correct, sir.

PN79

THE SENIOR DEPUTY PRESIDENT: Mr Morgan?

PN80

MR MORGAN: Yes, that is correct. The intention of this to apply only to our operations in Victoria and not to our operations in Queensland.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, and that is clearly geographically distinct from Queensland. Yes, very well. That takes me to the final matter that I may trouble you with I think. No, two matters. In clause 48, the grievance procedure, the last paragraph, I am not quite sure what that means and I think it ought to be clarified on the record, Mr Borowick. It is in particular to the words, "Without a formal withdrawal from Commission proceedings". I am not quite sure what is intended by that paragraph.

PN82

MR BOROWICK: Might we go off the record for a moment, Senior Deputy President?

PN83

THE SENIOR DEPUTY PRESIDENT: Yes.

OFF THE RECORD

PN84

THE SENIOR DEPUTY PRESIDENT: We have had a discussion as to the meaning of the grievance procedure in clause 48 and, Mr Borowick, you want to address me on that final paragraph?

PN85

MR BOROWICK: Yes, Senior Deputy President. The agreement provides a role for the Australian Industrial Relations Commission. Whilst we do not have any disputes with the company if there was a dispute that arose the agreement clearly contemplates that we would seek the assistance of the Commission. In fact clause 48(f) has been strengthened in that I believe the previous agreement did not provide a role for the Commission to arbitrate and this agreement that we seek certification of today does provide the Commission with such a role.

PN86

It would be our intention in any dispute if we were not able to resolve the matter at a local level seek the assistance of the Commission and be bound by any recommendation or determination made by the Commission and I do not believe there would be any circumstances in which we would seek to withdraw from the Commission proceedings until they were exhausted.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Borowick.

PN88

MR BOROWICK: And we have allowed them to become exhausted. If the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Morgan, is that you understanding as well?

PN90

MR MORGAN: Yes, sir, it is.

PN91

THE SENIOR DEPUTY PRESIDENT: Thank you. And the company would likewise follow the procedure in the manner indicated by Mr Borowick?

PN92

MR MORGAN: Yes, it would.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Finally, while we were off the record I discussed clause 54 with the parties who have both assured me that if a person employed by the company wished to seek assistance from somebody other than the AWU there would be no impediment placed in that person's path. In those circumstances I can indicate that I will vary the award as requested by the AWU and consented to by the company and that I will certify the Initiating Explosive Systems Agreement 2001-2003. I am satisfied that - sorry, Mr Borowick, do you want to say something?

PN94

MR BOROWICK: Yes, Senior Deputy President. We have handed up a draft order. It is marked as exhibit AWU2.

PN95

THE SENIOR DEPUTY PRESIDENT: You might just have to give me another copy of it, Mr Borowick. I have found it, thank you.

PN96

MR BOROWICK: Paragraph (b) provides that the order would come into force on and from 30 October 2001 but if the Commission was more comfortable with today's date that could - - -

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, it will come into force on today's date and it will be varied in terms of a AWU2. Thank you, Mr Borowick.

PN98

MR BOROWICK: If the Commission pleases.

PN99

THE SENIOR DEPUTY PRESIDENT: And as for the agreement, that is an agreement about matters pertaining to the relationship between an employer that is a constitutional corporation that is carrying on part of a single business and employees employed by the employer in the part of the single business and whose employment is subject to the agreement. I am satisfied having heard the parties that the part of the single business is geographically distinct from the other part of the business which is in Queensland.

PN100

I am also satisfied that the union has at least one member in the part of the business to which the agreement applies and that it is entitled to represent that person's interests. I am also satisfied in particular having regard to the statutory declaration of Mr Sezza Melham and the submissions of Mr Borowick that the agreement passes the no disadvantage test, that it was made in accordance with section 170LJ and a valid majority of the relevant employees genuinely approved it. I am satisfied that the explanation of its terms was appropriate in the circumstances and that it includes procedures for preventing and settling disputes between the relevant parties.

PN101

It specifies 30 June 2003 as the nominal expiry date and that is not more than three years after the date on which the agreement comes into operation. There are also no reasons in section 170LU as to why I should refuse to certify the agreement and accordingly the agreement will be certified. It will come into operation on today's date and it will operate in accordance with its terms from today's date. If there is nothing else the Commission will adjourn.

ADJOURNED INDEFINITELY [9.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU3 CORRESPONDENCE RE NOTIFICATION OF HEARING PN37
EXHIBIT #AWU4 NOTIFICATION OF INDUSTRIAL DISPUTE DATED 10/06/1999 PN44
EXHIBIT #AWU5 RECORD OF FINDING PN44
EXHIBIT #AWU6 STATUTORY DECLARATION OF MR MELHAM DECLARED ON 30/10/2001 PN66