C2001/5708, Transcript of Proceedings [2001] AIRCTrans 3423 (6 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2001/5708

AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING
AND KINDRED INDUSTRIES UNION

and

CPI GROUP LTD

Application under section 170LW of the
Act for settlement of dispute re referral
of alleged dispute

AG2001/6818

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by CPI Group Ltd and Others for
certification of the CPI Group Ltd
Wetherill Park Enterprise Agreement 2001

SYDNEY

11.07 AM, THURSDAY, 22 NOVEMBER 2001

Adjourned sine die

PN1

THE COMMISSIONER: I'll take appearances in both matters.

PN2

MR T. ABRAMS: I appear on behalf of the Printing Industries Association of Australia and with me is MR B. WRIGHT, production manager from CPI.

PN3

MR A. CURRY: I appear on behalf of the AFMEPKIU.

PN4

THE COMMISSIONER: There are two related matters listed today. The first is an application dated 5 November 2001 by the Printing Industries Association on behalf of the employer CPI Group Ltd for the certification of an agreement. As I see that application there are some difficulties associated with it that make its certification unlikely at this time. The second matter listed today is an application pursuant to section 170LW of the Workplace Relations Act by the AMWU dated 7 November for the settlement of a dispute in relation to a certified agreement in accordance with the parties existing certified agreement dispute settling procedures.

PN5

The employer organisation, the Printing Industries Association, in a letter to the Commission, dated 9 November seeks that the two matters be joined. That's your application to have them joined. Do you have any objection to them being joined, Mr Curry?

PN6

MR CURRY: At this stage, no.

PN7

THE COMMISSIONER: All right. I note that application and as I understand the issues I will deal with the matters concurrently today. At first instance and for no other reason I'll deal with them in date order so one might lead to the other but the first matter that the Commission was asked to deal with was merely an application to certify an agreement pursuant to section 170LJ. Do you want to deal with that and the joinder issue, Mr Abrams?

PN8

MR ABRAMS: If I may, Commissioner, and I appreciate your tolerance and I accept your opening that in its current form it is impossible for the certifying of the agreement with the AMWU today because the certification is incomplete in that other than - - -

PN9

THE COMMISSIONER: The application is incomplete?

PN10

MR ABRAMS: Yes, it is, it's incomplete, sir, in two parts; one, the document in question is missing a signature, an important signature, from the secretary of the AMWU. That is the CPI Group Wetherill Park Agreement is missing a signature which you don't have but I've just been shown a copy of the document duly signed and also it requires a statutory declaration made by the other party being the AMWU. Sir, you will recall that the matter before you which is the application was the subject of a dispute in matter number 5017/2001 which was - - -

PN11

THE COMMISSIONER: I will recall that will I? Did I deal with it?

PN12

MR ABRAMS: Yes, you did, sir.

PN13

THE COMMISSIONER: It would have been nice if you'd let us know about that beforehand.

PN14

MR ABRAMS: I apologise.

PN15

THE COMMISSIONER: I might have been able to do some homework then Mr Abrams but given I didn't have any prior notification tell me all about 5017?

PN16

MR ABRAMS: 5017, Commissioner, was an application by our organisation for relief under section 127 which was heard by yourself on 19 September and it was seeking - - -

PN17

THE COMMISSIONER: With no disrespect I have tried to resolve a couple of world wars in the meantime, Mr Abrams, so I don't have any immediate recollection of what occurred in the 127 matter on 19 September.

PN18

MR ABRAMS: I accept that, Commissioner, but can I indicate that on that day we were advised that there were bans and limitations put in place by the AMWU over the negotiations that were then taking place over this very enterprise agreement. The matter was resolved by vote of Mr Curry's members who lifted their bans and limitations and supported and endorsed the certification of the agreement as per the exhibit in those proceedings A1.

PN19

THE COMMISSIONER: Did I issue 127 orders?

PN20

MR ABRAMS: If my memory serves me correctly you requested that we advise you that those bans and limitations had been lifted on the day the union indicated they had been and we sent that advice to you saying that those bans and limitations had been lifted and, therefore, the section 127 orders then were dispensed with because the bans and limitations had been removed.

PN21

Exhibit A1 in that matter is in identical terms to the certification of the agreement which is in this application. If you can bear with me, if I can just touch on a brief history. It is important to note that at CPI Wetherill Park there is ostensibly one enterprise agreement in two parts, one having application to the Transport Workers' Union under a State award, the General Mixed Industries Award, and the other party Federally registered is the AMWU.

PN22

THE COMMISSIONER: What's the nature of the employer's business? Can you remind me?

PN23

MR ABRAMS: They are a paper manufacturer; they supply paper in large measure to the printing industry, they sheet paper and they cut paper to size.

PN24

THE COMMISSIONER: So the production employees are the ones that are covered by the Federal legislation or by a Federal award?

PN25

MR ABRAMS: Correct.

PN26

THE COMMISSIONER: And the supporting transport services are covered by a State award?

PN27

MR ABRAMS: Yes, sir.

PN28

THE COMMISSIONER: But there is a single enterprise agreement?

PN29

MR ABRAMS: But there is a single enterprise agreement with identical terms and conditions applying to both and the remuneration, Commissioner, and we'll come to that, sets out a classification structure and it refers to their appropriate award. What happened was that a couple of enterprise agreements ago there was an agreement that those employees who, prior to that agreement, were being paid an amount equal to or in excess of the new increased amount in clause, as it was then known as, 8(1) will remain at the same rate of pay. In other words, there was an agreement that those employees who were paid above the table as set out in the old enterprise agreement that there be a grandfather clause and they would remain on that salary until such time as the other employees caught up.

PN30

THE COMMISSIONER: In other words, some employees rates were blue circled for the time being?

PN31

MR ABRAMS: Correct. Now, what happened was and as a company's fault but the wages being performed by the head office in Melbourne paid inadvertently to those employees, notwithstanding there was an agreement in place, signed off by the employees. Notwithstanding that the pay office in Melbourne inadvertently paid all employees.

PN32

THE COMMISSIONER: Roughly when did this occur?

PN33

MR ABRAMS: 1998, a Mr Wright who is with me was intimately involved in those discussions. Some of those employees, Commissioner, three or four, were members of the TWU and three or four were members of the AMWU. I think it was about three each or thereabouts. So what happened then was that there was a bit of a stink if I can put it in those terms and - - -

PN34

THE COMMISSIONER: That's an old fashioned industrial term, Mr Abrams, but we understand what you mean.

PN35

MR ABRAMS: - - - the upshot of it was, Commissioner, was the company, in fact Mr Wright, decided not to remove it from those employees but to continue the payment of it. But he spoke to them clearly and said, this is the last time. Next time you will be red circled or blue circled or grandfathered or whatever expression you would like to put to it. But they clearly understood that that was it. I have got to say that in the current Enterprise Agreement negotiations there had been a whole new number of players including myself, including Mr Curry. Mr Wright was not involved. Stopping there, Commissioner, I should advise that there has been - as you would be well aware in the printing industry, there are some major turbulent period and CPI has had to shed a number of staff. 20 was their last count and including in that was their State manager and their human resources manager who was involved with me in these EBA discussions and the matters necessitated Mr Wright being prevailed upon to sort of come back into this HR role.

PN36

I am sorry if I am giving a long winded dissertation here but I am just trying to put it in the proper context.

PN37

THE COMMISSIONER: I think it is necessary for me to understand the context of both of these applications, Mr Abrams, so long as Mr Curry doesn't have any objection, I don't mind you filling me in on the background.

PN38

MR ABRAMS: If I can proceed.

PN39

THE COMMISSIONER: He may of course have a slightly different version of the events.

PN40

MR ABRAMS: That's fine and he can put his case. So what happened then, Commissioner, was that unbeknown to the players, certainly myself and Mr Curry, we were unaware of the problem that I have just indicated. That is the inadvertent payment and the agreement with Mr Wright to those employees that, okay we will pay it, but this is the last time. As a consequence the Enterprise Agreement that is before you fails to mention that a absorption reference. The company in good faith and in the spirit of the current negotiations rightly or wrongly paid the - and this agreement before you has an increase of 9 per cent in two parts, 4 and 5.

PN41

Operative from 1 August this year, rather than make a retrospective payment, the company has already commenced paying the initial 4 per cent, Commissioner. However, the human resources manager at the time learnt of the previous absorption clause and said, well hold on some of you guys are paid above the classification rate and you are not going to get it and declined the initial 4 per cent payment to those half a dozen employees. I should advise you that this agreement impacts on 50 employees all up and there is about three TWU and three AMWU members.

PN42

I should also advise you, Commissioner, that the Transport Workers Union like the AMWU notified the New South Wales Industrial Relations Commission of the dispute over the very same matter and that matter was heard by the Commission yesterday and the Commission handed down a direction in those matters and I appreciate it is in a different jurisdiction. But the Commission did hand down directions of which he indicated he would be putting in writing and in order to reflect that the parties, the TWU and the CPI last night signed a memorandum of understanding between them as to what those directions were.

PN43

Perhaps if it might assist I can table a copy of that Memorandum of Understanding.

PN44

THE COMMISSIONER: The single page document now tendered by Mr Abrams I will mark as exhibit A1 in these proceedings.

EXHIBIT #A1 COPY OF MEMORANDUM OF UNDERSTANDING

PN45

MR ABRAMS: Commissioner, exhibit A1 is a signed document by the Transport Workers Union and the CPI. It is this agreement in relation to the rates of pay arising from the certification of the CPI Group Limited Wetherill Park Agreement, it was agreed by the parties to the above agreement that for existing employees only - - -

PN46

THE COMMISSIONER: Just before you go on, that CPI Group Wetherill Park Agreement is not the agreement that is currently before me. It is an agreement that has been certified by the New South Wales Commission.

PN47

MR ABRAMS: Well, it is to be certified by the New South Wales Commission.

PN48

THE COMMISSIONER: Is to be certified, but in identical terms.

PN49

MR ABRAMS: Exactly.

PN50

THE COMMISSIONER: Right.

PN51

MR ABRAMS: It was agreed by the parties to the above agreement that for existing employees only, who are paid over the agreement rate as set out in table 11.1(b) of this agreement, which is identical to 11.1(b) is identical to the one before you in the application, will, one, receive the full increase in two parts as per this agreement in addition to their existing rates of pay. Two, this increase in their wages will be a one off payment for the term of this agreement only and would not be paid in any subsequent certified agreement.

PN52

Three, those employees who prior to this agreement are already being paid an amount equal to or in excess of the new increased amount in clause 11.1(b) will remain at the same rate of pay as applying at the end of the term of the above agreement. Four, the above employees to whom it supplies, acknowledge and agree to absorb any increases arising from any future certified agreement nor would they make future over award claims.

PN53

THE COMMISSIONER: So it is in effect formalising a new grandfather arrangement.

PN54

MR ABRAMS: Correct. I would have to say, Commissioner, that really, with respect was the only outcome that the New South Wales Industrial Relations Commission indeed could order last night based on the evidence before them, because clearly, notwithstanding the fact that there was a spirit of intent of a 1998 enterprise agreement that did have that grandfather clause. This one, inadvertently did not and they said, well, tough, we would seek that order.

PN55

So we were happy and the company was happy then to accept that decision and we have signed off and with the greatest respect, Commissioner, we would be seeking that a similar direction to those employees of the AMWU like their TWU counterparts receive an identical direction and because it is ingredient for industrial suicide to have two sets of conditions in place. Already we have a problem, Commissioner as you would appreciate, a number of employees doing identical work to the TWU who will be grandfathered and we are going to have a number of employees working alongside Mr Curry's members, indeed some of his own members working alongside Mr Curry's members, who are going to be hopefully also grandfathered.

PN56

Whilst it was the company's preference that those existing employees have their rates absorbed, the company was prepared to accept the direction of the Commission in full and with the greatest respect, we would be seeking a direction from this Commission in identical terms. I would also add that under section 170MD(6), there is provision for the Commission on application by any person bound by a certified agreement by order vary a certified agreed for the purpose of removing ambiguity or uncertainty and I think that it would be appropriate for any direction that you might order the appendixed enterprise bargaining agreement or the certified agreement to remove that ambiguity, as indeed, Commissioner Connor in the NSW Industrial Relations Commission last night will be doing in that NSW cousin.

PN57

I apologise for being longwinded but it is important for the basis and I am happy to table a similar memorandum of understanding between CPI group and the AMWU.

PN58

THE COMMISSIONER: Has an agreement been entered into between CPI Group and the AMWU?

PN59

MR ABRAMS: We have forwarded to the union a document last Monday. We faxed it to the union. We haven't - 19 November we sent them a copy. It might be appropriate for Mr Curry to respond.

PN60

THE COMMISSIONER: Perhaps just before you sit down, Mr Abrams, just a thought. Mr Curry can think about this at the same time before he responds to what you have already placed on the public record. Really just as a matter of clarity, rather than having appendices to an agreement, one wonders whether the better way of dealing with it is certainly to exchange the agreement document between the parties and then there is a formal record of the agreement reached today, or whenever, sometime after 19 November. One wonders whether in fact, the content of it would not then be better absorbed into the certified agreement in the form that you seek in the longer term.

PN61

In other words, not pressing on with the LJ application at this time in its present form but taking the LJ agreement as it currently stands varying it as you so choose to incorporate the terms of the grandfathering agreement and return on another day so you can get your certification. It is food for thought. The only down side of that is I perceive from what you have indicated that you would then not have two precisely identical agreements applying at the one work place. You would have one with an appendix. You would have one with the content of a similar appendix absorbed into the formal terms of the agreement. But that in fact might provide you with the necessary insurance that you need on a future date, that you haven't had in the predicament to date.

PN62

MR ABRAMS: Thank you for that. This enterprise agreement before you has a two year life and anything goes next time round, of course. It is up to the parties to raise any issue. But for this particular one we would certainly like to have a mirror reflection of the New South Wales Commission, and I apologise if that puts this Commission in an awkward situation

PN63

THE COMMISSIONER: It doesn't put me in any awkward position at all.

PN64

MR ABRAMS: But we need consistency.

PN65

THE COMMISSIONER: In any event, your application to certify the agreement presently before me would have to be amended so as to incorporate an appendix at the instigation of the parties.

PN66

MR ABRAMS: Yes.

PN67

THE COMMISSIONER: I can't direct you to put something in an agreement. They are your agreements. You are consenting adults, you have to reach the agreement on the content of the agreement and bring it to me for certification. I can't direct you to add something to it, or to delete something from it. It is not my business. The only amendment that would need to be made would be an agreement between the parties to attach the appendix and for that appendix to then be added to the current application and the relevant statutory declarations to be varied accordingly.

PN68

MR ABRAMS: I wonder if it could be, notwithstanding anything Mr Curry has to say, that we would be pressing for a direction from yourself and a recommendation. Once that was done a memorandum of understanding between us should suffice and resolve this particular dispute. Then we can move on and register the certified agreement in its current form.

PN69

THE COMMISSIONER: Mr Curry?

PN70

MR CURRY: Commissioner, Mr Abrams has basically stolen my thunder of what I was going to say. I think he has already agreed that we personally negotiated good faith. We believe that the 4 per cent and 5 per cent that was finally offered to members was a genuine across the board agreement. It wasn't until - - -

PN71

THE COMMISSIONER: But presuming those members didn't enlighten you of the fact that some of them were already grandfathered, their rates of pay and classifications were already grandfathered.

PN72

MR CURRY: That was mentioned verbally back in 1998 when the 2000 agreement was agreed upon and never was mentioned again. They just assumed that it was a one off conversation they had with Mr Wright and as such both have forgotten about it entirely. Now we negotiate on behalf of members and we agree that 4 per cent and 5 per cent would be across the board and everybody would receive it. It wasn't until a final vote was taken in endorsement of the agreement that a few people mentioned to me that they didn't seem correct.

PN73

We approached Ms Bricknell about it, and that was when we found this had all taken place. They were obviously very very upset about that. I haven't spoken to Mr Wright. We have come to a gentleman's agreement whereby whatever you recommend we shall follow in this regard.

PN74

This grandfather clause we're talking about, it was only a verbal conversation. I don't think we spoke to everybody involved. There was only a few people were told of it.

PN75

THE COMMISSIONER: Isn't it important, given that this arrangement was entered into only last night at the New South Wales Industrial Commission in respect of the Transport employees covered by the grandfathering arrangement that that be put to those members of yours to whom a similar agreement would directly apply and for you to get some consent from them that that's an arrangement that they are prepared to enter into?

PN76

MR CURRY: Yes. My understanding is that the agreement that I had with Bill, it's not reflected here. Clauses 2, 3 and 4 whereby:

PN77

Employees acknowledge and agree to absorb any increases arising from any future certified agreement and any future over award claims.

PN78

That wasn't agreed between myself and Bill.

PN79

THE COMMISSIONER: Well, is a realistic assessment of the situation is that you do not as yet have a concluded agreement with the employer about grandfathering arrangements?

PN80

MR CURRY: That is correct.

PN81

THE COMMISSIONER: Not at this time anyway.

PN82

MR CURRY: If the employer wants to discuss this when this current agreement runs out, I have no problems, but I in good faith could not sign something like that at this stage.

PN83

THE COMMISSIONER: With respect, what do your members say about it?

PN84

MR CURRY: Well I would speak with the members obviously.

PN85

THE COMMISSIONER: So you say that you don't have an agreement with the employer in identical terms to the TWU arrangement.

PN86

MR CURRY: No, I do not. This wasn't what I agreed with Bill.

PN87

THE COMMISSIONER: I don't know what you agreed and when you had this discussion, but it seems to me that if you want me to play any part in this matter at all, and one of them is a notification of assistance in settling a dispute in relation to the certification agreement, then you better sort out what it is that you want me to assist you with, and in that respect, you probably need to continue with Mr Wright until you come to such an arrangement.

PN88

MR CURRY: With this recommendation its whether the four per cent essentially be paid in full or whether absorption should take place.

PN89

THE COMMISSIONER: I'm sorry, I don't understand. You've reached agreement that the four per cent will be paid and that there will be absorption?

PN90

MR CURRY: No, on your recommendation - we will abide by your recommendation as to whether the four per cent should be paid or whether in fact absorption should take place in this instance. Our argument is that further negotiation of absorption was never mentioned at all.

PN91

THE COMMISSIONER: I don't know what has taken place away from here. You obviously have a different perception of an agreement that you've entered into with Mr Wright. Now, perhaps you need to take a bit of time with Mr Wright and Mr Abrams whilst you are here without me, and firstly sort out what it is that you've allegedly agreed to. If it's different to exhibit A1, and you want me to recommend something different to exhibit A1, then you better let me know what it is that you want me to recommend. I don't want to unnecessarily influence you or tell you what it is that you should be agreeing to if you are uncomfortable with exhibit A1 as reflective of your arrangements with Mr Wright.

PN92

Perhaps you just need to take 10 minutes and sort out whether that is an appropriate agreement. If it's not an appropriate agreement, what is an appropriate agreement and you probably need to bring that to me on another day and let me have a look at it before I recommend it. If you don't do that, in other words if you are not masters of your own destiny, and tell me what it is that you want me to recommend, and just say you are prepared to accept whatever recommendation I make, I might very well recommend something that one or both parties don't like. I don't sense that that is an outcome desired by anybody or desirable of the circumstances for the employees concerned.

PN93

So, do you want to take the opportunity and have a brief adjournment and confer directly with the employer.

PN94

MR CURRY: Yes.

PN95

THE COMMISSIONER: All right, having said that what I'll do is adjourn these proceedings for 10 minutes and give the parties an opportunity to confer directly and I will rejoin you. I will have my associate check back with you in about 10 minutes time. I will adjourn now for 10 minutes.

SHORT ADJOURNMENT [11.45am]

RESUMES [12.10pm]

PN96

THE COMMISSIONER: Mr Curry? No. Mr Abrams?

PN97

MR ABRAMS: Sir, thank you for giving us the time to adjourn. Mr Curry informs me that he told his members today that he would be coming here and he would be taking back to them a recommendation of this Commission. The parties agree to one thing, that we will accept your recommendation and your direction in this matter. The whole genesis of this dispute goes to the question of absorption on the company's part to put into place what was the spirit and intent of some past agreement.

PN98

We can't have a situation where there is a memorandum of agreement with the TWU and a different one applies to the AMWU. We have indicated and indeed by our actions will pay the pay the four per cent to Mr Curry's members who receive over award payments for the life of this proposed enterprise agreement before you. It is certainly the company's intent to ensure that it is tidied up once and for all so we don't have a repeat of what transpired on the last occasion and for our part, we stand by our submissions prior to the adjournment and respectfully request you to make a decision in this matter and we will accept your recommendation.

PN99

THE COMMISSIONER: Mr Curry, do you have anything further?

PN100

MR CURRY: Commissioner, all that we sought today was a recommendation from yourself as to whether the four per cent should be passed on in full or whether absorption would take place.

PN101

THE COMMISSIONER: Will you take any recommendation the Commission makes back to your members with your support that the members accept that recommendation?

PN102

MR CURRY: Yes, that will be my decision in regards to that. In regards as to this memorandum of understanding, unfortunately we can't come to an agreement in regards to that. I believe that is not in the spirit that I spoke to Bill Wright in. I believe the clauses 2, 3 and 4 were never at any stage mentioned and as such I would seek that that is rejected by yourself.

PN103

THE COMMISSIONER: I don't know what it is that you want me to recommend. I have one document here, exhibit A1 that is a grandfathering arrangement between the company and its TWU members. You tell me that's not what you want for your members.

PN104

MR CURRY: It wasn't what we agreed, no.

PN105

THE COMMISSIONER: Well, what is it that you have agreed. I don't know what it is that you have agreed.

PN106

MR CURRY: We agreed simply that, if you recommended we would pass it on in full, no strings attached.

PN107

MR WRIGHT: Commissioner.

PN108

THE COMMISSIONER: Just a moment Mr Wright. Mr Curry is on his feet. You will have an opportunity to respond in a moment, either on or off the record. What I am trying to understand is what it is that Mr Curry is seeking on behalf of his members that he wants me to put into a recommendation.

PN109

MR CURRY: I am seeking that the four percent be passed on in full and that there be no absorption.

PN110

THE COMMISSIONER: Now again, for my clarification without absorption at any time?

PN111

MR CURRY: For the length of this agreement.

PN112

THE COMMISSIONER: For the duration of the agreement.

PN113

MR CURRY: Yes.

PN114

THE COMMISSIONER: Isn't that what this document says for the TWU employees.

PN115

MR CURRY: It does, but if you look at clause four it says that they agree to absorption in any future agreements.

PN116

THE COMMISSIONER: Exactly, you are seeking a payment of the four percent that it be passed on in full without absorption for the duration of this agreement. Isn't that what clause four effectively says.

PN117

MR CURRY: Well it's talking about future over award claims, about the next agreement. To me that would be something that would be discussed when we discuss that agreement.

PN118

THE COMMISSIONER: So you would see absorption or otherwise then being a negotiable issue at the time of the next agreement?

PN119

MR CURRY: That's correct.

PN120

THE COMMISSIONER: All right. Is there anything further you want to say.

PN121

MR CURRY: No.

PN122

THE COMMISSIONER: Right now, in response, Mr Wright?

PN123

MR WRIGHT: Commissioner, I did speak with Andrew on the occasion about this matter.

PN124

THE COMMISSIONER: When was that?

PN125

MR WRIGHT: I think it would probably have been about 14 November.

PN126

THE COMMISSIONER: What's your understanding of the arrangement that you entered into with Mr Curry.

PN127

MR WRIGHT: My understanding is exactly what Mr Curry has asked you to recommend and if you are in bewilderment as to what is actually meant you must understand that I am completely bewildered that there seems to be some difference in my opinion of Mr Curry's opinion of what the recommendation is and what mine is. The document I asked Mr Abrams to draw up was faxed to Mr Curry on 19th and he has had since the 19th and at no time has be called me and said that he disagreed with what the recommendation was or the understanding of memorandum was. So I am completely bewildered to find that there is a disagreement of what I agreed to.

PN128

THE COMMISSIONER: Well, you tell me what is your understanding of item four of exhibit A1 in these proceedings?

PN129

MR WRIGHT: My understanding is that - first of all can I just go through the whole lot because it is just a bit hard to piece it together. My understanding is that the members will receive the full four percent from the beginning of this agreement which takes place from the 1 August and the five percent will be passed on in twelve months time and that the agreement is for the term of the EBA that is put forward now. That's my understanding.

PN130

THE COMMISSIONER: Well, this says more than that. Particularly clause three.

PN131

MR WRIGHT: Yes.

PN132

THE COMMISSIONER: What's your understanding of clause three? For instance, the words, those employees, refer to the same persons to which clauses one and two apply or are those employees another category of person?

PN133

MR WRIGHT: No, it's the same employees.

PN134

THE COMMISSIONER: What is your understanding - I don't want to read things into clause three because it's not my document. I wouldn't have drafted it that way but be that as it may, it's your document, you've got to tell me what it means.

PN135

MR ABRAMS: Can I assist. Clause 3 merely reflects what was in one of the earlier EBA's and that was back in 1998 which I read on to transcript and I am happy to table a copy of that. So clause 3, to answer your question, reflects in identical terms the enterprise agreement back in 1998 and if you bear with me I shall pass up my only copy. Clause 3 then resolves this issue - - -

PN136

THE COMMISSIONER: It's no good just handing documents up to me unless you identify what they are.

PN137

MR ABRAMS: That document, Commissioner, is an enterprise bargaining agreement that was certified in the New South Wales Commission with the Transport Workers' Union. It is I understand in identical terms to the agreement that was then with the AMWU. The intention then but fouled by the Melbourne pay office was to resolve the question of those people being paid an amount over and above the agreed rates, the grandfather clause.

PN138

THE COMMISSIONER: Mr Abrams, I'm not here to fix up a cock up of the employers back in 1998, right? We've all moved on long from there and as I understand those rates in excess were not grandfathered and people have had the benefit of that today.

PN139

MR ABRAMS: Correct.

PN140

THE COMMISSIONER: All I want to know is what the words in clause 3 in the current agreement with the TWU really means?

PN141

MR ABRAMS: It really means that those employees - - -

PN142

THE COMMISSIONER: Which employees?

PN143

MR ABRAMS: The employees who are receiving a rate of pay in excess of the - - -

PN144

THE COMMISSIONER: Agreement rates.

PN145

MR ABRAMS: - - - agreement rates.

PN146

THE COMMISSIONER: At this point in time?

PN147

MR ABRAMS: Correct. Who prior to this agreement - that's why it says:

PN148

Those employees who prior to this agreement are already being paid an amount equal to or in excess of the new ...(reads)... term of the agreement.

PN149

THE COMMISSIONER: So their rates are grandfathered at this time and should their grandfathered rates be exceeded by any increases contained in the proposed certified agreement that they will then gain the benefit of those new certified agreement rates; is that what it means?

PN150

MR ABRAMS: What it means is those employees who are receiving a rate of pay in excess of the published rate in a current enterprise agreement will receive the benefit of this 9 per cent but will not at future stage get that benefit. So they are grandfathered for the purposes of any future enterprise agreement.

PN151

THE COMMISSIONER: And they are assured both the 4 per cent and the 5 per cent applicable in the proposed certified agreement.

PN152

MR ABRAMS: Absolutely, unequivocally, on the record, on transcript, as agreed in the New South Wales Commission with the TWU yesterday and as agreed in this Commission before you.

PN153

THE COMMISSIONER: Mr Curry, doesn't that guarantee you exactly what you want, what you are seeking?

PN154

MR CURRY: I was seeking 4 and 5 per cent without any conditions attached to it.

PN155

THE COMMISSIONER: I don't know what you mean by that. I wish you'd just clarify for me what it is that you are seeking. Do you want a closed agreement or do you want an open-ended agreement? Answer me that. A pretty simple question.

PN156

MR CURRY: What we seek is the 4 per cent, Commissioner.

PN157

THE COMMISSIONER: You're only seeking the 4 per cent?

PN158

MR CURRY: That's right.

PN159

THE COMMISSIONER: You're not seeking the 5 per cent?

PN160

MR CURRY: Well, 5 per cent obviously as well.

PN161

THE COMMISSIONER: On top of current rates?

PN162

MR CURRY: On top of current rates.

PN163

THE COMMISSIONER: Which is exactly what Mr Abrams has placed on the public record so what's your problem?

PN164

MR CURRY: My problem is this grandfather clause being applied now. It wasn't the agreement that I had with Mr Wright.

PN165

THE COMMISSIONER: Mr Curry, Mr Wright told me he sent you this document, an equivalent document, on Monday and you haven't responded to him until today on the public record you say it's not what you agreed with him but you can't explain to me what it is that you say you've agreed with him.

PN166

MR CURRY: We agreed purely and simply that if you ruled in our favour that the 4 per cent should be passed on that he would pass the 4 per cent on. If you ruled against us I would drop off, take it no further.

PN167

THE COMMISSIONER: But both Mr Wright and now Mr Abrams have clearly said that the 4 per cent and the 5 per cent in the proposed agreement will be paid on top of the current rates that your members received but the margin in excess of the rates applicable at the end of the proposed agreement will not continue if that's what clause 4 means. What do understand clause 4 to mean?

PN168

MR CURRY: To me it says that if they receive any money over and above a shop rate - that if the money they're on is over and above a shop rate then that will be absorbed - that any future increase will be absorbed into that.

PN169

THE COMMISSIONER: Yes, beyond the term of the proposed certified agreement.

PN170

MR CURRY: That wasn't in the spirit that we discussed the other day.

PN171

THE COMMISSIONER: So you are seeking a completely open-ended agreement with no absorption for your members in any circumstances during the life of the proposed agreement or beyond the proposed agreement.

PN172

MR CURRY: No.

PN173

THE COMMISSIONER: You're not. You have totally confused me.

PN174

MR ABRAMS: You're not alone.

PN175

MR CURRY: In the next agreement if there's to be absorption I'd like to be able to sit down and discuss it with them.

PN176

THE COMMISSIONER: That's not what the employer is proposing in this agreement. This agreement is a closed agreement. It doesn't say anything beyond its date of application, period of operation. Whatever happens at that time presumably will once again be an act between consenting adults. I guess if you want to put something about non-absorption on the table at the time you have every right to do so. Whether you are successful at that time is something else again but beyond that I have no idea what it is that you're seeking apart from, and correct me if I'm wrong, some sort of lifelong guarantee that no matter what happens in the future these people will retain their current margin which on two occasions already they've agreed to have their rates absorbed and yet you don't wish to have them commit themselves to that.

PN177

MR CURRY: When did they agree to it, Commissioner?

PN178

THE COMMISSIONER: In 1998 I am told.

PN179

MR CURRY: That was only applied to the TWU.

PN180

THE COMMISSIONER: You've lost me completely.

PN181

MR ABRAMS: And you've lost us.

PN182

THE COMMISSIONER: Are you saying that in 1998 there was no grandfathering arrangement with AMW employees?

PN183

MR CURRY: I'm not too sure whether it applied to everybody.

PN184

MR ABRAMS: He was there at the time.

PN185

MR WRIGHT: Commissioner, there was a site agreement between the two unions and it was another - - -

PN186

THE COMMISSIONER: Well, have you shown Mr Curry that?

PN187

MR ABRAMS: He's well aware of it.

PN188

MR WRIGHT: I wouldn't have thought that I would have needed to show it to him, I would have thought he would have been aware of it.

PN189

THE COMMISSIONER: Mr Curry, am I wrong in my understanding of what it is that you're seeking and that is an open-ended agreement that at no point in time in the future should your members have the absorption of their rates dealt with or touched?

PN190

MR CURRY: No, I don't seek that.

PN191

THE COMMISSIONER: Right. What you want is issue of absorption to be on the negotiating table at the expiry of the current proposed agreement.

PN192

MR CURRY: That's correct.

PN193

THE COMMISSIONER: Mr Abrams, what is your response to that?

PN194

MR ABRAMS: We stand by our earlier statement that the whole purpose of us being here is to restore and to reinstate the spirit and the intent that has been agreed by the Transport Workers Union, Commissioner, and another jurisdiction in identical terms to A1. We seek no less than A1 be directed for Mr Curry's members. We are heartened by Mr Curry's submission that he's happy to accept your recommendation.

PN195

THE COMMISSIONER: Do you acknowledge that the issue of absorption at the time of bargaining of the next agreement could be on the negotiating table at that time, given the terms of exhibit A1.

PN196

MR ABRAMS: We say, quite clearly and unequivocally, that the grandfather clause ends at the expiration of the agreement before you. It is to be closed off and it is not open ended. We can't prevent the union, or any union, or for the TWU, for that matter, raising it, which they're free to do, they can raise any matter. They'll probably raise Manusafe for the next EBA, they can raise any matter. Whether they're successful or not is another issue.

PN197

THE COMMISSIONER: Mr Curry, anything further?

PN198

MR CURRY: I still have trouble with number 4 here, except that the absorption issues are only going to last until the end of this agreement and yet it states here that, "The above employees to whom this applies acknowledge and agree to absorb any increases arising from any future certified agreement".

PN199

MR ABRAMS: We don't resile from that.

PN200

MR CURRY: Nor will they make future over award claim.

PN201

MR ABRAMS: Absolutely, too right.

PN202

MR CURRY: That doesn't make sense, you can't have it both ways.

PN203

THE COMMISSIONER: Mr Curry, either you're addressing me or you can bargain with the employer and I'll vacate the bench.

PN204

MR CURRY: Pardon me.

PN205

THE COMMISSIONER: Do you want to continue to bargain with the employer or do you want a recommendation from me.

PN206

MR CURRY: I seek a recommendation.

PN207

THE COMMISSIONER: All right.

PN208

Having heard the parties, I acknowledge that there is a difference of opinion as to the intent and meaning of an absorption arrangement that has existed since 1998 and the application of a similar absorption arrangement in the year 2001.

PN209

It is evident, on the material before me, particularly exhibit A1, that the employers and the TWU have reached an arrangement for the purposes of assuring employees the continuation of their current rates including over award payments. For want of a better description, exhibit A1 is an absorption/grandfathering of rates arrangement for TWU employees who are eligible within the terms of that agreement.

PN210

I acknowledge the submissions of the employer that it is in the interests of all employees that a single site agreement applies in a consistent manner to all employees. i am aware, as a consequence of the filing of application AG2001/6818, that there is intended to be a single site certified agreement. Having regard to my earlier comments and to that application for the certification of an agreement, it is my recommendation that the CPI Group Ltd, Wetherill Park, and the AMWU enter into an absorption/grandfathering of rates arrangement in identical terms to that included in exhibit A1, amended as necessary to reflect the parties to this arrangement.

PN211

It is my further recommendation that that arrangement be entered into at the first available opportunity after the conclusion of these proceedings and tha that arrangement be put to the eligible AMWU employees with the Commission's strong recommendation that they accept that arrangement.

PN212

That arrangement, a I understand it, has a period of operation equivalent to the period of operation of the proposed CPI Group Ltd Wetherill Park Agreement 2001 which is the subject of a separate application before the Commission in matter 6818.

PN213

Insofar as that application is concerned, I will not proceed to certify that agreement until such time as the relevant paperwork has been filed, in particular a statutory declaration by the AMWU. Once that is received, along with evidence that the absorption arrangement has been concluded, I will proceed to list that matter for certification at a time and date to be fixed.

PN214

So that the parties have a clear understanding of this decision I will ask that Auscript prepare the transcript of the proceedings since I commenced placing this decision on transcript. I would ask Auscript if that could be made available at the earliest opportunity.

PN215

Insofar as matter C2001/5708 is concerned, I will merely adjourn that matter and leave it open to the parties to advise me that the matter has been resolved or that the applicant wishes to withdraw that file. Conversely it may come to a natural conclusion at the point of the certification of the agreement.

PN216

With that decision on transcript, that concludes these proceedings and the Commission will adjourn.

ADJOURNED INDEFINITELY [12.40pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 COPY OF MEMORANDUM OF UNDERSTANDING PN45