AG2001/6551, Transcript of Proceedings [2001] AIRCTrans 3440 (10 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2001/6551

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Ivesons Electrical and Another in
relation to the Ivesons Electrical Pty Ltd
Enterprise Agreement South Australia 2001

ADELAIDE

10.42 AM, FRIDAY, 23 NOVEMBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have appearance please.

PN2

MR L. MOORE: I represent the company in this matter. Sir, I have tabled a letter from the employer representative who does not wish to appear today but giving consent to the agreement being certified. I have given it to your Associate.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moore, I will mark that as A1 for the record.

EXHIBIT #A1 LETTER FROM THE EMPLOYER REPRESENTATIVE GIVING CONSENT TO THE AGREEMENT BEING CERTIFIED

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Moore.

PN5

MR MOORE: Senior Deputy President, I will say, sir, that the agreement before you certainly meets the requirements of the Act and we have certainly testified to that in our stat decs and the stat dec presented by the employee. I would just like to say that the agreement was negotiated over quite a number of meetings. It is an ongoing agreement that has been in place for a number of years, because I think this is the third stage of it.

PN6

In relation to the agreement itself there are certain requirements of the Act that it certainly complies with, that is, the consultative process, the Commission's role in the agreement and it certainly does not disadvantage the employees in any way. Sir, we would be seeking to have the agreement certified as and from today's date, if the Commission pleases.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Moore, before you take your seat, I will save you the effort of taking your seat because I have to advise I have a number of questions in relation to the agreement. It might be best, Mr Moore, if I deal first of all with the actual agreement and then I will come back through my questions to deal with the process whereby the agreement was arrived at.

PN8

MR MOORE: Yes, right.

PN9

THE SENIOR DEPUTY PRESIDENT: I ought to preface my comments by indicating to you, they are not designed to necessarily trip up or impede the process whereby the agreement would be certified.

PN10

MR MOORE: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: But are rather predicated on the requirements of the Act.

PN12

MR MOORE: Right.

PN13

THE SENIOR DEPUTY PRESIDENT: Can I refer you firstly to clause 10 of the agreement - and can I ask for confirmation there that in the event that an employee wished to be represented by a union that that representation is provided for in terms of that clause 10.

PN14

MR MOORE: There is no specific reference to it, sir, but I might say that one thing I did omit to say earlier on was that each employee prior to this agreement being negotiated was given a letter - which I haven't got a copy of - and they were also verbally asked - that if they wished to have union representation at the - I suppose in the consulting stage of the agreement they certainly do so and they declined that. None of the employees are members of the union.

PN15

THE SENIOR DEPUTY PRESIDENT: Nor am I suggesting that they necessarily might wish to be members of the union. It's simply a question based on clause 10 and seeking confirmation that the operation of this clause 10 is such that: were an employee to ask for representation on the part of his or her union, is that provided for in terms of the company's understanding of clause 10?

PN16

MR MOORE: Without - I wasn't party to the negotiations of the agreement, sir, but I would say this given my history - I was the person who wrote this originally on behalf of the union - that this company - if an employee wants to be a member of the union, or wishes to have a union represent them, there would be absolutely no problem in doing so. I'm not sure whether it actually says that exactly but I can assure you, sir, that that would be the case and I would say that on behalf of the employer.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to the wages provision in the agreement, Mr Moore, and I'm referring to page 16, appendix B. Now, can I clarify first of all that notwithstanding that first column, which is headed "EBA June 2000/2001", the rates that are proposed to apply on ratification of the agreement are those contained in the second column, which is headed, "On Ratification".

PN18

MR MOORE: Yes, that is correct, sir.

PN19

THE SENIOR DEPUTY PRESIDENT: Now, given that you have referenced two awards as the foundation for the application of the no disadvantage test, can I just clarify with you then that - as to how the rates for the electrical employees are proposed to be contrasted by way of the classification structure with the classification structure contained in the National Electrical, Electronic and Communications Contracting Industry Award of 1998?

PN20

MR MOORE: Well, first of all, sir, they have only got two classifications within each - should I say: two definitions within each classification - and that is "workshop" and "installation", where in fact they have - in the award it contains three different levels within each classification, or each grade. They have only used two because that is the nature of their business and, that is, that the workshop where employees only work in the workshop and there is an installation rate where employees go out - I suppose on the job - and install equipment. It is not a maintenance company, it is an installation company, or it is a workshop company that repairs equipment.

PN21

So in each row there are two distinct different wage levels for each grade which relates to the award itself. The only difference between this and the award would be that there are workshop service and maintenance and installation groups within each grade within the award and they have eliminated that. So there is a distinct difference in the award between those, I suppose, classifications within each grade. They have omitted the service and maintenance because that is not the nature of their business.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Moore, is Grade 5A, or 5B the trades level?

PN23

MR MOORE: Grade 5A is the trade level. Grade 5B is an unlicensed, or a restricted licence holder within the award. Whilst the award does not have a Grade 5B and a 5A, this company has chosen to have a structure recognising that they do have restricted licence holders and even, sir, people at trade level without a licence who actually repair white goods and there is no such, I suppose, provision in the award for those people. It is just a provision to do with licensing. 5A is the actual trade rate. An A Class Licence Electrician.

PN24

THE SENIOR DEPUTY PRESIDENT: In terms of a comparison of the rates contained in the award of the rates contained in this appendix B, can you clarify for me then what you believe to be the comparable award rate for a tradesperson? That is the 5A working in a workshop under the award?

PN25

MR MOORE: I haven't got that with me, sir, but I know it would be less than 587, because the installation rate is currently about 590. As of just recently a recent increase, so it is about a $25 or $27 increase.

PN26

THE SENIOR DEPUTY PRESIDENT: Well, you see, the reason that I'm asking this question, or this series of questions, Mr Moore, is the potential for some confusion over what is incorporated in the rates contained in this particular agreement.

PN27

MR MOORE: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: And the need to ensure that, first of all, I'm clearly appraised of the extent to which the award rates are directly comparable with those contained in the agreement, and that the agreement as a package is at least equal to, or beneficial than the award is a package. In asking that question I have had regard to the fact that there are some allowances which are incorporated in the award which are often built into the total wage rate.

PN29

MR MOORE: That is correct.

PN30

THE SENIOR DEPUTY PRESIDENT: Now, the allowances in this instance have been at times phrased differently and at times also they specify different amounts. As an example, the availability for duty allowance specified in clause 29 of the proposed agreement stipulates a $25 per week payment, which is marginally less than that prescribed in the award. The licence allowance specified in clause 31 provides for a reimbursement arrangement, as distinct from a weekly allowance. I'm just endeavouring to - - -

PN31

MR MOORE: If I may - yes - - -

PN32

THE SENIOR DEPUTY PRESIDENT: - - - be satisfied in my mind that I can in fact draw a direct comparison between the rates of pay provided for under the award with those provided for by this agreement. I am clear that the clerical and administrative rates, provided they look at the second column that becomes applicable on ratification, are clearly at or above those rates prescribed in the Clerks South Australia Award, but I must admit to some degree of difficulty on the information that I currently have before me in terms of the rates in the - applicable to electrical personnel.

PN33

MR MOORE: Yes. Without having the rates before me I would say: most definitely they are greater than - they are greater than the award - just looking at - I'm only taking one example, which is the Grade 5A installation rate. That would be some $25 at least above the award.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, Mr Moore, would it be possible for you to provide me with a breakdown of what is included in those agreement rates?

PN35

MR MOORE: Yes, I can, I can do that now.

PN36

THE SENIOR DEPUTY PRESIDENT: And a comparison of them in that context with the provisions of the award?

PN37

MR MOORE: Yes, I can, in fact, I can tell you that right now off the top of my head.

PN38

THE SENIOR DEPUTY PRESIDENT: Well, you need not do it now. I would simply indicate that I would ask for it.

PN39

MR MOORE: Yes, that is not a problem. Sir, just going back to the clause 29, in relation to call-back. I believe that rate is actually - I don't think they have even looked at that rate and they haven't been aware that the actual rate has increased in the award. They actually had that $25 - it used to be $23 at their last agreement and they put it up to 25. In fact, I don't think they have even looked at that and I think if that is less than the award, I think that would be addressed by the company . I don't think that is appropriate, personally.

PN40

THE SENIOR DEPUTY PRESIDENT: Well, I invite you to consider that - - -

PN41

MR MOORE: Yes - - -

PN42

THE SENIOR DEPUTY PRESIDENT: - - - as part of what might well be a suite of questions that I have in that regard.

PN43

MR MOORE: Yes, yes, right.

PN44

THE SENIOR DEPUTY PRESIDENT: Now, Mr Moore, can I take you from the agreement provisions to the statutory declarations that have been filed in this matter. Can I indicate in relation to part 4 of that statutory declaration, that whilst I acknowledge the letter provided to me on Ivesons Electrical letterhead from Mr Polacchi that I have called A1, I will require by virtue of the fact that this is a section 170LK agreement, a clearer indication of the employee position on the matter.

PN45

MR MOORE: Right.

PN46

THE SENIOR DEPUTY PRESIDENT: The agreement as I understand it applies to a very limited number of employees.

PN47

MR MOORE: That is correct.

PN48

THE SENIOR DEPUTY PRESIDENT: Of some 11 employees?

PN49

MR MOORE: Including the clerical, yes.

PN50

THE SENIOR DEPUTY PRESIDENT: Would it be possible to have a document signed by those employees to the effect that they have endorsed the agreement?

PN51

MR MOORE: That wouldn't be a problem. Sir, I would just simply ask for this document from the representative on the understanding that that was sufficient. I know for a fact all employees would sign a document, that is not a problem. I can get that.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Moore, I have noted that the agreement was provided to employees in accordance with the Act and the employees had the opportunity to advise whether or not they wished to have representation on the part of a union. And you can confirm that for me?

PN53

MR MOORE: I can.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. Secondly, can you confirm to me that the agreement was made on 28 September?

PN55

MR MOORE: That is certainly the understanding I have got from the managing director of the company.

PN56

THE SENIOR DEPUTY PRESIDENT: Now, the Act provides that the application for certification should be made not later than 21 days after the date upon which the agreement is actually made.

PN57

MR MOORE: Yes, it does.

PN58

THE SENIOR DEPUTY PRESIDENT: And we fall foul of that particular provision.

PN59

MR MOORE: Yes.

PN60

THE SENIOR DEPUTY PRESIDENT: Can you give me a little more information as to the basis for that delay?

PN61

MR MOORE: As I understand it, sir, it is a process issue within the company of then having a mass meeting if you like, agreeing to the document, then the process from there getting things signed, getting stat decs signed, getting the employee to sign the non-attendance letter. It is simply just a process. We endeavour to ensure they do it within a week but it is sometimes very difficult to get a small company like this to give an undertaking to carry out things within the appropriate time. I have told them on a number of occasions it has got to be done within 21 days but unfortunately I can only apply when I receive the documentation. I don't believe it is anything untoward other than not complying with the requested time.

PN62

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Mort. I can indicate to you now I'm prepared to extend that date on this occasion but I would ask that given that this is hopefully from the company's perspective one of an ongoing number of agreements that you bring that provision to the company's attention.

PN63

MR MOORE: I certainly will.

PN64

THE SENIOR DEPUTY PRESIDENT: Because there can be no guarantee that future applications will be so extended.

PN65

MR MOORE: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: It would be a pity for a company to go through all of this effort only to find that they failed at one of the penultimate hurdles.

PN67

MR MOORE: That is right.

PN68

THE SENIOR DEPUTY PRESIDENT: The next question I have, Mr Moore, is one that you may also need to gain some further information with respect to. I note that of the 11 employees three were women, one was a person from a non-English-speaking background and one was a casual employee. Are you in a position to tell me how the company went about explaining the provisions of the agreement and making the agreement available to those persons in a fashion which was capable of ready understanding?

PN69

MR MOORE: Yes. First of all, sir, in relation to the women, personally knowing the women in that organisation they would have been taking a major role I would suggest in negotiations of the agreement. They are quite assertive women and one of them in particular is fairly high-positioned in the company. They certainly wouldn't need any what you'd call I suppose special attention in terms of making them understand. They would clearly understand.

PN70

THE SENIOR DEPUTY PRESIDENT: I understand that and I would simply observe that that provision is mentioned simply because it is referenced in the Act. There are many people who would probably debate the need or the extent to which such a reference is appropriate. To be clear in this regard I'm probably more focused in this situation on the person from a non-English-speaking background and the casual employee.

PN71

MR MOORE: Yes. Well, the casual employee did participate in all the negotiations I understand. There wasn't a problem with that. The person from a non-English-speaking background would have as good a comprehension of English as I would. He certainly has not got any disability in terms of understanding English, nor speaking English. I think the fact that he is from another speaking background really denies the fact that he actually can understand and speak English very, very well and certainly he would have no difficulty whatsoever. In fact he is the employee representative in the matter.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. The response on Mr Polacchi's statutory declaration to 5.9 is a matter upon which I would also seek some clarification. This response reads: no request was made to the organisation. Can I presume from that that Mr Polacchi is acknowledging that no organisation made a request to Ivesons to represent employees? Because that response in its current form is capable of a number of interpretations. If you don't know the answer to that question I'm very happy for you to confirm it to me as part of the information you are providing to me.

PN73

MR MOORE: I will double-check but as I understand it and the letter that was given to the employees makes it very clear that the organisation we are talking is the employee representation organisation or employee representative. In fact the organisation is actually the union itself or unions in this case but I can certainly confirm that. They did receive a letter from the company, each employee, saying that if you wish to have an employee organisation represent you in either negotiations or appearances at the Commission they are certainly willing to do so. I believe that answer is the fact that no request was made to any organisation to represent them in meaning the union or a union.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Moore, I've raised a number of questions with you. To summarise those I require some indication from each of the employees who are to be covered by the agreement that they agree to its terms and provisions and have done so in a fashion which was envisaged by section 170LK of the Act. I require from you a comparison of how the wage rates in relation to the electrical classifications have been arrived at in comparison with the award arrangements.

PN75

I invite you, but it is by no means mandatory, to discuss with the company any of the allowances contained in the proposed agreement and I would also ask that you do confirm to me the situation in relation to employee organisations or unions and whether or not any of those organisations sought involvement in this process. Now, I can indicate to you that in the event that your answers to that information were such that I was then happy that the agreement could be certified I will certify it from the date upon which I receive those answers and a certificate will then be forwarded out to the company in accordance with the Act.

PN76

In the event that I had a continuing difficulty with the agreement I'm not inclined toward refusing certification unless I give the parties to the agreement the opportunity to address me again on it so I would reconvene a hearing on the matter and raise any concerns that I had with you.

PN77

MR MOORE: Yes.

PN78

THE SENIOR DEPUTY PRESIDENT: Does that approach appear to you to be satisfactory?

PN79

MR MOORE: No, that is fine.

PN80

THE SENIOR DEPUTY PRESIDENT: All right. Well, look as soon as you can provide me with that information we will see what we can do to expedite the process of certification.

PN81

MR MOORE: Yes, I will have to you early in the week.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you. I adjourn the matter on that basis, thank you.

ADJOURNED INDEFINITELY [11.09am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER FROM THE EMPLOYER REPRESENTATIVE GIVING CONSENT TO THE AGREEMENT BEING CERTIFIED PN4