AG2001/6569, Transcript of Proceedings [2001] AIRCTrans 3539 (17 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2001/6569

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Automotive, Food, Metals, Engineering, Printing
and Kindred Industries Union - Printing Division
South Australian Region and Another for certification
of the Carter Holt Harvey Carton SA Enterprise
Agreement 2001/2002

ADELAIDE

9.37 AM, FRIDAY, 30 NOVEMBER 2001

Continued from 22.11.01

PN1

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

PN2

MR T. NICHOLSON: Yes, I appear for the AMWU and I have a member from the plant with me, MR KEVIN MURRAY.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nicholson.

PN4

MR L. McISAAC: I represent Carter Holt Harvey. I'm the State Manager.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McIsaac. Now, Mr Nicholson, are you going to open the proceedings this morning?

PN6

MR NICHOLSON: Yes, I will do. We are here to present an application to certify an LJ enterprise agreement under division 3 part (6)(b) of the Australian Workplace Relations Act between Carter Holt Harvey Carton's division of the AMWU and its members. The period of the agreement is 2 years which actually started from 1 June 2001. There was negotiations for the agreement over several months before it was completed and on completion of the negotiations and during the negotiations there was circulars and meetings with the members and the employees on the shop floor to give them an idea of what was in the agreement and get some understanding of it.

PN7

At the end of the negotiations the employees were all given a copy of the documents to peruse for 14 days before there was a vote cast and the vote went, it covers 23 employees and the vote was 22-1 so it was accepted almost unanimously. If there are any questions regarding the agreement we would be only too happy to answer those questions.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nicholson. When was the actual vote?

PN9

MR NICHOLSON: Sorry?

PN10

THE SENIOR DEPUTY PRESIDENT: When was the actual vote taken, Mr Nicholson, or Mr McIsaac?

PN11

MR McISAAC: We actually took two votes due to we fell outside the period. The last one was in September of this year.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. Is someone able to give me a specific date? You see perhaps I should explain the reason I'm asking that question is that section 170LM(2)(a) requires that the application be lodged not more or not later than 21 days after the vote and I have a degree of interest in terms of that date.

PN13

MR NICHOLSON: We had some problems with the timing of the agreement. The vote was taken and I got involved just about that time and a Mr Clive Smith is the one who normally handles the applications but unfortunately he has retired and it was left to Mr McIsaac to make the applications and to-ing and fro-ing of documents and the stat decs delayed the process for quite a while. However we beg the court's indulgence to accept that the vote was taken but the delay of more than 21 days was unavoidable and we thought we would come to the court and ask would you accept that vote without going back to the employees.

PN14

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Nicholson. I do have some other questions that I may call upon you to answer but I think it would be appropriate first of all that I have Mr McIsaac confirm the company's position on this matter.

PN15

MR NICHOLSON: Thank you.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr McIsaac, you have heard Mr Nicholson's summary of the situation. Is there anything that you want to add or state in relation to the company's position on the order question of certification of the agreement.

PN17

MR McISAAC: We've got some additions that we would like to put in in as much as that we found some typographical errors in the actual agreement on the agenda page and also on page 2.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, I've also found some errors.

PN19

MR McISAAC: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: More appropriately one of my associates have found errors. So before we get to those can I take it that first of all you are in agreement with the information that Mr Nicholson has provided to me in terms of the process that was followed to arrive at the agreement?

PN21

MR McISAAC: That is correct, yes I am.

PN22

THE SENIOR DEPUTY PRESIDENT: Can I take it that you are also in agreement that notwithstanding that the second vote on the agreement may have occurred more than 21 days before an application for certification was made, the company - - -

PN23

MR McISAAC: I would like to clarify that point.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN25

MR McISAAC: And I would have to actually see the detail back at the office. I can't answer that straight away, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: Very well. Well, then perhaps I will rephrase that. To the extent that it is possible that the vote on the agreement occurred more than 21 days before the application for certification was made can I take it that the company is supportive of the union's request that the Commission extend that date?

PN27

MR McISAAC: Yes, I am.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well. Now, Mr McIsaac, do you want to take me through the issues that represent typographical errors in the agreement?

PN29

MR McISAAC: Sure. What we've found is that the agreement is a 2 year agreement so we've actually added that on the opening page of it to say that it is a 2 year agreement. In the total of contents the page numbers do not line up with the actual page numbers on the actual document.

PN30

THE SENIOR DEPUTY PRESIDENT: Well, Mr McIsaac, perhaps I can deal with these one by one.

PN31

MR McISAAC: Sure.

PN32

THE SENIOR DEPUTY PRESIDENT: So can I presume then that you want to change the date of the agreement as it appears on the title so that it would be 2001 to 2003?

PN33

MR McISAAC: We've put a 2001/2002, a 2 year agreement.

PN34

THE SENIOR DEPUTY PRESIDENT: Very well. So I leave 2002 there but I insert the words "a 2 year agreement."

PN35

MR McISAAC: Two year agreement. I have brought copies for the court.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, perhaps it might be appropriate at this stage that I ask that you hand those up to me. For the sake of the record I will call this A2 and I will note that it represents some proposed typographical adjustments to the document.

EXHIBIT #A2 TYPOGRAPHICAL ADJUSTMENTS

PN37

THE SENIOR DEPUTY PRESIDENT: Now, Mr McIsaac, you wanted to take me to the table of contents.

PN38

MR McISAAC: That is correct. The page numbers did not line up originally with the - sorry, do not line up with the original document which had now been adjusted so that the table of contents looking through the document do line up accordingly.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes.

PN40

MR McISAAC: For example if you look at number 23, the wages, the original number was 15, page 15, but it is actually page 17. The other typographical error is on page 2 of the document under the term of agreement, number 8, which says that what is the duration of this agreement:

PN41

This agreement will come into force on 1 June 2001 and shall continue in force up to and including -

PN42

and that is a date change to 30 May 2003 instead of 2002.

PN43

THE SENIOR DEPUTY PRESIDENT: Mr McIsaac, that is actually a fairly substantial typographical error.

PN44

MR McISAAC: Yes, that is correct.

PN45

THE SENIOR DEPUTY PRESIDENT: Can I first of all have your confirmation that the explanations, particularly the verbal explanations given to employees of this proposed agreement, made it absolutely clear that the agreement would continue in force up to and including 30 May 2003? See what I'm concerned about is that I need to be satisfied that the employees who voted for or in favour of this agreement voted on a creature which was fundamentally the same as that which you are now proposing to me. So I don't want to be in a situation where employees may have voted on an agreement that they considered would operate up to and including 30 May 2002 only to find that the document that is finally certified by the Commission lasts for a full year longer.

PN46

MR McISAAC: The agreements which were stated to the employees verbally and in a presentation was for a 2 year agreement finishing on 31 May 2003.

PN47

THE SENIOR DEPUTY PRESIDENT: Mr Nicholson, or indeed, Mr Murray, in this respect, I'm wondering whether you can confirm the union and employee position on this specific issue.

PN48

MR NICHOLSON: Well, during the negotiations it was always noted as a 2 year agreement. I think the wage increases do explain that to a degree where it says that there will be a pay increase from $20 from 3 June 2001 provided in the ordinary week's wages and at 31 May 2002 shall increase by $20 from June 2002. That was the indication of a pay increase for the first year and a pay increase for the second year. I do understand the Commission's problem with this. I think it should read 2003 on the front page but I think, and Mr Murray will support the fact that all the employees understood it was a 2 year agreement.

PN49

THE SENIOR DEPUTY PRESIDENT: Mr Murray, can you confirm that to me?

PN50

MR MURRAY: Yes, I can.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr McIsaac?

PN52

MR McISAAC: That is the extent that we have found of the typographical.

PN53

THE SENIOR DEPUTY PRESIDENT: Now, Mr McIsaac, the agreement contains a number of dispute resolution mechanisms.

PN54

MR McISAAC: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: And as a comment I would simply observe that for the future it might be appropriate to look at consolidating those. It would be a terrible thing to have a dispute over which dispute resolution mechanism was to apply but leaving that aside those various dispute resolution mechanisms commonly make reference to matters in dispute being referred to the secretary of the printing division of the union or indeed to the regional secretary of the union.

PN56

MR McISAAC: Yes, sir.

PN57

THE SENIOR DEPUTY PRESIDENT: Can you confirm to me what process is applied in the event that an employee who is not a member of the union is involved in a dispute? Does that employee have access to another adviser of their choosing or what happens?

PN58

MR McISAAC: If the non-union employee wanted an adviser they quite rightly can choose. If it is a union representative that is fine. Secondly all non-union members are still covered by the award and the company will abide by those laws of the state as well as the award.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I refer you to clause 25 of the award - sorry, of the agreement?

PN60

MR McISAAC: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: And simply ask, Mr McIsaac, whether you can explain to me what the opening sentence in that clause means? It reads to me: that the provisions of the award shall other than allowances apply according to the tenor. Now, I'm just wondering whether that means one sings in accordance with the award or whether there is another construction that I should put on that particular provision and I'm simply asking the question now not to trip up any of the parties.

PN62

MR McISAAC: Sure.

PN63

THE SENIOR DEPUTY PRESIDENT: Because I would rather ask questions now about things that are not clear so that they can be answered in this environment of harmony, if you will excuse my pun.

PN64

MR McISAAC: Yes. It was definitely not for their singing ability. That should be tenure as far as I'm aware.

PN65

THE SENIOR DEPUTY PRESIDENT: Tenure, right. Mr McIsaac, can I now refer you to clause 35.3 of the agreement? This clause has a reference to a sick leave accrual rate in the second and subsequent years of employment of 64 hours per annum with the number 64 written in by hand and can I just once again confirm that the parties understand that the rate of accrual of sick leave in the second and subsequent years of employment is 64 hours per annum?

PN66

MR McISAAC: Yes, they are.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nicholson?

PN68

MR NICHOLSON: Yes, that is correct.

PN69

THE SENIOR DEPUTY PRESIDENT: That concludes my questions on the agreement. I have one question of clarification in terms of the employees covered by the agreement and I'm happy for my question to be answered by any of the people at the table. As I understand it one of the employees covered by the agreement is a person of Aboriginal or Torres Strait Island descendancy. Can I just clarify that that person had the agreement explained to them in terms that made it and its obligations quite clear? Did that person require any specific explanation of the agreement?

PN70

MR McISAAC: That person did not. Up until this agreement he was actually one of the delegates.

PN71

THE SENIOR DEPUTY PRESIDENT: On the basis of the information contained in the statutory declarations in this matter and significantly the material provided by the parties to me this morning I am satisfied that the agreement passes the no-disadvantage test prescribed in the Workplace Relations Act and I'm satisfied that the agreement does not contain provisions which are contrary to the Act and that it is of a duration now clarified which is envisaged by the Act. It contains numerous dispute resolution provisions but I'm satisfied that in summary these meet the requirements of the legislation.

PN72

I propose to certify the agreement as of today's date with three amendments to it. Firstly the title of the agreement will be known as the Carter Holt Harvey Carton SA Enterprise Agreement 2001/2002 2 Year Agreement. Secondly the table of contents page will be adjusted so as to reflect appropriate references. Thirdly the provisions of clause 8 of the agreement will read:

PN73

Term of Agreement: What is the duration of this agreement? This agreement will come into force on 1 June 2001 and shall continue in force up to and including 30 May 2003.

PN74

The certificate that will be prepared and forwarded to the parties over the next few days will attach these amendments to the agreement. It remains for me to congratulate the parties on reaching this agreement. The certification process is the easy part. I sincerely hope you will not need to avail yourselves of those various different dispute resolution provisions in your document and that it operates over this next 2 year period to benefit both the employer and the employees covered by it. I adjourn the matter on that basis. Thank you.

ADJOURNED INDEFINITELY [9.58am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A2 TYPOGRAPHICAL ADJUSTMENTS PN37