AG2001/1487, Transcript of Proceedings [2001] AIRCTrans 634 (18 April 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 6654

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

AG2001/1487

APPLICATION FOR CERTIFICATION OF AGREEMENT

APPLICATION UNDER SECTION 170MA OF THE ACT
BY THE MOBIL ALTONA REFINERY OPERATIONS
IMPROVEMENT PLAN AGREEMENT 2001

MELBOURNE

2.14 PM, MONDAY, 2 APRIL 2001

PN1

THE COMMISSIONER: If I could have appearances, please.

PN2

MR S. KINGSHOTT: If the Commission pleases, I am appearing on behalf of Mobil Refining Australia.

PN3

THE COMMISSIONER: Thank you.

PN4

MS M. MULCAHY: If the Commission pleases, on behalf of the National Union of Workers.

PN5

THE COMMISSIONER: Thank you, Ms Mulcahy. Yes, Mr Kingshott?

PN6

MR KINGSHOTT: If it pleases the Commission, Mobil seek that the Commission certifies the agreement which has been filed with the Commission. The agreement is supported by two statutory declarations, one from the company and one from the National Union of Workers. The agreement relates to a constitutional corporation, namely, Mobil Refining Australia Limited, ANC number 004300163. The NUW has at least one member employed in part of a single business and which relates to this agreement and is entitled to represent interests of those members.

PN7

For the purposes of these proceedings Mobil submits that the agreement satisfies the requirements under section 170XA of the Workplace Relations Act 1996 and the agreement as filed with the Commission does not disadvantage any employees in relation to their terms and conditions of employment and statutory declarations from Mobil and the NUW support the submission. The operations improvement agreement comprises two distinct components; firstly, the framework agreement and the wages proposal. It is a 12 month agreement which allows for an overall increase of 4.3 per cent to the base pay plus the removing of the prospective pensionable allowances known as other allowances into the base pay which also provides an additional once off benefit to superannuation.

PN8

The agreement includes procedures for preventing and settling disputes between the employer and employees and that is set out on clause 22, page 11, and the agreement specifies a date as a nominal expiry date which is not more than one year of the date of the agreement which is on clause 3, page 1. Hence, we submit that we believe there are no reasons as set out under section 170LU of the Act that the Commission should not certify the agreement.

PN9

THE COMMISSIONER: Thank you. Ms Mulcahy?

PN10

MS MULCAHY: Yes. I echo the submissions of my friend. Commissioner, you should have before you the affidavit of Charles Donnelly, the branch secretary of the Victorian branch which sets out the manner in which the application complies with the requirements of the Act. I have nothing further to add and we would ask that the agreement be certified as of today's date, unless I can assist you further.

PN11

THE COMMISSIONER: There is a question I wanted to put to you, Mr Kingshott. I notice that the agreement is marked:

PN12

Confidential restricted use because it contains information confidential to Mobil Oil Australia which must neither be made nor disclosed or discussed with anyone outside the corporation, its divisions, or its wholly owned affiliates.

PN13

That is on the first page. Now, the situation is - how will I put it - looking at the agreement itself it seems to me that the private parts, if one might - confidential parts is a better expression - but parts of the document really relate to appendix C and I am not sure whether while there is appendix C there is also - which is labelled - it starts at page 1 of the attachments - well, it is numbered page 1 - and then to it are other appendices, charts, salary scales, etcetera. Now, the dilemma that I am faced with is that when you - it is possible to seek a direction that the agreement be made confidential, however, I should also advise you that under section 143(3)(b) of the Act the Commission is required to provide a copy of the agreement to the registrar and under 143(4) the registrar must ensure that the following are published as soon as practicable, and that includes, if I recollect correctly - I will just check this - yes, under 143(3)(b):

PN14

The registrar must ensure that copies of each of the following are available for inspection at each registry.

PN15

And then it says:

PN16

In the case of a decision to certify an agreement under part VIB, a copy of the agreement.

PN17

So arguably the registrar has to make those details available publicly. It is possible for you to make an application that I issue a direction under 111(1)(s), I think it is - no, (1)(t) - well, arguably (t) or (k) that the documents be kept private or confidential. I raise that with you simply because it is a matter that the company may want to consider. I do not know whether you have got any instructions in relation to that.

PN18

MR KINGSHOTT: No, Commissioner, I have not got any instructions in relation to that. The clause or the confidential restricted use piece which appears on the front of the agreement has appeared on all agreements that have come from the company. However, I am aware when I have gone into the Osiris website that these agreements do appear on those websites even with that - well, they have appeared with that clause on there. However, I do take your point in relation to appendix C and appendices 1 through to 5. That information is I suppose commercially sensitive information that we would not want to be sharing with our competitors.

PN19

THE COMMISSIONER: Well, that is what I assumed that was the essential bit, that what is in the agreement itself - - -

PN20

MR KINGSHOTT: Yes. That is effectively - we have no great issue with that.

PN21

THE COMMISSIONER: No. I mean, anyone who read it would be none the wiser, if I might put it that way, in terms of commercial aspects from the company's point of view. What I suppose I am getting to is I am certainly prepared to certify it from today. There is no difficulty with that. It is a question of, you know, I can give you seven days - well, I will arrange for the transcript to be made available. If you want to put some further submission in writing about how that should be dealt with, provide a copy to the union and the union express its view as well about that. I will then see how it can be dealt with. I mean, one option available, in fact, is to detach those appendices from the agreement on this file and put them in a sealed envelope. Obviously, of course, if ever there is a question of enforcement, well, both parties have got copies and it is going to be made available to the workers anyway.

PN22

MR KINGSHOTT: Yes.

PN23

THE COMMISSIONER: Well, the employees would have access to it. So I do not see that - should the situation arise and should my comment be taken as indicating that I would ever think it would, but should it arise that there is an issue about what it means, etcetera, well, obviously there would be a need for the appropriate body to have access to that material. But given what you have put to me I just raise that for your consideration and because of that other section of the Act and what flows from that. I have, in fact, in other instances taken steps to deal with that issue. Well, it is public that I have, in fact, put the material in a sealed envelope. So all I am doing is raising it for your consideration and the NUW.

PN24

MS MULCAHY: I do not have any objection to that. I was just considering, I am not certain that the appendix usually get put on Osiris anyway.

PN25

THE COMMISSIONER: Yes, it would be.

PN26

MS MULCAHY: They do?

PN27

THE COMMISSIONER: Yes, the whole lot. I do not know whether - it would certainly go on this file. Whether it all gets put on Osiris - well, you have had an experience, Mr Kingshott, where you have examined previous agreements which have been certified which have the confidential information on the website, as I understand it?

PN28

MR KINGSHOTT: No, the actual framework agreement has been on the website but the appendices and the confidential information have not appeared on the website.

PN29

THE COMMISSIONER: They have not?

PN30

MR KINGSHOTT: No.

PN31

THE COMMISSIONER: Well, that may well - well, who knows why that is. It may have been others that I have dealt with, I do not know. I will not claim the credit. Anyway, if you can let me know. Implicit in all of what I have said is the fact that I am satisfied that all of the requirements of the Act both in terms of process and in relation to the no disadvantage test have been met and I certify the agreement. My associate will give you a sealed copy of the agreement. We adjourn, thank you.

ADJOURNED INDEFINITELY [2.26pm]