AG2001/462, Transcript of Proceedings [2001] AIRCTrans 93 (28 February 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

AG2001/462

APPLICATION FOR CERTIFICATION OF AGREEMENT
(UNION-DIVISION 2)

APPLICATION UNDER SECTION 170LJ OF THE ACT
BY AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION AND WATTYL GROUP FOR CERTIFICATION OF THE WATTYL GROUP OF COMPANIES CERTIFIED AGREEMENT 2000

SYDNEY

9.42 AM, MONDAY, 12 FEBRUARY 2001

ADJOURNED SINE DIE

PN1

HIS HONOUR: Yes, this is matter AG2001/462, it is an application by Wattyl and also the LHMU for certification of the agreement to be known as the Wattyl Group of Companies Certified Agreement. Could I have appearances, please?

PN2

MS J. GRAY: May it please the Commission, I appear for the applicant, your Honour.

PN3

MR A. VERNIER: Your Honour, with your leave appearing for Wattyl and with me is MR W. MORRIS, employee relations manager.

PN4

MS GRAY: I'm sorry, your Honour. I also have with me MR K. CAINES, our delegate from the Blacktown site covered by this agreement.

PN5

HIS HONOUR: Yes, in relation to this matter there has been correspondence received from the Australian Service Union and a copy of that correspondence was distributed to the parties and the ASU has this morning sent a facsimile in effect relying upon its earlier assertion that the reason for intervention is that the ASU claims the Commission should not certify the agreement pursuant to section 170LU(8). The grounds for objection relate to the unfair exclusion of certain clerical employees purely because of their place of employment and non-membership of the LHMU there are no reasonable distinct characteristics of the employees intended to be covered except that they are all members of the LHMU.

PN6

There is no elaboration of that I think beyond stating that clerical employees who are members of LHMU at Blacktown and Rocklea are intended to be covered by the agreement to the exclusion of other clerical employees and attempts by the ASU to negotiate an equitable outcome for its members, particularly at Footscray, Bayswater, North Plympton sites through a matter listed or to be a party have been rejected by Wattyl. Effectively the representation this morning, I don't think I have brought it into court with me, but it is to similar effect and relies upon those grounds.

PN7

I note that the agreement applies to Wattyl in respect of all of the companies employees who are engaged in work within the classification structure covered in clause 13 in connection with the manufacture including associated laboratory activities, processing, treatment, handling, distribution but not retailing and/or storage of materials or products used in connection with decorative surface coatings or coverings and associated products at sites owned, leased and operated by Wattyl. The agreement was approved on 25 January and lodged, it would appear, the same day, it's within time.

PN8

It pertains to the bargaining period in C23576 of 2000 which would be ended as a result of the agreement and it operates as did the previous matter from 12 February, 2001 to 1 February, 2003. The materials on file include a fairly lengthy joint submission from the parties with an attachment comparing the respective positions. Perhaps that might be presented and also the ASU position might be spoken to. I have glanced at the agreement and I assume that the ASU complaint goes to those provisions where I think they're probably most adequately caught in the attachments for cross-skilled clerical employees who are switched from grades under previous agreements to the new classifications under the current agreement. But perhaps you might just indicate broadly that basis and if I'm wrong in that assumption it appears to be people who are both clerical and paint worker classifications.

PN9

Yes, Ms Gray?

PN10

MS GRAY: Thank you, your Honour, we have a number of minor matters to address as well but I will address your Honour's point first which is the objection from the Clerks Union. Your Honour is correct insofar as the Commission's assumption that the nub of the ASUs objection is the inclusion of cross-skilled clerical employees into this proposed agreement and the non inclusion of the ASU members and the persons who they are representing in their negotiations with the company in our agreement or in a mirror agreement.

PN11

We say that there is no substance in the ASUs objection. I have had lengthy conversations with Mr John Nucifora of the ASU explaining that the agreement which we are seeking to certify today before the Commission is one which covers distinct operational and organisational unit within the single business Wattyl, that the persons who are cross-skilled clerical employees are a very restricted and limited group of persons. They are, yes, LHMU members and we have an exclusion under our rules in terms of industrial representation of persons who are principally engaged in clerical functions in the paint industry.

PN12

These people have been members of ours for a number of years now, your Honour, and we have been unable to directly industrially represent their interests because of our rules. During these negotiations being very aware that these persons would not resign from our union and rejoin the ASU but insisted on remaining with the LHMU we sought a method by which we could directly represent them and include them in the agreement.

PN13

As a result of that we negotiated with the company for a cross-skilled clerical classification. Those people who are listed in the annexure to the agreement at Blacktown and Rocklea will be required and are required, your Honour, under the terms of the proposed agreement to retro-train in warehousing and manufacturing skills to the level that they are being placed in in the new agreement. There is no recognition within the agreement of clerical skills, there is no potential for these people to advance through the classification structure on the basis of clerical skills.

PN14

Those people will be treated in exactly the same manner, your Honour, as any other LHMU member or any other paint worker covered by the agreement and that is that in order to gain the benefits of the new classification structure they must be open and prepared to accept training in all of the skills at the level that they're being placed into and in order to progress through that classification structure they must pick up new warehousing and/or manufacturing skills.

PN15

This has been occurring over the negotiations between the parties at Blacktown and Rocklea whereby the people who are cross-skilled clerical employees have undertaken some training in warehousing areas and as recently as last week a number of those people were already undertaking training in the manufacturing production area of work. The Commission should, we submit, disregard the inference that's been made by the ASU that a distinction has been made between its members and potential members and the cross-skilled clerical employees simply on the basis of union membership.

PN16

A very clear indication that that has no validity whatsoever, your Honour, is that we have also over the past three years had a number of clerical employees who joined the union at Botany. Those people have not been included in the cross-skilled clerical employee classification for this reason. It's intended that the Botany site will close by about the end of this financial year. As a result of that there was no benefit to the company to introduce a new classification of cross-skilled clerical employee at Botany and to introduce the change in the nature of the work of our clerical members over at Botany to that of cross-skilled clerical employees because the benefit that the company would have gotten from such an expansion of the arrangement to Botany would've been restricted to six months.

PN17

The company wanted the flexibility to be gained by the cross-skilled clerical employees over the life of the agreement. So even in respect of our own members who are performing clerical work they were not included in this arrangement. We had approaches of course from numerous clerical employees as we have over the years to seek to become LHMU members to seek to be covered by the agreement. There was no potential at other sites for the same types of arrangements to be undertaken as they have been at Blacktown and Rocklea.

PN18

Our members at Blacktown and Rocklea have no objection and are very supportive of enabling these cross-skilled clerical people to perform paint worker work and to be trained in it even though, your Honour, there's a very clear potential of the use of long term casuals being reduced, available work for them being reduced by the use of cross-skilled clerical employees and also the availability of overtime potentially being reduced because of the use of cross-skilled clerical employees at Blacktown and Rocklea.

PN19

Our members were aware of all of those potential disadvantages to their own individual remuneration and to our members who have regular casual work at both sites. Nonetheless, those people have been fully integrated into a classification structure which as I said has no recognition of their clerical skills but only recognition of warehousing and manufacturing skills.

PN20

We say that it is clear that this agreement is a covering a distinct operation or organisational unit within Wattyl; that the nature of the work performed by the cross-skilled clerical employees is work of completely different nature to that performed by clerical employees represented by the ASU and that there would be absolutely no unfairness, we submit, that such persons not be included in our agreement.

PN21

As we understand it, your Honour, the company is negotiating with the ASU on a replacement agreement to the existing agreement between those parties which is the Wattyl Group Clerical Officers Company Focused Certified Agreement 1999. Of course, the company would be seeking from the ASU as it sought from us substantial offsets. The offsets which the union gave to the company can be summarised as, firstly, having a far more comprehensive agreement than what previously existed building in consistency across many of the sites in areas where because of past site awards and past restructuring and efficiency type agreements there was a diversity of working arrangements which have been brought very much into line with this document and a process for further consolidation of those arrangements in the next replacement agreement to this one.

PN22

There is the building into the agreement of in effect the underpinning award conditions such that an employee can now pick up this agreement and see virtually all of their terms and conditions other than certain customs and practices contained in the document without having to be expected to cross-reference to award and a multitude of site awards and agreements both written and unwritten.

PN23

The next major offset that the union granted to the company in return for the benefits which have flowed as a result of this agreement is an ability for the company in the absence of volunteers to change rostering arrangements at site within the scope of - - -

PN24

HIS HONOUR: I think these matters are summarised in the joint submissions aren't they?

PN25

MS GRAY: Yes, they are, your Honour. The third issue is the use of casuals which has been standardised at most sites with certain exceptions and those exceptions have been built into the substantive provisions of the agreement. They are the offsets which essentially the union gave in return for the substantial improvements of terms and conditions in this agreement compared to the previous agreement and of course compared to the award.

PN26

The Clerks Union, as we understand, may not be in a position to grant similar offsets but the company is negotiating with them and should they be able to come up with offsets of a reasonable nature then it's our understanding the company is prepared to flow similar terms and conditions of an improved nature to the ASU members. So we say that those persons will not be disadvantaged in the negotiation process. Both groups of people, both our members being the paint workers and the ASU members being the clerical people have had historically separate certified agreements and have separate underpinning awards. We're quite happy to bring evidence if your Honour felt that was necessary, to that effect.

PN27

HIS HONOUR: I don't think that's necessary, Ms Gray, I've got a fair grasp, I think, of the matter.

PN28

MS GRAY: Thank you, your Honour. We have between the time that we lodged the application and today, found three small typographical errors in the agreement. I'm not sure whether your Honour would rather we just simply tendered replacement pages for those and addressed them, or whether we should amend the documents that the Commission already has on file?

PN29

HIS HONOUR: I think just pass up the replacement pages but tell me what they are. Are these typographical errors from what was circulated, are they, or they substantive changes?

PN30

MS GRAY: I'm sorry, your Honour?

PN31

HIS HONOUR: Are these changes of any substance?

PN32

MS GRAY: No, your Honour, no. We have there five sets and there are three pages of amendments. The first page is a replacement page for page 15. The change there is under the heading Grade 3. The tendered proposed agreement stated:

PN33

Involves being able to perform all duties in level 2.

PN34

Which should grade 2, and that correction has been made.

PN35

There's a similar change on page 16 under level 3 where it says:

PN36

Current grade 2 with five skills.

PN37

It was level 2 in the agreement, so that change has been made simply changing the word level to grade.

PN38

HIS HONOUR: Sorry, this is under what, page 16?

PN39

MS GRAY: Page 16.

PN40

HIS HONOUR: Under what level, 3, is it?

PN41

MS GRAY: Sorry, under grade 2 where it says current grade 2. Sorry, your Honour.

PN42

HIS HONOUR: There seems to be a change in the type face.

PN43

MS GRAY: Yes, it has, your Honour. Under grade 3, the end of the first paragraph.

PN44

HIS HONOUR: I see, grade 1, grade 2.

PN45

MS GRAY: Yes, grade 1 and 2, rather than level 1 and 2. And the third change, your Honour, is that the leading hand rates in relation to colours and chemicals in the agreement which we lodged with the Commission, had incorrect leading hand rates. Those rates have been corrected on the replacement page.

PN46

HIS HONOUR: There seems to be a wrong page number with it.

PN47

MS GRAY: Yes, it is incorrect. It is actually supposed to be page 47, your Honour, I'm sorry about that.

PN48

HIS HONOUR: I don't think it is. It's on one of the attachments, isn't it?

PN49

MS GRAY: Yes, it is.

PN50

HIS HONOUR: In annexure A. Page 51, I think, in the copy I have, is that it? Botany site or Colours and Chemicals site?

PN51

MS GRAY: Colours and chemicals, yes, your Honour.

PN52

HIS HONOUR: Page 54, it appears to be.

PN53

MS GRAY: Yes; thank you, your Honour, it's page 54.

PN54

HIS HONOUR: And there's a rates difference, is there?

PN55

MS GRAY: Yes, there is, the incorrect rates were put in and the parties became aware of that after we'd lodged the documents so we'd like to have a replacement of that page as well, your Honour.

PN56

HIS HONOUR: I'll mark as exhibit GV1 the joint submission of the Union and Wattyl, and that attaches a fairly compendious comparison clause by clause of the award and agreement consolidation.

EXHIBIT #GV1 JOINT SUBMISSION OF ALHMWU AND WATTYL

PN57

Do you wish to add anything, Mr Vernier?

PN58

MR VERNIER: No. The company supports the union's submissions. I just may wish to say one thing in relation to the application for intervention. I think both parties oppose that, and we submit that the intervention by the ASU does not fall within section 43(ii) of the Act being, we submit, the only subsection upon which they can intervene. Neither subsection 43(ii)(a) or 43(ii)(b) have been met, so although the Commission has the duty to investigate matters we submit that there is nothing in section 170LU(8) which would prevent this agreement from being certified, and Ms Gray outlined succinctly all of the submissions which would support that there is a clear distinction between the member of the LHMU and the members of the ASU, which is contrary to the letter written to the Commission which seems to suggest that only the place of employment and the membership are the only issues, but in fact it is what the employees actually do which is the distinguishing factor. In that case, I think that there is nothing prohibiting the Commission from certifying the agreement, your Honour.

PN59

MS GRAY: Your Honour, if I could just clarify one point from what my friend said. The union had no intention of opposing the intervention of the ASU whether we could technically or not. We advised the ASU last week that we would not be opposing their intervention. We were quite happy to advise the Commission fully and frankly of the base upon which these cross skill clerical employees have been included in our agreement. We had nothing to hide. The Commission has an obligation and a duty to investigate the circumstances if raised, and we were quite prepared for the ASUs appearance today and have no difficulty with the issue that they raised. However, as we say, it simply lacked any validity whatsoever, in our submission. May it please.

PN60

HIS HONOUR: Yes. Well, I won't rule upon the intervention because the ASU is not here pressing the intervention. It has put a submission which I have taken into account whether it's intervened or not. I am obliged under section 170LU(8) to refuse to certify an agreement if it applies only to part of a single business that is neither geographically distinct, a distinct operation or organisational unit within the single business, and secondly, that I consider that the agreement defines that part in a way that results in the employment or of employees not being subject to the agreement where it would be reasonable for the employment to be subject to the agreement having regard to the nature of the work performed or the organisation and operational relationships between that part and the rest of the single business, and finally that I consider it unfair that the employment is not subject to the agreement.

PN61

In relation to the second and third legs of that test, it has been the case that the Commission has on occasions allowed intervention or has least taken into account the substantive complaint that is made. In this instance it has been made by the ASU. I am satisfied that there is no reason pursuant to section 170LU(8) why I should refuse to certify the agreement having regard to the explanation given and the nature of the cross skilling work that is envisaged and the nature of the movement between the existing classification and the new paint worker classifications.

PN62

I am satisfied that it is not a situation where it would be unfair to exclude straight clerical employees from coverage of the agreement. Those employees have not been covered by paint worker agreements of this kind between the LHMU and the company, and for the reasons that have been generally outlined in the submissions made by Ms Gray and Mr Vernier I'm satisfied that there is no occasion to intervene to refuse the agreement under 170LU(8). Otherwise it appears to me that the requirements of the Act and rules have been met.

PN63

The material before me is quite compendious in relation to an agreement that does break new ground, but I am satisfied that there are no problems so far as the no disadvantage test is concerned and that the requirement of the Act and rules otherwise have been met. The basis of that satisfaction in part is recorded in the check list which has been completed and signed by me following my perusal of the proposed agreement. That is part of the file in this matter, as is the reason for decision that I have given in transcript in association with the certification.

PN64

In accordance with 170LT of the Act, I certify the agreement. It shall come into force from 2 February, 2001, and shall remain in force until 1 February, 2003. It will be necessary to replace pages 15, 16 and 54 of the document certified with the replacement pages that have been passed up. Subject to that being able to be done or being done in due course, the agreement as certified will be sealed. It is document PR900757, and upon certification it ends the bargaining period in C23576 of 2000. I think it may be necessary for those certified agreements to be corrected with the pages that have been passed up.

ADJOURNED INDEFINITELY [10.09am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #GV1 JOINT SUBMISSION OF ALHMWU AND WATTYL PN57