AG2002/623, Transcript of Proceedings [2002] AIRCTrans 1641 (14 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/623

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by PCP Pty Limited and Another for
certification of PCP Pty Limited Enterprise
Bargaining Agreement 2002

ADELAIDE

10.01 AM, TUESDAY, 30 APRIL 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, could I have some appearances please?

PN2

MR B. KLITCHER: If it please the Commission, I appear on behalf of PCP and, sir, with me is Mr G. GARVIE, General Manager of PCP.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Klitcher.

PN4

MR HARRISON: May it please the Commission, I appear for the CFMEU.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harrison. Mr Klitcher, I take it you have the honours this morning?

PN6

MR KLITCHER: Yes, I do, thank you, sir. Sir, before I get underway I seek an extension of time, you will notice that the application was lodged out of time and I submit to you that there has been no significant, if any, change to the composition of the workforce from when the agreement was agreed and voted on by the workforce up until when the agreement was lodged in the Commission which was 27 March and Mr Garvie can attest to that if you so require.

PN7

THE SENIOR DEPUTY PRESIDENT: Is that a question in dispute?

PN8

MR HARRISON: We support that application, if it please the Commission.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Klitcher, what was the reason for the delay in this matter?

PN10

MR KLITCHER: I think there were a number of delays caused by who was doing what with statutory declarations and I think people were absent. So it was a combination of several things that it wasn't lodged within the 21 days of the date of voting.

PN11

THE SENIOR DEPUTY PRESIDENT: Very well. Given the agreement between the parties on that question of the make-up of the workforce I will exercise the discretion provided for in section 111 of the Act so as to extend to the time frame for lodgement of the application pursuant to section 170LM(2). Thank you.

PN12

MR KLITCHER: Thank you, Commissioner. If the Commission pleases. Sir, this is the, I think, the second agreement between the parties in relation to the enterprise known as PCP. Sir, it was amenable discourse, if you like, between the parties. The union representing the employees met with the consultative committee and members represented the company on quite a few occasions to further the negotiations. The CFMEU is a party to the agreement, and as I said, represented the employees at each of the negotiation sessions.

PN13

Sir, the agreement was approved by a valid majority of employees on 7 February 2002 and there are 25 employees covered by the agreement of which you will notice that four are under the age of 21 years and three are casual employees. Sir, before negotiations commenced the company gave the employees 14-days notice and it was a mutual giving of notice I suppose, sir, because both parties were aware that the previous agreement had - this expiry date was approaching. So it was, if you like, a consensual giving of notice that negotiations get underway to negotiate a new agreement.

PN14

Minutes of all the meetings that took place the union, the employee reps and the company representatives were published and circulated to the committee and also the workforce - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Klitcher, just on that issue which relates to paragraph 6.6 in the statutory declaration, the response indicates that all employees either had or had ready access to the proposed agreement in writing, in that that "yes" box is ticked.

PN16

MR KLITCHER: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: The more detailed answer does not confirm to me that in fact employees did or did not have their proposed agreement. Can you just confirm to me that the employees who are to be covered by this agreement actually had a copy of it in accordance with - - -

PN18

MR KLITCHER: That is my understanding.

PN19

MR HARRISON: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: - - - 6.6?

PN21

MR KLITCHER: Yes, that is - that is correct, yes.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN23

MR KLITCHER: Sir, the employees were advised and as was the consultative committee about the process for the negotiation for the agreement and the terms have been explained to the employees, both by management and by the consultative committee. We say that the terms of the agreement are no less favourable than those covered by the award and, of course, sir, you will notice there that the award is a State award, the Plasterers and Terrazzo Workers Factory and Mixed Enterprises Award but of course, PCP as you know is a constitutional corporation and the parties have chosen to have the agreement certified under the Federal Act.

PN24

We say that in overall terms there is no reduction in benefits for the employees, as compared to the award. In clause 8, there is a provision in the agreement for the preventing and settling of disputes. It is a clause that has worked well in the past and virtually arrived from the previous agreement. Sir, the agreement specifies the nominal expiry date as 7 February 2005, in clause 4. The agreement, I guess, the conclusion of the negotiation of the agreement was subject to the bargaining period as stated in the statutory declaration PB2001 number 4044.

PN25

Sir, unless you have any specific questions of either myself or Mr Garvie, they really form the substantial part of my submissions this morning and I ask that the Commission endorse the agreement and certify it and approved at this morning's hearing.

PN26

THE SENIOR DEPUTY PRESIDENT: Mr Klitcher, I should indicate to you I do have a couple of questions in relation to the agreement.

PN27

MR KLITCHER: Sure.

PN28

THE SENIOR DEPUTY PRESIDENT: They are not designed to trip up the process of certification at all, but rather to clarify issues at this stage. I might delay asking my questions in the hope that the union answers them before I need to ask them.

PN29

MR KLITCHER: Sure.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harrison?

PN31

MR HARRISON: If it please the Commission, we urge this certification and I move on to the statutory declaration of Ben Carslake, which is filed and dated 20 March 2002.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR HARRISON: If it please the Commission.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harrison didn't quite answer my questions but, Mr Klitcher, I will address my questions to you, but I need to make it absolutely clear first of all that the questions are not designed to necessarily trip up any process of certification and, secondly, that there is a very clear invitation to Mr Harrison to jump to his feet to assist in any answer should that be the case.

PN35

MR KLITCHER: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Can I take you firstly to that dispute settling procedure? I note that the dispute settlement procedure proposes that as a last resort the matter may be taken to the Australian Industrial Relations Commission in an endeavour to reach a mutually acceptable settlement through conciliation, and just ask whether the parties, as I understand that position, it precludes the Commission from an arbitrated outcome and whether that is, in fact, the intention of the parties. There is no right or wrong answer on this issue, save and accept, that should you both have a different answer then it might be a question that is worth considering now.

PN37

MR KLITCHER: Sir, that matter is a matter which I have thought about and my discussions with the company, at least, indicates that in reaching an agreement if there is a dispute about matters in that agreement then the hopes of the parties and, of course, the parties have indicated to me when I have spoken to them that it would be desirable for settlement to be reached through conciliation rather than arbitration.

PN38

Now, there is no reason that I can find in anywhere else in the agreement or the statutory declarations would indicate that the parties would be desirous of having an arbitrated decision rather than a conciliated settlement of any disputes and on that basis, I guess, the positive overrode the negative that disputes could be settled amicably through conciliation using the services of the Commission.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, well, you see and I make it clear, I am certainly not suggesting, first of all, that you need to have any form of dispute that warrants the use of this clause, but secondly, in the event of such a dispute on reading that last paragraph of clause 8 as empowering the Commission to endeavour to reach a mutually acceptable settlement through conciliation, but to do no more than that.

PN40

MR KLITCHER: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: And I am just anxious that both parties confirm that that is the intention?

PN42

MR KLITCHER: Correct, and the parties may involve the Commission, it does not say that they will categorically.

PN43

THE SENIOR DEPUTY PRESIDENT: That is right.

PN44

MR HARRISON: Yes, this wasn't referred to me before entered in to, but similar clauses have been discussed between Mr Carslake and I in the past and he knows full well that does not go far enough to allow arbitration or indeed any other powers of the Commission, it effectively limits the powers of the Commission.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you, and that is the agreed intention of the parties?

PN46

MR HARRISON: Well, if it isn't, it is difficult to see why we agreed to that text.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you, you have answered my question. As I said, the critical issue there was, from my perspective, that both parties were saying the same thing. Can I take you to clause 12, and ask Mr Klitcher whether it would be possible to have outlined to me or provided to me a schedule that established the existing rates of pay which form the foundation for the percentage increase.

PN48

MR KLITCHER: I'm not sure that they have been published before.

PN49

THE SENIOR DEPUTY PRESIDENT: You see, the reason for asking for that is that there have been occasions when agreements are prescribed a percentage increase and then when that increase actually becomes applicable the parties find that they have been working off different premises in terms of existing rates of pay and I am anxious that I have something from the parties that represents an agreed position that I can enclose with the Commission's file so that in the unlikely event of a disagreement in the future we have, at least, got an established reference point.

PN50

MR KLITCHER: Certainly I don't think there is any great problem in the company supplying a schedule of wage rates, but I think the Commission's concerns might be allayed with the opening sentence in that opening paragraph in that clause:

PN51

All employees will receive a 3.5 per cent increase to their ordinary hourly rate of pay.

PN52

PN53

MR HARRISON: Yes, but what is that?

PN54

MR KLITCHER: It does not say the award hourly rate of pay.

PN55

MR HARRISON: Quite.

PN56

MR KLITCHER: It says: their ordinary hourly rate of pay, and their ordinary hourly rate of pay is the over award component that they are receiving immediately prior to the application of this agreement and therefore that hourly rate will be increased by 3.5 per cent.

PN57

THE SENIOR DEPUTY PRESIDENT: Well, if it were to be possible to produce such a document to ensure that it is provided to me on an agreed basis then I am simply proposing that I would attach that to the Commission's file. It would not be available for publication - - -

PN58

MR KLITCHER: Sure, I can do that.

PN59

THE SENIOR DEPUTY PRESIDENT: - - - but it would be recorded in the Commission's file.

PN60

MR HARRISON: We can do that.

PN61

THE SENIOR DEPUTY PRESIDENT: Would it be possible to do that within the next few days, Mr Klitcher?

PN62

MR KLITCHER: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. The next question I have also relates to clause 12 and that provides for that 3.5 per cent increase to be increased in the event that the Adelaide CPI exceeds 3.5 per cent. Just by way of clarification, can I understand that to me, firstly, that in each year of operation of this agreement should the Adelaide CPI exceed 3.5 per cent, then the 3.5 per cent increase would be increased accordingly - - -

PN64

MR KLITCHER: Yes.

PN65

THE SENIOR DEPUTY PRESIDENT: - - - to - and this is the second part of the question, to equate with whatever the Adelaide CPI is?

PN66

MR KLITCHER: Correct.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN68

MR KLITCHER: That is the intention of the parties.

PN69

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, you agree with that?

PN70

MR HARRISON: Sir, that tax had been in for some years.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you. In terms of clause 17, given that a later clause in the agreement, clause 26, talks of the possibility of a shift in the company's business orientation to the building and construction industry, I can safely presume that the employees engaged by the company are in fact capable of coverage by that Construction Industry Long Service Leave Act?

PN72

MR KLITCHER: Well, it has been approved by the board.

PN73

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN74

MR KLITCHER: I take that as being able to be covered by it, if the board approved it.

PN75

THE SENIOR DEPUTY PRESIDENT: Clause 20, the Waste Removal bonus?

PN76

MR KLITCHER: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: The equal sharing of that budgeted waste removal cost is on the basis of 50 per cent to the company and 50 per cent to be shared amongst the employees, is that the way that would be read?

PN78

MR KLITCHER: That is correct.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Klitcher, that admirably answers my questions.

PN80

MR KLITCHER: Thanks.

PN81

THE SENIOR DEPUTY PRESIDENT: I can indicate to the parties that I am satisfied that the agreement was reached through a process which reflected the requirements of the Act so that employees had an adequate opportunity to consider the content of the agreement before voting to accept it. I am satisfied that the agreement itself is of a duration envisaged by the Act and contains a dispute resolution process in accordance with the requirements of the Act. I am satisfied that the agreement does not contain any provisions which are contrary to the Act and that it meets the requirements of the no disadvantage test outlined in the Act.

PN82

I have noted that the parties have agreed to provide me with a schedule of current wage rates which will be appended to the Commission's file in relation to this matter. Upon receipt of that document I would propose to immediately certify the agreement and a certificate would then be prepared and forwarded to the parties shortly afterwards. It remains for me to congratulate the parties on reaching this agreement and to express my wish that it operates to benefit both the employees and the employer. Again, to stress, that whilst I asked questions about the dispute resolution process there ought be no obligation to actually have a dispute under this agreement. Thank you, I adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [10.20am]