AG2002/642, Transcript of Proceedings [2002] AIRCTrans 1812 (23 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

COMMISSIONER REDMOND

AG2002/642

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Electrolux Home Products Pty Limited - Cooking
Plant, Dudley Park and Others for certification of
the Electrolux Cooking Plant Dudley Park
Enterprise Agreement 2001

ADELAIDE

9.24 AM, THURSDAY, 9 MAY 2002

PN1

THE COMMISSIONER: Appearances for the record, please.

PN2

MR S. BAKEWELL: I seek leave to appear as agent on behalf of Electrolux Home Products, and with me today, MS C. BAKER.

PN3

MR E. GRUE: I appear on behalf of the Australian Workers' Union, and with me, MR J. BRAITHEWAITE.

PN4

MR B. JOHNSTON: I appear on behalf of the CEPU Electrical Division.

PN5

MR J. WATSON: I appear on behalf of the Australian Manufacturing Workers' Union.

PN6

THE COMMISSIONER: Yes, Mr Bakewell.

PN7

MR BAKEWELL: Thank you, Commissioner. This agreement, Commissioner, applies to the constitutional corporation, Electrolux Home Products Proprietary Limited. The agreement applies to both a geographically and operationally distinct part of the business, being the cookers operation located at Dudley Park in South Australia. The agreement contains at clause 14 a dispute settlement procedure which, under the stated conditions empowers the Commission to arbitrate disputes between the parties.

PN8

The agreement does not unfairly discriminate or exclude any particular group of employees in its operation. At least 14 days prior to the vote, Commissioner, all employees had access to the proposed agreement and this was achieved by posting a copy of the proposed agreement to all employees on 21 February 2002. Prior to the approval of the agreement it was explained to all employees. This was achieved by both meetings and written communiques. All employees covered by the proposed agreement were given a reasonable opportunity to vote.

PN9

This was achieved under a ballot process which was managed by the Australian Electoral Commission and included an agreed process to deal with employees who might otherwise have been absent from the vote on the proposed ballot dates. There was subsequent approval by a valid majority of employees on 25 March 2002 as declared by the Australian Electoral Commission and witnessed by both management and employees' scrutineers. The agreement was filed in the Adelaide Registry on 24 April 2002 and we note, Commissioner, that is just outside of the 21 day statutory limit. So we would be seeking the Commission's discretion to again let the parties forgo the 21 day limit.

PN10

If I may explain why that delay came about, Commissioner, there were some difficulties securing statutory declarations and signing on the agreement as it moved between the various parties. The agreement will operate for a period of two years in this instance, Commissioner, which expires on 30 June 2003. Certification of the agreement will of course formalise the first wage increase which will apply from the first full pay period on or after 1 July 2001. Commissioner, we otherwise rely on the statutory declarations filed by the parties. There being no other questions for me, we would commend the agreement to you for certification.

PN11

THE COMMISSIONER: Thank you. Mr Braithewaite.

PN12

MR BRAITHEWAITE: Commissioner, in relation to this matter, I seek to deal specifically with clause 26, the casual and contract labour clause. What we seek to put on transcript today, sir, is a clear and concise understanding of clause 26, the casual and contract labour clause. This is due to the failure of the company to follow the procedure in the previous agreement in respect to clause 25 where there were numerous hearings before the Commission in relation to its application.

PN13

There has been incidents in the past few days where the company have, in our view, not followed the proper procedure in relation to the use of casual and contract labour and therefore we seek to address that. We did try to meet with the company prior to this hearing to address these issues, but unfortunately no meetings have been arranged. What I would seek to do, Commissioner, is to deal with each sub-clause of the document point by point and seek the company's response as we go through so that if there are any differences of opinion in relation to each of those sub-clauses, we need to sort those out as we go through.

PN14

Clause 26.1.1, Commissioner, basically I believe the clause speaks for itself in that it outlines the objective and the consultative committee will review the arrangements and make recommendations, where mutual agreement is reached, seek to vary those arrangements in accordance with the Act. So the agreement, in my view, would need to have an application to the Commission to have the clause varied in accordance with the Act. I'm not sure Mr Bakewell, whether he's got any comments in relation - or adverse comment in relation to the first part of that clause.

PN15

THE COMMISSIONER: Do you want to respond to this point by point or do you want to do it in your reply?

PN16

MR BAKEWELL: Commissioner, I think I would rather hear all of what Mr Braithewaite has to say.

PN17

THE COMMISSIONER: Yes. Carry on, Mr Braithewaite.

PN18

MR BRAITHEWAITE: Again, 26.1.2 follows, as I've just gone through. 26.2 in definitions. 26.2.1 non-permanent labour means casual, fixed term employees of the company. That is Electrolux. Labour hire personnel who are engaged and contractors, employees of other companies brought in to do work on the Electrolux premises. So all work done on site is covered as far as non-permanent labour definitions. 26.2 self-employed contractors are dealt with in sub-clause 26.3.3 in that the company will not employ self-employed contractors. 26.3, 26.3.1 the company will utilise the forms at attachment 2. The forms that I did submit in relation to the washing products matter are in fact copies of those forms that apply to cooking products and the Commission can see they are actually examples of what has happened in the past.

PN19

I will need to indicate that the document submitted to the Commission, or as far as the one that I had, does not have attachment 2. I just question whether the Commission has attachment 2 in respect to this document.

PN20

THE COMMISSIONER: No. It should be at the back of the agreement, should it not?

PN21

MR BRAITHEWAITE: Yes, Commissioner.

PN22

THE COMMISSIONER: No, it finishes on the page where the parties have signed it.

PN23

MR BRAITHEWAITE: Well, I can submit, Commissioner, that the document that I tabled in the washing products is the two forms that apply to cooking products. What I would just seek to do, Commissioner, is just go through the two forms to see whether there is any disagreement between the parties in relation to the forms. It's titled: Form A, non-permanent

PN24

employee register.

PN25

THE COMMISSIONER: This is the form that was attached to the last agreement.

PN26

MR BRAITHEWAITE: That's correct, Commissioner.

PN27

THE COMMISSIONER: Well, I thought the company said that they agreed with it.

PN28

MR BRAITHEWAITE: Well, that's fine then.

PN29

MR BAKEWELL: In the document that we've been given here I will just check with Ms Baker. We can confirm that that is the document that is used at the cookers plant.

PN30

THE COMMISSIONER: Yes, thank you. Well, that document is and should therefore - you will have to send me a copy for the agreement, to be attached to it. That might cut your speech a little short, Mr Braithewaite. It will save you some work.

PN31

MR BRAITHEWAITE: Thanks, Commissioner. The clause at 26.3.1 goes on that the company will consult. The company will gain agreement, and I emphasise the fact that there is a need for agreement. It goes on to say that the union will not unreasonably withhold agreement. I would submit that should agreement not be reached, that clause 26.4.10 is applied and the employer does not engage non-permanent labour while this procedure is being followed. It clearly needs agreement. 26.3.2 deals with labour that performs work not done by Electrolux employees, ie, for instance plumbing, painting, glazing, those areas of work which do not fall within the classifications engaged by Electrolux.

PN32

26.3.3 deals with the issue of self-employed contractors and is clear in the fact that the company undertakes not to engage self-employed contractors. In relation to 26.4.1 provides for 5 days notice of the intention to utilise non-permanent labour and it provides for agreement to waive the requirement for 5 days notice if agreement is reached. If no agreement, then the notice period of 5 days identified stands and is a requirement of the agreement. Clause 26.4.2 deals with the shop rate for the relevant classification, that is that the rate that applies to the Electrolux employee and at the level in the C classification of the award applies, ie if the company's fit at, for instance, a C at a C7 level, then that is the rate that does apply and including the additional allowances, such as casual loading of 25 per cent, shift loading, etcetera.

PN33

Clause 26.4.3 deals with the engagement for a maximum period for a non-permanent employee for a period to a maximum of 6 months. Clause 26.4.3.1 deals with once-off extension, that is if agreement is reached, and I emphasise agreement is reached with the parties, an extension on a one-off basis can occur. If there is no agreement the employee is either made permanent or there is not further work for the employee and in accordance with form B arrangements would go through for the release. Clause 26.4.3.2 deals and speaks for itself. Clause 26.4.3 - - -

PN34

THE COMMISSIONER: Point 4 you are up to.

PN35

MR BRAITHEWAITE: Sorry, Commissioner. I just dropped a line. 26.4.4 deals again with the five days notice of intention to release or transfer, again comes down to forms A and B. 26.4.5, a non-permanent service on one site will count for a transferred site. For instance if a person at Cooking Products did 3 months, transferred to the Beverley site for example, then that would apply as far as service was concerned. 26.4.6 again I believe speaks for itself and I don't seek to put submissions. 26.4.7 indicates that if a non-permanent worker has the employment extended they will become a permanent employee, inclusion of the extension.

PN36

26.4.8 the company will not terminate the employment of a non-permanent employee to avoid obligation. Clearly that if a non-permanent worker for instance with 4 months service the company wouldn't be able to terminate that employee and replace them with another non-permanent employee with a view to avoid its obligations. 26.4.9 the company will ensure that all permanent personnel observe all safety conditions, speaks for itself, and 26.4.10 any disputes arising out of this clause will be addressed by the disputes procedure. Again I think that speaks for itself in relation to where there is no agreement.

PN37

Commissioner, with those particular points I would submit that the agreement has been - sorry, statutory declarations have been filed with the Commission. It is my belief that the requirements of the Act have been met and would seek the certification of the agreement subject to the comments of my colleague Mr Bakewell, if the Commission pleases.

PN38

THE COMMISSIONER: Yes. Mr Johnston?

PN39

MR JOHNSTON: Thank you, sir. Sir, we would concur with the submissions made and also seek the reply from Mr Bakewell and indicate that the requirements of the Act have been met.

PN40

THE COMMISSIONER: Yes. Mr Watson?

PN41

MR WATSON: Commissioner, on behalf of the Australian Manufacturing Workers Union and its members employed at the Cooking Products Dudley Park, sir, we seek the certification of the agreement before the Commission today.

PN42

THE COMMISSIONER: Thank you. Yes, Mr Bakewell, do you have anything in reply?

PN43

MR BAKEWELL: Commissioner, look all I will say is in relation to clause 26 is that this particular clause, Commissioner, was one clause where agreement between the parties was gained through a joint process or negotiated process in respect to the Dudley Park site. It was extensively negotiated between the parties. We spent some 2, perhaps 3 days going through this clause and reaching the words that are before you today, Commissioner, and it is the clause in this form that has been put to employees and voted on. By and large in respect to what Mr Braithewaite has said we agree that the clause speaks for itself but we don't believe it is appropriate, Commissioner, in terms of the document here today to give effect to any alternate variation other than the words that are before you.

PN44

It is our view that this is the document that is voted on. If there is subsequently disagreement between the parties as to the application of any part of this clause then there are appropriate mechanisms which the parties have used in the past to have those matters dealt with and they are our submissions, Commissioner.

PN45

THE COMMISSIONER: Yes, yes, thank you.

PN46

MR BRAITHEWAITE: Commissioner, I have great difficulty in the response from the company. What we are here today is to certify an agreement that the parties understand its intent. What the company is saying to the Commission is that the submissions made by myself in relation to the intent of the agreement are in fact not their understanding of the agreement. Therefore I would have grave doubts about the ability of the Commission to certify an agreement if in fact the Commission isn't satisfied that the parties understand the intent and application of that clause.

PN47

Should a dispute come to the Commission for assistance it would be my view that the Commission would need to know at the time of certification the application of that agreement, in particular should either of the parties make application under 170LW. The Commission has to apply the agreement and its application. What the company are saying is that we reserve our rights to interpret the clause any way we like and that the parties then have to go to the Federal Court for an interpretation. That is an absolute nonsense. We need to sort that out here today.

PN48

THE COMMISSIONER: Well, I don't know that the parties do have to go to the Federal Court, Mr Braithewaite. I think that the dispute settling procedure gives the Commission the right to deal with this clause if and in fact it is in dispute.

PN49

MR BRAITHEWAITE: Well, can I just indicate that during the previous agreement there was a clause in relation to casual contract labour at clause 25 and each time the parties approached the Commission for assistance the company's position was that if there is to be an interpretation it is Federal Court and the Commission had no jurisdiction and that is one of the main reasons, Commissioner, for seeking to have the clause clarified on transfer.

PN50

THE COMMISSIONER: Yes. Well, I'm not sure. I remember that dispute, Mr Braithewaite, but I'm not sure whether that came before or after but there is now clear reference from the Full Bench of the Federal Court which has overturned - I'm sorry, I think it is the High Court overturned it but if the agreement gives the Commission the power to deal with it the Commission now has the power to deal with it and as I read this agreement now it does give the Commission the power to deal with any dispute arising out of it.

PN51

MR BRAITHEWAITE: Thank you, Commissioner. What I would ask is reference for that clause from your associate after the conclusion of the hearing, if the Commission pleases.

PN52

THE COMMISSIONER: Yes. Well, she won't know now and I'm not in my chambers. I will send it to you.

PN53

MR BRAITHEWAITE: Thank you very much, sir.

PN54

THE COMMISSIONER: Anything else? All right, in accordance with section 170LT of the Workplace Relations Act 1996 the Commission hereby certifies the attached written agreement. This agreement shall come into force from today's date and remain in force until 30 June 2003.

ADJOURNED INDEFINITELY [9.45am]