AG2002/2178, Transcript of Proceedings [2002] AIRCTrans 1853 (28 May 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/2178

APPLICATION FOR CERTIFICATION OF
AGREEMENT WITH ORGANISATIONS OF
EMPLOYEES (DIVISION 2)

Application under section 170LJ of the Act
by ABB Australia Pty Limited and Another re
application for certification of ABB Service
Australian Power Industry Substation
Enterprise Bargaining Agreement 2001

ADELAIDE

12.30 PM, MONDAY, 13 MAY 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon, can I have some appearances.

PN2

MR R. DONNELLY: Yes, Senior Deputy President, I appear on behalf of the Communications, Electrical and Plumbing Union, if the Commission pleases.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Donnelly.

PN4

MR D. PARKER: Yes, sir, I appear on behalf of ABB Australia Proprietary Limited.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parker. Mr Donnelly, I understand you have won the prize whereby you are going to take the primary running of the matter today.

PN6

MR DONNELLY: That is correct, sir. It is Mr Parker's first time in the Commission. The EBA, sir, you had a statutory declaration forwarded to you by the CEPU which lays out that the terms and conditions of the Act have been met and complied with. The EBA vote, sir, was conducted on 2 January and there was some 9 ABB employees present at that point in time and they all voted in favour of it. The remaining employees, sir, who weren't available, were contacted by the telephone and they also all voted, yes, so the complete vote from every employee of ABB, sir, was in the affirmative.

PN7

A couple of issues on the EBA, sir, which you would have noticed would have been the nominal expiry date, which is to 31 December 2003 and the award which applies to this, sir, is the National Electrical, Electronic and Communication Contract Industry Award. We would seek, sir, from the CEPU for certification of the ABB Service South Australian Power Industry Substation Enterprise Bargaining Agreement, if the Commission pleases, and I'm more than happy to answer any questions that you may have, sir.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Donnelly. I can indicate to you I do have a couple of questions.

PN9

MR DONNELLY: Yes, sir.

PN10

THE SENIOR DEPUTY PRESIDENT: But it might be best if I hear from Mr Parker first of all.

PN11

MR PARKER: Thank you, sir.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Parker, is there anything you want to add to, or indeed differ from at all, the submission put by Mr Donnelly?

PN13

MR PARKER: No, sir, his account of it is correct.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you. Mr Donnelly, can I refer you, first of all, to clause 19 of the proposed agreement and simply seek some clarification. This is the dispute resolution procedure.

PN15

MR DONNELLY: Yes, sir.

PN16

THE SENIOR DEPUTY PRESIDENT: It proposes at point (d) that:

PN17

An unresolved matter may be referred to the Australian Industrial Relations Commission for conciliation.

PN18

I need to make the point I'm not going in search of work. My question to the parties is: have the parties considered what happens in the event that conciliation is not successful at resolving the dispute?

PN19

MR DONNELLY: We haven't had detailed discussions on that, sir, but I point out that relationships between ABB Service, their employees and the union is very, very good industrially, sir. If it couldn't be worked out during conciliation, we would have to pursue some form of arbitration, whether it is through an independent arbitrator, or through the Commission if the Commission had the powers to do that, sir.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Parker, you are in agreement with Mr Donnelly on that answer?

PN21

MR PARKER: Yes, I am, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Donnelly, my next question relates to clause 31 of the proposed agreement and, in particular to 31.5.

PN23

MR DONNELLY: Yes, sir.

PN24

THE SENIOR DEPUTY PRESIDENT: Which is the bargaining agent's fee. Can you tell me how that arrangement works, or is proposed to work, Mr Donnelly?

PN25

MR DONNELLY: Yes, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: That is, does the bargaining agent's fee apply irrespective of whether a person is a member of a union?

PN27

MR DONNELLY: Yes, sir, it does, sir.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. How does the arrangement propose to operate in relation to the pro rata arrangement?

PN29

MR DONNELLY: The pro rata arrangement, sir, which is on the next page I believe, would be if a person had only been working there for some 6 months, sir, that is my understanding. So if the person is there for 6 months you would be talking about half the bargaining agent's fee for an example, sir.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, but what about if a person was only there on a temporary, or short term basis?

PN31

MR DONNELLY: If a person is there for - it does say "pro rata" and just looking through the information again, sir, it does not give any specified time, so if a person is there for 3 months, for example, or 2 months, that pro rata would apply to that part also, sir. I think what you are getting at, sir, is a person wouldn't have to pay the full $500 fee per annum, if they were only working there for one month, for example, and that is certainly not the intention.

PN32

THE SENIOR DEPUTY PRESIDENT: So that if someone was engaged as a casual employee pursuant to clause 24 of the agreement and, as such, was going to be engaged for a period of, let's say, less than 8 weeks.

PN33

MR DONNELLY: Yes, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: Then, what do the parties propose should apply in relation to the bargaining agent's fee outlined in clause 31.5?

PN35

MR DONNELLY: If the employee had have been there as a casual employee for 4 weeks, sir, then that person would pay - my understanding is that they would pay one-twelfth of that bargaining agent's fee.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you, and the bargaining agent's fee would be applicable to apprentices?

PN37

MR DONNELLY: No, the intention is not to be applicable to apprentices, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: Where does it indicate that, Mr Donnelly?

PN39

MR DONNELLY: Well, it does not indicate that, sir, but that would certainly be the very clear intention of that but, no, it does not. That would be my understanding, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: Mr Donnelly, I need to indicate to you that I do have some reservations about the extent to which I can certify an agreement with a bargaining agent's fee of this nature in it.

PN41

MR DONNELLY: I understand that, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: I think it is fair to say that the issue of the bargaining agent's fee has been the subject of some conjecture over the last year.

PN43

MR DONNELLY: That is correct, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: And in fact remains the subject of some conjecture.

PN45

MR DONNELLY: That is correct.

PN46

THE SENIOR DEPUTY PRESIDENT: If I apply the approach - and I can indicate that in the event that it becomes necessary to apply any approach, I will follow the logic outlined recently by the Full Bench in its decision of PR917092, which was an appeal decision against a decision of Deputy President Ives, and in that decision the Full Bench indicated that:

PN47

Where a substantive amendment is required to remove an impediment to certification, that amendment must be bought about in the manner prescribed in the Act for the making of agreements.

PN48

Now, that prompts me to ask the question of both the parties in this regard, in that it appears to me that I will need to make a decision in relation to the extent to which the bargaining agent's fee relates to a matter appertaining to the employment relationship and, as such, that decision has the potential to - and I would put it there is no more than that at this stage - the potential to result in the rejection of the application. I just want to make sure the parties understand that position.

PN49

MR DONNELLY: Yes, sir, the decision from the Full Bench which he was talking about, I was given a copy of that this morning, sir, and I have read that and I understand what that says. What we have done on a previous occasion, as you are aware sir with yourself, is that we have deleted clause 31.5, depending the appeal. The parties on the initial lodging of this enterprise bargaining agreement had discussions on that and agreed that if the Commission pleased and wanted to go down that track that both parties would agree to that, sir, but I think you were saying that this decision may make that a bit more complex.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, I think it makes that approach which may have been followed in the past somewhat more questionable.

PN51

MR DONNELLY: Yes, I understand that, sir.

PN52

THE SENIOR DEPUTY PRESIDENT: And to that extent I am not proposing that option at all to the parties. I'm simply indicating that there is a choice here and the choice is fundamentally one that lies at this stage with the parties. You can leave the agreement in its existing form and simply seek, as to date you have done, that the agreement be certified. That means, of course, that if I find that that particular clause, 31.5, is such that it is not provided for, then, the agreement would be rejected in its entirety. The alternative is one of saying: the agreement application could be delayed and the parties could seek to amend the agreement through the process envisaged in the Act, which would require that employees have the opportunity to reconsider the agreement.

PN53

Now, I'm not - and I need to make this absolutely clear - I'm not making a finding on the extent to which the agreement can be certified with that existing clause 31.5 in it at this stage. I'm simply seeking to make sure that the parties understand that if the agreement is put to me, I do not, as I see it, have the opportunity to give you the option of simply removing that one clause.

PN54

MR DONNELLY: Yes, I understand that, sir, and that is what the orders from here say that. If we had have known that prior to lodging this it was going to be the case, of course, sir, we would have modified it prior to that. Could I ask, sir, that we could go into conference for some 5 minutes?

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, we will go off record for a short period of time.

PN56

MR DONNELLY: Thank you, sir.

OFF THE RECORD

PN57

THE SENIOR DEPUTY PRESIDENT: Back on the record, thank you. Mr Donnelly, you have had the opportunity to consider your position. Perhaps you can outline it to me.

PN58

MR DONNELLY: Yes, sir, we were because of clause 31.5 bargaining agent's fee, will seek leave if you like, sir, to go away, modify the agreement, get it out to the members again for 14 days. The members of ABB will vote on that agreement and we would seek a speedy return to the Commission so that we can get these new conditions occurring for the employees of ABB, sir.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Donnelly. I can indicate to you that I believe the appropriate course of action would in fact be for either the parties to withdraw the current application, or technically for me to refuse the current application and for a fresh application to be made supported by the appropriate statutory declarations.

PN60

MR DONNELLY: Yes, sir, we will do that, we will withdraw the application. We will put in a new application with the statutory decs from the CEPU and ABB Services Limited and we will get them into the Commission ASAP, sir.

PN61

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Parker, are you in agreement with that approach, are you?

PN62

MR PARKER: Yes,sir, I'm in agreeance with that.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Donnelly, I can indicate to you that when you do file your new application, if you talk with my staff in terms of the timing of that application, we will endeavour to ensure that the matter is brought on with every possible level of haste, so that the extent of any disadvantage to employees is minimised.

PN64

MR DONNELLY: Thank you, sir, and we would be working with ABB to get a copy out to their employees by tomorrow to start the 14 days going as soon as possible, sir. I thank you for that.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, one last issue of clarification, if I can thank you, Mr Donnelly. Just on the question of union membership. I just wondered whether you can confirm very clearly to me that there is nothing in the agreement that in any way requires employees to be, or to remain a member of the union?

PN66

MR DONNELLY: No, sir, there is not and, as you are aware, that is against the Workplace Relations Act, sir.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR DONNELLY: There is nothing in there which says that you must be in the union. It is up to the employee to decide whether it is to their benefit to be in the union, or not, but they have got a very clear choice, sir.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you. Very well, look, I will note the request that this application is withdrawn and I will anticipate that some time within the next few weeks I will have a new application from the parties and we will deal with that one as soon as we possibly can.

PN70

MR DONNELLY: Yes, sir, I would hope within 3 weeks that you would have that application. We will be pretty speedy on this one.

PN71

THE SENIOR DEPUTY PRESIDENT: All right, thank you. I adjourn the matter on that basis, thank you.

ADJOURNED ACCORDINGLY [12.52pm]