AG2002/643, Transcript of Proceedings [2002] AIRCTrans 1920 (31 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/643

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Auspine Limited and Others for certification
of the 2002 Auspine Tarpeena Certified Agreement

ADELAIDE

10.00 AM, WEDNESDAY, 15 MAY 2002

PN1

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

PN2

MR C. RIDINGS: I seek leave today to appear on behalf of the employer, and with me, MR S. GOMER, Human Resources Manager of Auspine Limited.

PN3

MR P. MARTINELLA: I appear on behalf of the CFMEU Forestry Division, and with me, MR M. NICHOLLS.

PN4

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

PN5

MR G. MUNRO: I appear on behalf of the CEPU Electrical Division.

PN6

THE SENIOR DEPUTY PRESIDENT: Is there any objection to Mr Riding's application for leave in this regard? Thank you. Now, Mr Ridings, as the applicant, I take it that you will assume the initial role of explaining the agreement to me. I can indicate to the parties that Mr Ridings has contacted me as the applicant and I foreshadowed that I do have a couple of questions in relation to this agreement and I'm hoping that that opportunity, together with the delay this morning, might have allowed the parties to consider those issues. Mr Ridings, I'm in your hands.

PN7

MR RIDINGS: Yes, sir, we have had some discussions here this morning and we thank the Commission for the delay this morning to allow us to continue with that. The position of the parties today is that we would like to seek with the application and address the questions that you might have and then take matters from there, if that is acceptable.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ridings, as I said, I'm in your hands, thank you.

PN9

MR RIDINGS: Thank you, sir. Sir, it's an application under section 170LJ of the certification of an agreement at the Auspine facility at Tarpeena in the South-east of South Australia. The Commission has on file statutory declarations of the parties and there are a couple of preliminary points that need to be addressed in relation to the application. From the point of view of the parties the first of those is that the application is out of time and we are seeking an extension of time for filing the agreement. The reason that it was out of time is difficulty in reaching the various officers of the company and the unions involved, both at a state level and regional level and we didn't obtain the signatures in the required period.

PN10

So we seek leave to extend the period of time for that application. Also there is before the Commission an application to amend the superannuation clause of the agreement for which we also need to seek leave and possibly make some submissions. Sir, beyond that we say that the agreement has been reached by a valid majority of employees. It has been approved by a good majority of those employees. We have complied with the requirements of the Act in terms of the 14 day notice period and the provision of information, provision of a copy of the agreement and explanations to the employees.

PN11

It is basically a roll-over agreement from the previous agreement with the exception of a pay rise. There is no disagreement between the parties about the implementation of the agreement on the ground and at this stage, subject to the questions that you have asked, I don't have any further submissions.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridings, I can indicate, as I've said, that I do have some questions but it might be best if I save those in the hope that someone else might answer them before I need to even ask them.

PN13

MR RIDINGS: Thank you, sir.

PN14

THE SENIOR DEPUTY PRESIDENT: Now, who is going to open up from the union perspective? Mr Munro, you've won the prize.

PN15

MR MUNRO: Yes, if the Commission pleases, I'll support what has been put by the employer in relation to the agreement. I have been briefed by Mr Johnston as to the nature of the negotiations. I'm led to believe that the agreement that's before the Commission is a roll-over of an existing enterprise agreement and delivering wages increases over the life of the proposed document. There is nothing, we believe, controversial in that document, that it was arrived at through the negotiation process. There was adequate participation of employees. The employees were kept informed with the progress of those negotiations and it was subject to a vote of the employees at an appropriate time, of which it was almost unanimous. I believe there was five noes against 40-odd yes with the content and the application of the agreement was satisfactory to their desires.

PN16

Following from there the CEPU has submitted the appropriate statutory declarations to proceed with the certification of the document and as such the CEPU commends the document to the Commission for certification, if the Commission pleases.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Munro. Mr Munro, on 24 April 2002 EMA Consulting, representing the applicant in this matter, foreshadowed the issue of the statutory time limit of 21 days. Mr Ridings has referred to this. The letter that EMA sent to the President of the Commission indicated that the composition of the workforce has not changed since the conducting of the ballot on 15 March 2002. Can you confirm to me from your union's perspective that there were no changes in the composition of the workforce that I would need to have regard to in relation to the request for an extension of time in relation to the lodgement of the application?

PN18

MR MUNRO: The latest figures that I've got that were supplied by Mr Johnston was that there was obviously a vote taken at the Maintenance Department on 14 March of this year of which the vote was 14 for and 1 against. I have no other figures as to indicate whether or not the employment situation in that section of the operations had changed between 14 March and 24 April. It may be that Auspine's representative may be able to give some information on that.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN20

MR MUNRO: If the Commission pleases.

PN21

MR WATSON: Thank you, Senior Deputy President. Look, on behalf of the Australian Manufacturing Workers' Union I support the submissions put forward by both my colleagues previously to now. We also seek that you grant, or exercise the discretion in relation to the granting of the extension of time for the reasons outlined by Mr Ridings and can confirm that there was some logistical and communication difficulties between our organisation during that signatory process and I think no doubt that would have added at least partially to the delays that have given rise to the extension of time.

PN22

I will take on board your question that was put to Mr Munro in relation to whether or not the numbers have changed. In attempting to confirm that it is my belief that the numbers, certainly of the AMWU membership, would not have changed. It would be on the basis that we are generally in contact in some way shape or form by the delegates on site as to either an increase or a decrease in the maintenance, particularly in relation to their union membership, ie we receive new membership cards for new employees as they join the maintenance or we receive resignations in some cases for employees, or at least notification that they have left the establishment.

PN23

I can inform the Commission that that has not occurred since the vote taken to date. On that basis I would believe the numbers haven't changed.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN25

MR WATSON: If there is no more, Senior Deputy President, I will leave my submissions at that.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Martinella.

PN27

MR MARTINELLA: Sir, I'm of the same view. The latest discussions I had of yesterday was that there has been no change in the question raised. Our people are fully aware of the application for certification today. I can't stress enough though if a problem exists where the application may not be certified, I can't give any guarantees to the Commission after that because of other issues that have been arising.

PN28

THE SENIOR DEPUTY PRESIDENT: I take it in every other respect you support the application, Mr Martinella.

PN29

MR MARTINELLA: Yes.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridings, can I firstly deal with this issue of the extension of time?

PN31

MR RIDINGS: Yes, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: Now, you've heard the position of the various union officials here today. Can you confirm to me that the composition of the workforce has not changed for the period that becomes relevant given the late application?

PN33

MR RIDINGS: I believe probably Mr Gomer's in a better position to answer that directly, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: Perhaps you might confer with him and let me know.

PN35

MR RIDINGS: Yes, sir. Sir, I'm instructed that there has been one employee has left the organisation in the intervening period between the vote and the lodging of the agreement and other than that there's no change in the composition of the workforce.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis - - -

PN37

MR RIDINGS: Excuse me, sir, let me clarify that. It is the workforce to be covered by this agreement.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. On that basis I can indicate to the parties that I am prepared to exercise discretion provided for in section 111 of the Act so as to extend the date required for lodgment of the application. Mr Ridings, in accordance with my normal practice, can I take you to the actual agreement?

PN39

MR RIDINGS: Yes, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: And simply ask for you to clarify a number of issues with me and I emphasise again, in accordance with my normal approach, that my questions are not designed to trip up or delay the process of certification but rather to address some issues on this point.

PN41

MR RIDINGS: Yes, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Throughout the document reference is made at the bottom of each page to it being a final EBA draft 2002. I just want to confirm that it is not a draft document, it's the final document, isn't it?

PN43

MR RIDINGS: Yes, sir, that is correct. It is the final document.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you and I should say, particularly to the union officials present, whilst I'm addressing my questions to Mr Ridings, should anyone have a different view or need to add any additional comment, please feel free to leap to your feet.

PN45

MR MARTINELLA: Can I just indicate, sir, that it has been the practice once an agreement is certified with the company that it's then transferred into a handbook which every employee has and I'm sure we will be able to address that when the final one - - -

PN46

MR MUNRO: Yes, if the Commission pleases, I may add that I have a copy of that handbook and nowhere on the pages does the word "draft" appear.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 1.3 and in particular 1.3.2(b) and just ask whether you could explain to me the intention of the parties in that respect?

PN48

MR MUNRO: If the Commission pleases, could we have the number of that clause again, please?

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, it is 1.3.2(b). Perhaps I should say 1.3.2 in its entirety.

PN50

MR RIDINGS: Sir, my instructions are that the intention in clause 1.3.2 is that the pre-simplified awards being the Forest and Building Products Manufacturing and Merchandising General Award and the Metal Industry Award 1984 are to be used as the underpinning awards for this agreement to the extent that there is inconsistency between the provisions of the agreement and the awards. The agreement will apply in accordance with the Act. For those items not dealt with by the agreement the pre-existing pre-simplified awards are the underpinning instruments.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ridings, could I just clarify that? 1.3.2(a) indicates the agreement includes clauses from those two awards in their pre-simplified state. Now, the reason for asking the question fundamentally is just to clarify that the intention of the parties is simply to ensure that the agreement covers the nominated provisions of those pre-simplified awards or that the agreement intended to go back to the simplified awards except insofar as there is inconsistency with this particular agreement and that is what is underpinning my question.

PN52

MR RIDINGS: Yes, and if we look at 1.3.1 there on the face of it appears to be an inconsistency there as well because the simplified awards are in fact the underpinning awards so I withdraw the comment I made before and my understanding from my instructions on the intention of the agreement is that we have got this cascading effect of prevalence of the instruments where the agreement gives way to the - I'm sorry, the agreement overrides the current awards to the extent of an inconsistency but where there are clauses in the pre-simplified awards that have been removed as part of the simplification process the intention of the parties is to observe those clauses. Unfortunately I don't have any instructions about what those clauses might be specifically. At this point I would be interested - - -

PN53

THE SENIOR DEPUTY PRESIDENT: You see what is underpinning my question is simply desire on my part to minimise the possibility that you folks may appear back here by some mystical, magical means probably under the guise of a section 170MD(6) application wherein you have got an argument over ambiguity or uncertainty and I'm simply trying to clarify what was intended.

PN54

MR MARTINELLA: If I can, sir, I might be able to shed some light. This is a follow on that has been, you know, from award simplification that even was part of the last agreement. Because the company operates in regional areas of Australia, sir, there was a number of things that were under simplification were removed. An example was blood donors' leave for instance.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR MARTINELLA: Now, our people in some circumstances because of the urgency may end up travelling 3 hours to give blood in an emergency and that has been the case. So what the parties tried to do was to say: okay we - from the award provision, yes, the simplified award of our industry is the 99 Award. However there was some removal of those issues. The parties agreed to put those issues back into the EBA to assist in that so that there wasn't any problems down the track when it occurred.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. No, that does help me, Mr Martinella, but can I put that in my words and ask you to confirm that that is - that I've got the right understanding? In effect the provisions of clause 1.3 are such that they acknowledge that this agreement contains certain provisions that were drawn from the pre-simplified awards.

PN58

MR MARTINELLA: That is correct.

PN59

THE SENIOR DEPUTY PRESIDENT: An example of that is your example of the blood donors' leave which I note appears at clause 7.11.

PN60

MR MARTINELLA: That is correct.

PN61

THE SENIOR DEPUTY PRESIDENT: The parties intend obviously that the agreement be read alongside the Timber and Allied Industries Award of 1999 and the Metal Engineering and Associated Industries Awards of 1998 insofar as the two are inconsistent but where there is any inconsistency the agreement takes over.

PN62

MR MARTINELLA: That is correct.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you, thank you. Mr Munro, and, Mr Watson, do you concur with that?

PN64

MR MUNRO: Yes, we concur with that understanding.

PN65

MR WATSON: Yes, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: Interpretation, thank you. Mr Ridings, are you happy with that deciphering of the provision?

PN67

MR RIDINGS: Yes, sir, I'm instructed that the employer is happy with that.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, and again I apologise if I've misread it but I think you can see there is some potential for confusion there. Thank you.

PN69

MR RIDINGS: We certainly welcome the assistance of the Commission in these matters.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridings, clause 2.2.7 references a constitution for the enterprise consultative committee and it proposes this constitution will be placed on the Commission's file as part of the certification process. Do I have that document?

PN71

MR RIDINGS: Sir, my instructions are that this is a clause from the previous agreement and in fact did appear on the Commission file in the previous matter but we would be quite happy to give undertakings to supply a copy to the Commission in 7 days.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN73

MR RIDINGS: For the purposes of compliance with that clause.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN75

MR MARTINELLA: Yes, sir, I can only support that. It is ongoing from the last agreement which was supplied to the Commission. I apologise too on behalf of all the parties that we didn't pick that up that the Commission should have been supplied. It is exactly the same constitution, it is just that we didn't supply it with the current agreement.

PN76

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, if Mr Ridings provides me with a copy of it then at least we can attach it to the file in this matter in the event however unlikely it is that the parties need to refer to it. Can I take you, Mr Ridings, to clause 2.8 which is the grievance or dispute grievance procedure?

PN77

MR RIDINGS: Yes, sir.

PN78

THE SENIOR DEPUTY PRESIDENT: And I need to stress there's no right or wrong answer in relation to the questions I'm about to ask, save and except that I get the same answer from the employer as I get from the unions.

PN79

MR RIDINGS: Yes, sir.

PN80

THE SENIOR DEPUTY PRESIDENT: And in particular can I take you to clause 2.8.9?

PN81

MR RIDINGS: Yes, sir.

PN82

THE SENIOR DEPUTY PRESIDENT: And just ask whether you can confirm to me your understanding of the way in which 2.8.9 and 2.8.10 will operate in that regard and I particularly refer to the last sentence in 2.8.10 which indicates that the parties seeking leave to appeal must demonstrate bona fide grounds for the appeal in accordance with the Industrial Relations Standards.

PN83

MR RIDINGS: Yes, sir. The clauses in question follow on from 2.8.8 which actually puts a relatively unusual step in the dispute procedure which is that if the matter has gone as far as the Commission, the parties should indicate whether or not they would accept a binding recommendation. The effect of this is basically to formalise the ability for what would be a section 111AA agreement to accept recommendations by consent and it was a step that the parties put in place in their last agreement due to various unresolved disputes that probably became more protracted than they needed to be and perhaps could have been solved by agreement to in effect private arbitration.

PN84

So 2.8.8 puts that step in place. There is no binding effect on any of the parties to accept that, save that the following step which is 2.8.9 says that if you have made commitment then there is no further appeal or disagreement with the recommendation when it was handed down and that finalises the matter. However in 2.8.9 if one or both of the parties has said that they don't accept binding recommendation, of course they would be quite happy to hear a recommendation and consider it but if they have flagged in advance their intention not to necessarily be bound by it then the matter can be arbitrated by the Commission and that arbitration will be binding unless there are appealable grounds and in 2.8.10 it is an attempt however clumsy the wording might be on my instructions that the leave to appeal will have to satisfy the requirements of the Workplace Relations Act in terms of being an appealable decision. So where it says with industrial - - -

PN85

THE SENIOR DEPUTY PRESIDENT: And that satisfaction would need to be in the eyes of the Commission presumably?

PN86

MR RIDINGS: Yes, sir, exactly.

PN87

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Martinella?

PN88

MR MARTINELLA: Yes. I can top up on some of that, sir. It is a frustrating clause by all the parties. In fact Commissioner Lewin - - -

PN89

THE SENIOR DEPUTY PRESIDENT: It is only frustrating if you need to use it, Mr Martinella.

PN90

MR MARTINELLA: Well, we have in the past and if one was to read the previous agreement there was no avenue for appeal by any of the parties. A decision made or a recommendation made by the Commission was binding on all. That in our view also denied natural justice in relation to some issues. However the outcome to this one was part of the involvement of Commissioner Lewin who got involved with this dispute as the facilitator where we were seeking to have that arrangement and what the parties ultimately came to was the content that we are talking about to allow us to say that if we were before the Commission today it would be in a dispute and we could see where the Commission was coming from.

PN91

We could confer that if you made a recommendation for instance whether that is acceptable or we believe there's another legal process to open that up, so have allowed that to occur. However when you get to 2.8.10 that can only occur on the basis as well on legal point directed by the Commission.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes, as determined by the Commission, thank you.

PN93

MR MARTINELLA: That is correct. So it did, it just was more a facility to allow all the parties to have the right to seek leave to appeal if they were uncomfortable with it that had to give that commitment up front so that we knew where we were coming from.

PN94

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Munro, and, Mr Watson, you are in agreement with that position?

PN95

MR WATSON: Yes, sir.

PN96

MR MUNRO: Yes, sir. Yes, sir, we see it as no more than reserving the right of appeal.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridings, can I take you to clause 4.4.1 and just ask you to confirm to me this is a clause relating to permanent part-time arrangements that given that the statutory declarations indicate there are currently no part-time employees I take it this clause simply establishes the capacity to have those positions in the future?

PN98

MR RIDINGS: Yes, sir, that is correct and I've confirmed this morning with Mr Gomer that there are still currently no part-time employees.

PN99

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN100

MR RIDINGS: Sir, I do have a comment to make if you don't have a question on it which is in relation to subclause (c) of that clause.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes.

PN102

MR RIDINGS: I would like to express the company's position that in effect that wording is somewhat confusing in that it says that the part-time employees will be remunerated on the same basis as full-time permanent employees and the intention of that clause - - -

PN103

THE SENIOR DEPUTY PRESIDENT: It would be a very attractive job, Mr Ridings.

PN104

MR RIDINGS: Yes, particularly if it was part time 2 hours a week. The intention of the parties that refers to on a pro-rata basis in accordance with the percentage of hours worked when compared to a full-time employee but there is a deeper meaning to that clause which is that the employees are classified in the same manner as a full-time employee for the same work.

PN105

THE SENIOR DEPUTY PRESIDENT: Thank you. I guess because of the potential for that clause to be read in different ways it would be useful for me to have the union officials confirm that they share the same understanding of that clause as you do.

PN106

MR RIDINGS: Yes, sir.

PN107

MR MARTINELLA: You have caught me out. I thought we snuck one through. No, that is correct, sir. When it refers to the remuneration it will be on the same basis, full time, mainly if a full-time employee wasn't at work, he would be entitled to sick leave, I don't know.

PN108

MR WATSON: Likewise, Senior Deputy President, you took away the opportunity to make the phone call after this hearing was concluded and the agreement certified to have everybody apply for part-time employment that are members of the AMWU but, no, we concur with that view and we read it in the same terms as the predecessor award would read.

PN109

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Munro?

PN110

MR MUNRO: Yes, if the Commission pleases, I would have to be recommending part-time employment if that was taken at its face value but the CEPU will put on transcript that we take the understanding of 4.4.1(c) to mean that the permanent part-time employees will be remunerated on a pro-rata basis as regards to the hourly rate of pay that in fact that subclause is intended to identify classification positions in relation to part-time employees.

PN111

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Munro. Mr Ridings, that takes me to clause 5.2 and in considering clause 5.2 I can indicate I have had regard to your correspondence to the President of 24 April 2002. I just wonder whether you might expand on the background to that particular issue because the correspondence of 24 April 2002 indicates the parties will seek leave at the time of certification to amend the agreement with respect to clause 5.2. Are you proceeding with that request?

PN112

MR RIDINGS: At this stage we are, sir. Sir, the clause in the agreement before you is exactly the same clause as in the previous agreement and during the life of the previous agreement the company fund, as it was at that time, was abolished and a new fund run by an organisation called Mirsa was put in place to replace that rather than the company running its own fund. As a result of that, some discussions took place between the unions involved and the company in respect of clause 5.2.2 and the conditions being that if the company fund was ended then there had to be a vote of employees covered by the agreement to determine if they all wanted to opt into TISS. Timber Industry Superannuation Scheme, or continue to have a choice of which fund they put their money into rather than the company allocate the compulsory superannuation contributions to.

PN113

The result of that vote - the vote was taken in December last year and the vote was overwhelmingly in favour of the TISS scheme being the fund. However, when the agreement was being renegotiated, for whatever reason, the parties had a position that it should be a roll-over agreement with a pay rise and therefore this clause was left in its original form when it was put out to the employees. So there was - at the time the meetings were held and explanations given to employees, the understanding that was conveyed was that the vote that had been taken on conversion to TISS would be observed and that TISS would be the fund.

PN114

Accordingly, for the sake of convenience and confirming everyone's understanding the preference would be the clause reflects the actual position of the work-force and the parties. Now, I understand you have probably got a question about how that amendment can take place in relation to the fact it is a change in the agreement. What we would submit about that is that it is a change that was clearly in the minds and explained to employees as to being the method of operation at the time the agreement was voted on and that the clause, in its current form, could be somewhat confusing as it does not reflect what has actually already been agreed. Beyond that, I would be interested to see what my friends have to say about this application seeking leave to amend the current application.

PN115

THE SENIOR DEPUTY PRESIDENT: I take it that the actual form of the amendment sought by yourself, Mr Ridings, is as is detailed in the correspondence to the President of 24 April?

PN116

MR RIDINGS: Yes, sir, that is correct.

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN118

MR MARTINELLA: Sir, if it please the Commission, that had been an ongoing issue. We had followed the procedures under the certified agreement right through to December. There was a whole range of things, of course, that needed to occur once that occurred because the company's fund had access shut down so people had to go back through the processes of signing new application forms, making arrangements for money transfers and a whole range of issues. While that was occurring, sir, the problem that was created was the EBA started to be negotiated at the same time.

PN119

Through discussions with the unions and the company, we thought was it really worth, considering that we were over the next say 4 to 6 weeks, apply for a variation of the previous agreement when the new agreement was going in and we concurred that maybe in the best interests of all parties is we meet on certification of this agreement. All employees are fully aware of that change, have been fully consulted, did have the options prior to the vote taking place of their choice and determined, through the life of this agreement, the industry fund was the fund they wanted to be part of.

PN120

I don't know what may happen next time round but at this stage, sir, they have confirmed that that is the case and everything has been done to meet that need. The only outstanding matter of that issue now is the variation to the clause and we just thought it may have been in everybody's better interest to do it through this process than apply for a variation of the old agreement.

PN121

THE SENIOR DEPUTY PRESIDENT: Mr Martinella, I take it that all of the parties are aware of the decision of the Full Commission of 29 April that, for want of a better name for that decision, I will refer to it as the Ives appeal decision. Can I take, what you are effectively saying to me is that the amendment that is being sought in this regard does not constitute a substantive amendment such that I should be at all constrained in relation to the certification of the agreement.

PN122

MR MARTINELLA: The number of employees affected by this change, where full consultation occurred and agreement was reached with them as to the intent, was very minor compared to the whole employee numbers of the company. They already had either the industry fund - - -

PN123

THE SENIOR DEPUTY PRESIDENT: You see, I am not worried about all of the employees covered by the company. I am focused, very particularly, on the employees covered by this agreement. The obligation is on me to look at this agreement rather than other arrangements that might apply.

PN124

MR MARTINELLA: Well, my understanding, sir, is this. Part of the Act where enterprise agreements can simply state issues to superannuation because of the ongoing issues that have been floating around for some years now and what we call the choice of fund issue and all industries have been dealing with that because of the enormous cost associated with employers, if their whole magnitude of superannuation funds - this does not more than address that issue and goes through the processes of ensuring, yes, the employees did have a choice, a very valid choice where the company had made arrangements for a fund that they were supporting to put all of its cards on the table and allow the union exactly the same time and access to those employees. They made an informed decision by postal vote, I think it was in the end. It was not like they stood in front of each other, it was an individual's choice where the majority rules.

PN125

THE SENIOR DEPUTY PRESIDENT: I understand your position, yes.

PN126

MR WATSON: If I may assist, I think the situation is distinguishable for all the reasons outlined quite appropriately and effectively by Mr Martinella and Mr Ridings but I think the obligation, really, in relation to the approval of the employees is best found in the process outlined in 170LR and most notably in 170LR(2) it talks about the requirement, (2)(b), where it talks about before any approval is given the terms of agreement are explained to all the persons. Now, clearly there was an overlap in relation to the terms and conditions of employment of all employees in relation to what change may take place in December in relation to the superannuation.

PN127

The amendment that has been sought is simply to confirm that which has been adequately explained to all employees and we would say adequately and appropriately voted upon in accepting both the change to the superannuation circumstances and eventually the approval of the enterprise agreement. So we would say that the process outlined by Mr Martinella and Mr Ridings has actually assisted the compliance with 170LR of the legislation, approval by a valid majority.

PN128

MR MUNRO: If the Commission pleases, in support of what has been said by Mr Martinella and Mr Ridings, certainly 170LR(2)(b) I think has been given credence by Mr Martinella when he says that the terms of the variation being sought was clearly explained to the employees. In fact, the swinging over from the company to TISS was subject to a vote, a valid majority of employees indicating that was their desire at the time. The indication given in information meetings to the employees that the superannuation clause of the previous EBA would be attended to during this certification and I am also swayed by Mr Martinella and Mr Ridings that that was clearly explained to the employees at the time when the agreement itself was put to the employees for discussions.

PN129

The only thing that I would add and I've taken into account what the Full Bench has said in relation to the Ives decision, I70MD of the Act also gives this Commission, I believe, the capacity to vary the document before the Commission in the manner indicated in the application by the parties in that it is, in fact, for the purpose of removing an ambiguity or uncertainty. The printed document that we see certainly would create some uncertainty or ambiguity if it was picked up and the expectations were that there may have been a company fund available. The application before the Commission clearly shows that the variation sought would remove that ambiguity and I am sure the company would supply amendments or addendums to the documents to that the weight of variation would take full accord.

PN130

THE SENIOR DEPUTY PRESIDENT: You see, Mr Munro, I don't have an application before me, pursuant to section 170MD(6). I have an application which is the provision of the Act that relates to variation of agreements so as to remove ambiguities or uncertainties. I just have an application for certification of this particular agreement. I now have a request from, effectively, the parties that I vary the agreement to that which was put to the employees for their vote.

PN131

MR MUNRO: Yes. I misunderstood then because I just briefly saw the application that has been put to the Commission and I did not look to see what section the application was made under. Being so, certainly the CEPU supports the application as it is made to the Commission to remove that ambiguity on certification.

PN132

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Ridings, can I indicate to you and indeed to the three unions present, there seems to me to be two options here and the first of those is that I would reserve my position on whether the change that has been proposed to clause 5.2 is such that, on the basis of the information I have been given today, I can make that change at the time of certification and consequently certify the agreement. The second option is the agreement, as it is put to me, that is without the proposed amendment to 5.2, might be considered for certification and that there would be a subsequent application pursuant to section 170MD(6) as Mr Munro alluded to.

PN133

Now, I can indicate clearly to you I don't, as yet, have a final view on the initial question of whether the agreement can be certified with the extent of the change being proposed to 5.2 but it would follow, in my view, from the Ives appeal decision that were I to consider that change goes beyond a minor change or issue of clarification, then it would not be appropriate to certify the agreement. I am indicating to you quite clearly I don't have a view on the extent of the changes yet. I will consider the information that has been provided to me today. It might be appropriate, perhaps before we conclude these proceedings, that I allow the parties a few brief minutes to just talk about those two options that I have referred to.

PN134

MR RIDINGS: Yes, sir. I would be very much appreciative of that opportunity. Sir, there is, perhaps before we move off that topic, for the record, I just do want to clarify one of my earlier submissions in respect of that explanation to employees. It is an important one because having - I think there is some potential for some misunderstanding of what I said before. My instructions, at the time the superannuation ballot occurred, on the ballot paper and in explanations to the employees, it was explained that if the agreement was that the conversion would be to the Timber Industry Superannuation Scheme then the agreement would be varied to reflect that.

PN135

I haven't been able to have definite instructions on whether that issue was flagged to the employees at the time this particular agreement, that is before the Commission now, was put out for voting and certification and so I don't want the Commission to construe that I have definitely said that that issue was particularly addressed when the matter was put out this time, although it was certainly addressed at the time the ballot on the voting took place that there would be a variation, but I'm not certain and I haven't got clear instructions as to whether that was dealt with in March when this agreement was put out for a vote.

PN136

THE SENIOR DEPUTY PRESIDENT: That might be an issue that you discuss with the three union officials during the break that I intend to give you.

PN137

MR RIDINGS: Yes, sir. Yes, sir, I just wanted to clarify for the record in case there was a misunderstanding.

PN138

THE SENIOR DEPUTY PRESIDENT: I appreciate that, thank you.

PN139

MR MUNRO: If the Commission pleases, maybe before we do move off that also is that the CEPU, you know, certainly is of the view that the variation is sought. That certification you know is of a minor nature. In fact, it only reinforces the fact that there is only one superannuation fund in operation at this particular time and that is TISS. If the Commission pleases.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Munro, as again I stress, I don't have any fixed view on that and I will take on board - - -

PN141

MR MUNRO: Yes. I tried to influence you before the break.

PN142

THE SENIOR DEPUTY PRESIDENT: I will take on board your erstwhile attempts to influence me, which may or may not be successful, but I will consider those when I have the chance to peruse the transcript. Thank you.

PN143

MR MUNRO: Thank you.

PN144

MR WATSON: Senior Deputy President, there is a further option, we believe, open to the Commission, which is outlined in 170LV, and it is in relation to, if you feel that you have grounds to refuse to certify the agreement you may accept undertakings from one or more of the persons who made the agreement in relation to the operation of the agreement and if satisfied that the undertaking meets the Commission's concern, you can then certify the agreement. Now, we could arguably give you undertakings that an erratum to certify the agreement that is before you to be certified.

PN145

Now, we could give you undertakings that an erratum will be issued, following the canvassing - re-canvassing we would say - of those to be covered by the agreement and that erratum would be the form in which the amendment that was forwarded to the President of the Commission in that form, attached to the agreement and that the parties will undertake that that would be the manner in which the agreement for the duration of the agreement would be implemented, and that would probably allow you to certify the agreement as well.

PN146

THE SENIOR DEPUTY PRESIDENT: Mr Watson, I will give you the opportunity to canvass that option with the parties during the break that I have foreshadowed.

PN147

MR WATSON: We were trying to avoid the break.

PN148

MR RIDINGS: No, no, we need the break.

PN149

MR WATSON: Thank you, sir.

PN150

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN151

MR MARTINELLA: If I can, sir, just indicate from our perspective, a lot of the discussion did occur directly with myself and also our regional organiser of the organisation to get the wording correct and that was in consultation with the delegates as well, so people were aware of those discussions. I mean, people took no interest at the end of the day, they just knew that there was already an agreed position, get it out of the road and get on with it.

PN152

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridings, can I take you to clause 5.3.

PN153

MR RIDINGS: Yes, sir.

PN154

THE SENIOR DEPUTY PRESIDENT: And just ask that you clarify to me the way in which that clause will operate.

PN155

MR RIDINGS: I will need to take some brief instructions on that, sir.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN157

MR RIDINGS: Excuse me, sir, there appears to be a typo on this page. There are two clause 5.3s. Are you referring to 5.3 deductions?

PN158

THE SENIOR DEPUTY PRESIDENT: I'm referring to the deductions clause.

PN159

MR RIDINGS: All right, thank you, sir. Yes, sir, I had already received instructions on this point and my understanding of the operation of that clause is that where the employee wishes to have union fees deducted on an employee's behalf and remitted to the union and where they sign the necessary authorisations, then, the company undertakes to provide that service to the employees and 5.3.2 allows for other types of payroll deduction to occur to meet other financial obligations.

PN160

THE SENIOR DEPUTY PRESIDENT: Thank you. I am getting to the end of my questions, Mr Ridings.

PN161

MR RIDINGS: Yes, sir. Save the best until last.

PN162

THE SENIOR DEPUTY PRESIDENT: Clause 10.3

PN163

MR RIDINGS: Yes, sir.

PN164

THE SENIOR DEPUTY PRESIDENT: Can you simply confirm to me in that regard that that clause does not in any way require that an employee become a member of a union?

PN165

MR RIDINGS: Yes, sir, I can confirm that, in fact, we have had some discussions amongst the parties this morning, not only on my instructions from the employer but, also, discussions with the union delegates here today. This is not a defacto compulsory union clause, the decision of whether or not to join a union is completely up to the employee and the employer takes no part in the making of that decision.

PN166

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you. And finally - - -

PN167

MR MARTINELLA: If I could, sir, I just make a comment on that, because I have been the brunt of some of the outcomes of this over the years. I can assure you, sir, that my friend to my left at any time, without even using this clause, if any of our officials try to force people into our organisation, the company takes the necessary action to address that against the union, so it is definitely not a compulsory union.

PN168

THE SENIOR DEPUTY PRESIDENT: Thank you. And finally, Mr Ridings, appendix 6 is the: Hours Of Work Agreement. Can I take it that this arrangement represents a variation on that which previously applied?

PN169

MR RIDINGS: Sir, this is in fact the same clause that was in the previous agreement and has been on operation for the previous couple of years but, yes, it was a variation on what previously applied before that.

PN170

THE SENIOR DEPUTY PRESIDENT: I see. It is just that in looking at the introductory clause, it talks of new shift arrangements and had there been a variation on those which previously applied, I was going to have to put you to the task of helping me decipher what that appendix 6 actually means, because I'm having some difficulty identifying what it does mean in a number of areas, but if it is the same provision to that which was previously applicable under the agreement that preceded this one, then, I'm happy to let my questions rest.

PN171

MR RIDINGS: Sir, my instructions are that it is exactly the same arrangement that was in the previous agreement.

PN172

THE SENIOR DEPUTY PRESIDENT: Thank you, thank you. Mr Martinella, as the resident expert, are you able to confirm that?

PN173

MR MARTINELLA: Yes, please don't take me into the hours of work, we spent many a month on that, but I confirm that it is the .....

PN174

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you. Well, look, what I propose to do is to allow the parties a few brief minutes to consider what has now been put to me as three options in relation to that superannuation provision and we will check and see how you are going in terms of those discussions. I will adjourn the matter briefly.

PN175

MR RIDINGS: Thank you.

SHORT ADJOURNMENT [10.55am]

RESUMED [11.07am]

PN176

THE SENIOR DEPUTY PRESIDENT: Mr Ridings.

PN177

MR RIDINGS: Yes, thank you, sir. We have now had the opportunity to confer and notice the position of the parties in relation to the amendment that we sought on superannuation that we withdraw our application for leave to amend the agreement and record on the transcript and by subsequent tabling of a document on the Commission's file, how the clause is meant to operate in terms of its interface with the previous ballot. Would you like me to explain that now?

PN178

THE SENIOR DEPUTY PRESIDENT: Mr Ridings, can I indicate to you that because during the break I have raised with the parties an additional question that I had overlooked earlier, relating to clause 1.7.2.

PN179

MR RIDINGS: Yes, sir.

PN180

THE SENIOR DEPUTY PRESIDENT: I would suggest that it might be best if the parties agree on an appropriate set of words in relation to the superannuation clause 5.2, and forward those to me as an agreed document in accordance with your suggestion. And provided those words address the issue that you are talking about, then, we can work off from there.

PN181

MR RIDINGS: Yes, sir, I would be happy with that approach.

PN182

THE SENIOR DEPUTY PRESIDENT: Mr Martinella, are you happy with that approach?

PN183

MR MARTINELLA: Yes, provided - if it is in the Commission's hands and part of the overall package at the end of the day, yes, sir.

PN184

THE SENIOR DEPUTY PRESIDENT: Yes, all right, thank you. Now, during the brief adjournment we had I indicated to the parties I had overlooked one of the questions that I had intended to ask, which was potentially quite fundamental to this application for certification and that relates to clause 1.7.2 and the requirement the company provide, or supply to the relevant union officers every 3 months, a list of all employees covered by this agreement. Again, given the Ives Appeal decision to which we have been referring, I need to hear from the parties as to the extent to which this clause is such that I should still certify the agreement.

PN185

MR RIDINGS: Yes, thank you, sir. Sir, it is our position that the Commission should still certify the agreement and our reason for saying that is that having had regard to the Ives Appeal decision, a couple of differences, we say, emerge between that particular decision and the matter that is before you now. In paragraph 39 of the Ives Appeal decision, the Full Bench said:

PN186

Whether a particular clause in agreement pertains to the relationship, depends upon the form of the clause, its content and its effect and our decision in this case is based on the wording of the clauses before us.

PN187

The Commission will note that the clause before the Full Bench in that matter provided that the names and addresses of employees be given to the union, and that is different from the clause in the agreement before you, which relates only to the names of employees in areas covered by the agreement. Sir, what we say is that that clause is actually ancillary to the operation of clause 10.6, I think it is, which is the one referred to earlier in today's session, which is that:

PN188

The new employees will be introduced to union delegates and be able to make informed choices about whether or not they join unions.

PN189

So I have already been recorded on transcript and my friends have supported that it is not defacto compulsory unionism, so we say on the first leg that clause 1.7.2 in the agreement before you, is an ancillary part of the agreement that supports that other clause. Also, in the Ives Appeal decision, it relates:

PN190

Where a substantive variation to the agreement occurs.

PN191

And that appeal decision was against the decision of the Commission on my reading of it, to strike out the clause. Now, although the Full Bench did also address the process that it might like to see happen where a substantive change is made, clearly in the Ives decision it was a substantive change because the NUW in particular sought to rely on the provisions of those names and addresses, and the parties here - in fact it is a clause that is - for want of better words - is somewhat observed in the breach, in that it is not one that is particularly relied on, or enforced and it is one that in the day-to-day operation of the workplace, we see that it is just in everyone's interest that the delegates would actually know who works there. There is certainly no provision of addresses or other private identifying information that is ever given at large, unless of course people have signed up and want deductions as we explained earlier. So subject to anything my friends might say, I probably haven't got anything to add on that point, but we do see that there is that difference between the Ives decision and this one in the substantiveness of clause 1.7.2.

PN192

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Martinella.

PN193

MR MARTINELLA: Yes, if it please the Commission, I can only support my friend's comments and it does play an integral part of the ongoing relationship between all parties of the agreement. It certainly - that provision of 1.7.2. does not discriminate against any party, whether they are a union member or not. It talks about all employees. It then also enhances the provisions of 10.3 of the agreement. In particular, 10.3.2:

PN194

Where the company will arrange for new and existing employees to be introduced to the appropriate union delegate.

PN195

So therefore they have to pass on a name. You cannot just go up with blank faces. It is in no way, shape or form compulsory unionism as I have indicated earlier into the process and, again, I think for the parties to be able to move forward on a number of issues that do come up, that is a significant part of that, so that people are talking to people and not nameless people, because members and non-members get frustrated with that as well when they don't know people. So it is not an attempt to force anybody into an association.

PN196

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Martinella. Mr Watson, or Mr Munro?

PN197

MR NICHOLLS: Senior Deputy President, I don't think it is necessary for me to add anything that has been put forward by Mr Ridings, or Mr Martinella.

PN198

MR MUNRO: If the Commission pleases, no, it has been very well canvassed by the colleagues at the table. I would like to put our position also in support of what Mr Martinella has said that it is not a union recruitment clause, it is in our opinion, a facilitative clause. It is a facilitative clause in the nature that it enables the parties to the agreement to ensure that all the employees that are covered by this agreement - and in fact that clause does mention employees covered by this agreement, it does not seek any other information from the company other than those employees - as I was saying and in support of what has been said is that it is a method of facilitating, not only the introduction of the new employees, whoever they may be, to the appropriate union delegate, but it also facilitates access and cross-indexing of employees, new employees, old employees in relation to the times and wages records that are maintained by the company.

PN199

It also facilitates the access to those employers of the appropriate classification in records kept by the company also. A new electrician may start, you know, at a nominated classification to the company that attracts a rate of pay. Not only is the name of that new employee supplied to the relevant parties to ensure that not only the compliance with the agreement is being complied with, but also that the correct classification and correct rate of pay and the correct records are in fact being kept. We see no impediment, you know, to the inclusion of 1.7.2 to the certification of the document. If the Commission pleases.

PN200

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Munro. I can indicate to the parties that, again, I confirm that the time frame provided for under section 170LM(2) has been extended. I can indicate that I have considered the agreement, the statutory declaration and, indeed, the quite substantial information that the parties have provided to me today. I am not prepared to certify the agreement today, but I can indicate that I'm satisfied that the agreement is of a duration envisaged by the Act. It contains the necessary dispute resolution process, which the parties have explained to me today. It was an agreement that was clearly reached through a process envisaged by the Act, wherein employees have the opportunity to consider the provisions of the agreement. I propose to reserve my decision in relation to the provisions of the agreement, in particular, to the requirements contained in the agreement that the names of employees be provided to the relevant unions.

PN201

I can indicate to the parties that at this stage I would anticipate that decision would be handed down within the next week. In the event that I consider that the agreement is able to be certified in its current form, I would note that the parties have undertaken to provide me with some clarification on the operation, or agreed operation, of clause 5.2 and, also, that the parties have undertaken to provide me with a copy of the constitution of the Consultative Committee. If that material is provided, if I consider that the agreement is able to be certified, then, I will certify it as of today. In the event that I'm not able to certify the agreement, I would indicate to the parties that they will need to go back again to the employees through the process envisaged by the Act, and should that be the case, then I would invite them to contact my office to advise me of progress in the matter, so that we could ensure that any further delays were minimised.

PN202

MR RIDINGS: Yes, thank you, sir.

PN203

THE SENIOR DEPUTY PRESIDENT: Again, I thank you for your patience and answering my numerous questions.

PN204

MR MUNRO: If the Commission pleases, before we do finish, the CEPU would like to indicate its objection to the non-certification to the agreement today. Our objection is based on the words that are contained in the Full Bench decision in relation to Deputy President Ives decision and they are contained in para 43, where they say that the Full Bench says that:

PN205

They shall quash the union notification decision and refer the applications back to the Deputy President to be dealt with in accordance with this decision.

PN206

And that decision was that Deputy President Ives' refusal to certify on that basis was in fact invalid. We would have hoped that the Commission would have taken some relief from the Full Bench decision and used that to certify the document before it today, but I can do no more than express our disappointment and, if the Commission pleases, I will let it rest at that.

PN207

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Munro, I will note your concerns. As I have indicated I will endeavour to ensure that a decision on the matter is provided to the parties as soon as is practicable. Thank you.

PN208

MR MUNRO: Thank you.

ADJOURNED ACCORDINGLY [11.21am]