AG2002/4005, Transcript of Proceedings [2002] AIRCTrans 3426 (6 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2002/4005

APPLICATION FOR CERTIFICATION
OF AGREEMENT WITH EMPLOYEES (DIVISION 2)

Application under section 170LK of
the Act by Hamled Investments Pty Limited
for certification of the Hamled Pty Limited
Certified Agreement 2002

SYDNEY

11.15 AM, WEDNESDAY, 21 AUGUST 2002

PN1

THE COMMISSIONER: Yes, I'll take appearances, thank you.

PN2

MR P. HAMLED: I am for the company, Commissioner.

PN3

MR P. CAPOBIANCO: I am for the employees.

PN4

THE COMMISSIONER: You're the employee representative?

PN5

MR CAPOBIANCO: That's right.

PN6

THE COMMISSIONER: I've received a statutory declaration?

PN7

MR CAPOBIANCO: Sorry?

PN8

THE COMMISSIONER: I received a statutory declaration that you've signed?

PN9

MR CAPOBIANCO: Yes.

PN10

THE COMMISSIONER: Yes, thank you. Mr Hamled, would you like to address the application for me this morning?

PN11

MR HAMLED: Thank you, Commissioner. We have before you an application for a 170LK agreement with our employees. We are a business in our own right, a fully corporated business. In the applications we've got our ACN and ABN numbers put there. The industry we're in is the Transport Industry. We run a small trucking company within that industry servicing mainly construction and engineering in the Illawarra area.

PN12

The agreement is the first agreement that we've had certified although we have had informal agreements with our employees in the past. As the company has matured we felt it was about time that we had it formally ratified by the Commission. We went through the process, hopefully we've complied with the rules of the Industrial Relations Act and the requirements of getting an agreement up and running. We issued notices to our employees, the first notice was issued on 14 June, 2002 and although the information in that notice does not specifically address the issues or repeat the words that are in the Act we believe by putting that notice in we at least complied with the intent of the Act in terms of giving our employees the opportunity to be represented by a union.

PN13

I think the wording we used was, please note that you may should you choose be represented by an appropriate union during the discussions about the agreement. I acknowledge now that that's probably not explicit enough but certainly in discussions we did have with employees at the time it was made clear to them what their options were and no employee to my knowledge approached any union or organisation of employees to be represented and certainly no organisation of employees approached the company with a request to represent their members or people who may be their members.

PN14

We initially had held meetings at which the managing director discussed with the employees directly what should be in the agreement. This meeting was attended by all employees and it was at that meeting that the employees decided to nominate the person who is with me today, Pasquale Capobianco, to be their spokesperson and to sign the agreement on their behalf. We had a series of informal meetings and discussions after that. There was one employee who has poor English language skills and his son was also employed by the company, was able to translate everything that he couldn't directly understand, on his behalf.

PN15

So he was present whenever the father with the poor English language skills was spoken to, the son was present to be able to explain the - to act as an interpreter for him. Following the information from the Commission regarding the structure and wording of the agreement it was subsequently changed and on 16 July, 2002 a new agreement was drafted and a copy issued to all employees.

PN16

THE COMMISSIONER: With the notice of intention to make the agreement?

PN17

MR HAMLED: A second notice of intention was issued. Since that time there has been no change to that agreement. It was discussed with employees and employees had a copy, each was given a copy of the agreement, and within the statutory time required by the Act they made a decision on, I believe it's 30 July to accept the agreement in its final form.

PN18

In the agreement itself we have an avoidance of industrial disputes clause which is clause 10. That is almost word perfect, drawn direct from the Transport Industry Mixed Enterprises Interim State Award to which this agreement responds. This agreement is really to be seen as an add on, if you like, to that award and anything that is not specified in this agreement goes back to that award for clarification. For example, the pay rates that are shown here are shown for permanent employees. There is no casual rates shown in that schedule in which case then you go back to the award to find out what the loading is for casuals on top of the permanent rate.

PN19

Anything else of that nature that is not specifically mentioned in this agreement you go back to the award and the award is to take precedence. We find in general terms of the agreement that we have a very good relationship with our employees and they've been very helpful in making this company a profitable organisation principally through, I think, flexible working arrangements be they flexibility on time, flexibility on skills and certainly demarcation is not a problem to us, people transfer across from one job to the other quite seamlessly.

PN20

The industry that we service being principally the construction industry is very much a volatile industry in terms of peak work, highs and lows, peaks of work. We've been able to structure an agreement now and hopefully get it certified today that allows for employees to be flexible in their time so that we can enhance permanent employment. The idea is to get away from the casualisation of labour of employing a casual for a week when there's heavy workloads and then having to pay him off the next week because we're short of work. Through banking of hours and through the inclusion of an extra flexi-day a month we're able to use those hours and even annual leave hours to get us through the periods of low workload which assists greatly in us keeping permanent employees level although we only have eight employees. Probably without those flexibility arrangements we would probably only have about four permanents and the rest would be casual on a very ad hoc basis.

PN21

The benefits to the company are immense in terms of training, knowledge and skills and reliability so it's very important to the company to have permanent workforce and try and move away from casualisation. I think to the employees it gives them some more job security that they would not otherwise have in the volatile industry that we operate.

PN22

The date and period of operation will come into effect from the time that it's certified and will remain in force until 30 June, 2004. That's under clause 5 of the agreement. So we're looking really at a two year agreement.

PN23

THE COMMISSIONER: The rates of pay, Mr Hamled, are substantially higher than the rates of pay contained in the State Award?

PN24

MR HAMLED: That's right, they're substantially higher and we're able to pay those rates as a result of the flexibility and the productivity that we get from our workforce. So this agreement facilitates that process. It's substantially above the award and we were paying above the award prior to this anyway but as you can see by the schedule on clause 8 of the agreement it allows for approximately a 13 per cent increase over the two year period to be built in instalments during that two year period.

PN25

There will be no extra claims for the period of this agreement. The employees are happy to abide by the agreement and not put in any extra claims. We understand that it was a unanimous agreement to accept, unanimous on behalf of the employees to accept the agreement. In the very early discussions about the agreement there were different issues that were raised and in particular one that I recall now that employees were asked if, when they had flexi-hours accrued and they had annual leave accrued could they take their flexi-hours prior to their annual leave? So we've built that into the agreement at clause 7 subclause (l) where we said that:

PN26

Employees may request to take a flexi-day at any time for any reason.

PN27

Sorry, I've misled you there. Taking of annual leave clause (n) where:

PN28

In the absence of an agreement the company may direct employees to take annual leave providing that any employee that has accrued flexi-days may elect to take these instead.

PN29

It was a concern of, I think, only one employee that he would rather keep his annual leave intact where possible. We also have, which we feel is reasonably innovative, we also have written in there that we are willing to go into debit on flexi-hours, we're willing to pay workers that in advance. We can only do this because of a good relationship with our employees and I trust that we have that. So if there is a shortage of work we will pay them flexi-days in advance and they will accrue them, pay that back at a later date.

PN30

Essentially the whole crux of this agreement is simply to do that, it's to guarantee employment for the employees and also in turn it guarantees that we have that skill base and that labour force ready and waiting whenever our customers call upon it. I think that's about all, Commissioner.

PN31

THE COMMISSIONER: Thank you, Mr Hamled. Mr Capobianco, there are a couple of questions I would ask you but what would you like to tell me? You were voted as the employee rep to represent the eight employees? You were nominated.

PN32

MR CAPOBIANCO: I was nominated, yes, that's right. Well, we're very happy with the agreement and all the flexibility between the company and the workers. We have tried that for the past couple of years and it seemed to work fine. Like, flexibility if you do accrue that time ..... the company they can help you out different way if you need cash or things like that. Again, it maintain us to keep our job without being retrenched which has happened in the past, it went down really bad, like no work and things like that, and the company just kept us. In some cases somebody even got paid accrued, like, advanced, what Peter was just talking about it, give us the time and then we pay them back as the time went on.

PN33

THE COMMISSIONER: The agreement that was put to the employees, it was a valid majority that voted to approve the agreement?

PN34

MR CAPOBIANCO: They all agreed.

PN35

THE COMMISSIONER: So the eight employees voted to accept the agreement?

PN36

MR CAPOBIANCO: Yes.

PN37

THE COMMISSIONER: The notice of intent to make the agreement that was forwarded to employees, were employees fully aware that if they were a member of an employee organisation that they could contact that organisation to represent them in discussions in relation to the agreement?

PN38

MR CAPOBIANCO: Yes.

PN39

THE COMMISSIONER: So the eight employees were fully aware of that?

PN40

MR CAPOBIANCO: They were fully aware, yes.

PN41

THE COMMISSIONER: Did any of them choose to do that?

PN42

MR CAPOBIANCO: What to agree?

PN43

THE COMMISSIONER: No, no one sought to ask an employee organisation to represent them?

PN44

MR CAPOBIANCO: Sorry, I didn't quite understand that.

PN45

THE COMMISSIONER: You may not know the question but none of the eight employees asked an employee organisation to represent them in the discussions? Do you know whether anybody did?

PN46

MR CAPOBIANCO: No.

PN47

THE COMMISSIONER: No one did?

PN48

MR CAPOBIANCO: No one did.

PN49

THE COMMISSIONER: There was no coercion to make the agreement at all? Employees didn't feel that they had to approve the agreement?

PN50

MR CAPOBIANCO: No, they didn't feel that. They just asked for me to do it.

PN51

THE COMMISSIONER: So, your submission is that they were happy with the agreement?

PN52

MR CAPOBIANCO: They were happy with the agreement, yes.

PN53

THE COMMISSIONER: Is there anything else you'd like to put to me?

PN54

MR CAPOBIANCO: No, what I can say we are pretty happy with the agreement. It did seem a bit harsh at the beginning when they first sought of introduced that but then our understanding when we come to understand the whole thing and as we tried it for about the past three years it's really, yes, it's worked out fine. Our job security is the most important thing of most of the workers and we feel pretty secure now, yes.

PN55

THE COMMISSIONER: So employees are happy that the agreement be approved by this Commission?

PN56

MR CAPOBIANCO: Yes.

PN57

THE COMMISSIONER: Thank you, Mr Capobianco, for your submissions. Mr Hamled, thank you again for your submissions.

PN58

This is an application by Hamled Investments Pty Limited for the certification of an agreement made under section 170LK of the Act. The agreement is to be known as the Hamled Pty Limited Employees Certified Agreement 2002. On the basis of the statutory declarations and the submissions made to me this morning by Mr Hamled and Mr Capobianco, as an employee representative, I'm satisfied that the statutory requirements of the Act have been met.

PN59

The agreement has a nominal expiry date of 30 June, 2004. The agreement satisfies the requirements in the no disadvantage test in that the agreement does not on balance result in a reduction in the overall terms and conditions of employment under the relevant award which is the Transport Industry Mixed Enterprise Interim State Award. The application is granted with effect from today and formal certification will issue in due course, gentlemen. Thank you for your attendance and the Commission is adjourned.

ADJOURNED INDEFINITELY [11.32am]