AG2001/7352, Transcript of Proceedings [2002] AIRCTrans 380 (11 February 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2001/7352

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by United Maintenance Pty Ltd and Another
re application for certification of United KG
Pty Ltd Whyalla Alliance Agreement 2001

ADELAIDE

11.33 AM, THURSDAY, 24 JANUARY 2002

PN1

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

PN2

MR B. GRANTHAM: Sir, I appear on behalf of United KG and with me today I have MR CLIVE ROSS and MR MICK MERCER, two management representatives of the company who Mr Mercer was involved in the entire negotiating process with employee reps etcetera and Mr Clive Ross for the company after that process had begun but was there at the conclusion of negotiations.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MR T. MURRAY: I represent the AMWU in this matter.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Murray.

PN6

MR GRANTHAM: Sir, the application before you today seeks to have a renegotiated agreement certified, an agreement covering the company's work force at one steel's operation in Whyalla. The agreement is the second - sorry, it is the third agreement for the site, the very first agreement was a Greenfields Agreement involving this union and at the time the AWU on the renewal of the Greenfields Agreement being the pre-existing agreement, the AMWU was the sole union party. That brings us to the current new agreement before you today.

PN7

A preliminary matter I must attend to, sir, is that the agreement is - or the lodgement of the agreement was some three days out of prescribed 21 day time frame, we seek from you leave to grant an extension of time and all I can say, sir, is that plead the tyranny of distance with the various parties involved and also the different officers involved.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, continue, Mr Grantham.

PN9

MR GRANTHAM: Sir. The agreement negotiations began in earnest on 31 July of last year some 3 to 4 months prior to the expiry of the nominal life of the existing agreement. Those meetings ultimately numbered some 11 or 12 meetings between company representatives and employee representatives duly elected by the work-force. There were three employee representatives involved, specifically bargaining agreement negotiating committee representatives, from time to time a fourth representative was involved in the negotiations as was from time to time Mr Tim Murray and indeed myself from time to time.

PN10

Effectively it was towards the end of October that a final agreement was reached in principle with a vote ultimately occurring on 19 November where the work-force - the majority vote agreed to accept the negotiated position of the committee. The agreement represents a number of changes to the existing agreement, perhaps the often focussed change is the wage increase which allows for increases during the life of the agreement. For the first time the company has agreed to offer a degree of income protection to employees for personal illness or injury outside of work and hence outside of any workers' compensation jurisdiction.

PN11

The agreement, sir, as we believe the statutory declarations are a testament to both meet the requirements of Division 4, part 6(b) of the Act nor offend other provisions within Division 4 specifically in terms of discrimination, etcetera. The agreement has a nominal life until 7 October 2004. The agreement actually does say that it comes into operation on 7 October 2001. I'm aware that the Commission has no powers to actually make the agreement retrospective but effectively what the company has done is it has actually effected the first round of wage increases.

PN12

That has already been effected and paid to employees prior to Christmas, shortly prior to Christmas, and back paid to 7 October in keeping with the spirit of the agreement in terms of the operative date for particularly the wage increases. So I don't wish to regurgitate unnecessarily the facts contained within the statutory declaration. I comment the document to you for certification. I'm happy to respond to any questions that you may have and as I said I comment the document to you for your certification.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Grantham. Look, I have a couple of brief questions but it might be best if I hear from Mr Murray first of all. Mr Murray?

PN14

MR MURRAY: Thank you, sir. Sir, the agreement itself was negotiated by a single bargaining unit and that occurred in consultation, full consultation with the work-force. I attended several meetings of the single bargaining unit myself but the elected work-force representatives were present at all of the meetings. Our members had a copy of the agreement for the 14 day period as required under the Act and a clear majority of employees have voted in favour of accepting the terms and conditions of the agreement at the conclusion of that 14 day period.

PN15

I believe our stat dec meets the requirements of the Act and as such, sir, I would indicate that I concur with the previous submissions along with the request for an extension of time on the 20 day lodgement period. Other than, sir, if you have got any further questions, I would seek the Commission's certification of the agreement.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Murray. Mr Grantham. can I preface my couple of very brief questions by indicating they are not intending to trip up the certification process at all but rather just to seek clarification at this stage.

PN17

MR GRANTHAM: Sorry, sir, I actually didn't quite catch the very beginning of what you said there. I apologise for that.

PN18

THE SENIOR DEPUTY PRESIDENT: My questions are not intended to trip up or inhibit the process - - -

PN19

MR GRANTHAM: I understand, sir.

PN20

THE SENIOR DEPUTY PRESIDENT: - - - of the agreement but rather just to clarify a couple of issues.

PN21

MR GRANTHAM: Certainly.

PN22

THE SENIOR DEPUTY PRESIDENT: Can I firstly take you to the statutory declaration and I note that the number of casual employees varies on a daily basis.

PN23

MR GRANTHAM: That is my understanding.

PN24

THE SENIOR DEPUTY PRESIDENT: Can I ask then how those casual employees were involved in the consultation process that led to the formulation of the agreement and how and if they were given an opportunity to vote on the agreement?

PN25

MR GRANTHAM: Sir, the company uses, if you like, two different groups of casuals. The first group is directly employed by the company, those casuals were involved in the process. There were included in the vote, they were also included in the dissemination of material and allowed access to the dissemination of material which was extensive minutes, etcetera of each meeting, provided a copy of the draft for voting. The group, if you like, that was excluded was a minor group in number and were those that would be engaged directly through a labour hire company.

PN26

I dare say the basis for that approach was that at the end of the day the agreement would not necessarily - would not be legally binding upon their employer or themselves but in any event, the custom and practice at the work place is that casual labour used by a labour hire company, their rates of pay are a mirror of the agreement rates that apply to the direct work-force of United Maintenance.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 25 of the agreement and ask you to simply clarify for me that there is nothing in that clause that the company understands would be in breach of the Freedom of Association provisions such that employees would be expected to join the union?

PN28

MR GRANTHAM: My direct knowledge, sir, is that the company's approach to union membership is one of total freedom of association. It is merely to make them aware that union membership by the company is acceptable and that there are payroll deductions for union dues if the employee so chooses to join the union and that is really the extent of it. The company does not in any way shape or form use any means to enforce or coerce employees to join the union, nor indeed to withdraw from the union.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I now take you to clause 5.7 which occurs at page - or pages 8 and 9, in particular on page 9. This outlines the "Dispute Resolution Process" and provides at paragraph (v) for reference of any continuing dispute to the union. Can I ask whether in the event that the employee was not a member of a union, does that employee have the opportunity to access alternative representation should that be required?

PN30

MR GRANTHAM: In (v) as I understand it, sir, is that it is clearly saying the matter may be referred to the union so it is optional.

PN31

THE SENIOR DEPUTY PRESIDENT: So that in the event that an employee is not a member of a union, does the employee have the opportunity to access alternative representation?

PN32

MR GRANTHAM: I will actually seek an instruction on that, sir. I've been assured by the two management representatives here today that if a employee so choose that they are to utilise alternative representation other than the union that the company would allow that to occur.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Grantham. Mr Murray, did my questions occasion you the need to clarify any issues with me?

PN34

MR MURRAY: No, sir. As far as clause 25 is concerned, we don't use thumb screws. There's no requirement that people have to join the union. There's no coercion, sir. As I say, the agreement basically specifies the way things are on the site.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you. So far as the application that was filed in the Commission out of the time frame provided for under the Act, I'm prepared to agree to utilise the discretion provided for within the Act to extend that time frame. I considered the agreement and the statutory declarations that accompanied it. It is clear to me that the agreement was reached through a processing envisaged by the Act. It is also clear that the agreement meets the no disadvantage test. It contains the necessary dispute resolution procedure and is of a duration envisaged by the Act.

PN36

I am prepared to certify the agreement and do so with effect as of today. The certificate will be prepared and forwarded to the parties over the next few days. I remains for me to congratulate the parties on reaching this agreement and to express my best wish that the agreement serves to advantage both the company and its employees. I adjourn the matter on this basis.

ADJOURNED ACCORDINGLY [11.50am]