AG2002/269, Transcript of Proceedings [2002] AIRCTrans 3909 (2 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N WT05405

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER O'CONNOR

AG2002/269
AG2002/270

APPLICATION FOR DETERMINATION
OF DESIGNATED AWARD

Application under section 170XF of the Act
by KT Pipeline Services Pty Ltd for determination
of designated award re certification of the
KT Pipeline Services Vic Hub Gas Pipeline Project
170LK Agreement 2002

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by KT Pipeline Services Pty Ltd re certification
of the KT Pipeline Services Vic Hub Gas Pipeline
Project 170LK Agreement 2002

PERTH

11.03 AM, WEDNESDAY, 18 SEPTEMBER 2002

PN1

MR T.O. ADAMS: I appear on behalf of KT Pipeline Services.

PN2

THE COMMISSIONER: Thanks. Yes, Mr Adams?

PN3

MR ADAMS: Thank you Commissioner, there are two applications before the Commission this morning. The first one I suppose and to deal with them logically, is the application for the designation of an appropriate award, for the purposes of the agreement and that is application AG2002/269. If the Commission pleases, the award which the applicant considers ought to be an appropriate award, for designation purposes, is the National Metal and Engineering On Site Construction Award 2002.

PN4

Now, that award was subject to a section 51 review recently and it was reissued in July this year. But the award that is recommended by the applicant, if the Commission pleases, is the same award which was designated by the Commission as presently constituted in a matter which concerned the certification of an LK agreement for the same company to work in the same area, on essentially the same project earlier this year and that was the subject to application for agreement number 2002/37.

PN5

The award, which is sought to be designated pursuant to application number 269, is also the award which has been designated for the purposes of a number of other relevant enterprise agreements and there are at least two others that come to mind that ought to be brought to the Commission's attention and they are the Kellogg Brown and Root Bass Strait (Esso) On Shore, On Shore, Off Shore Facilities Agreement 2002 and also the Maintenance Resource Engineering Proprietary Limited Shell Geelong Refinery Enterprise Agreement 2002/2005.

PN6

This award is sought to be designated, if the Commission pleases, as an award for the purpose of measuring the proposed LK agreement for a non disadvantage test. For those reasons and unless the Commission has any questions that is all that I propose to say in relation to the award designation application.

PN7

THE COMMISSIONER: The National Metals and Engineering On Site Construction Award, does that have in it those classifications that you have in the certified agreement, such as excavator operators, trenching, rear and bottom dump prime movers, articulated etcetera?

PN8

MR ADAMS: Not all of them Commissioner, no it doesn't, but it does carry the relevant classification special class welders and some of the metal and electrical trades, which are the predominant people that will be engaged on the job. There are a small number of classifications where they are perhaps not relevantly covered by the award but in the context of the salaries that are proposed to be paid in the agreement, when compared to the award that we seek to have designated, even if those people who are going to be doing that work, were classified as other than that, the agreement would handsomely cover the wage rates anyway.

PN9

THE COMMISSIONER: Yes. I don't know whether you are familiar with a case, the CFMEU v The Australian Industrial Relations Commission, that is a Gordonstone matter, in the Federal Court, where a similar situation as this arose, where there was a distinct geographical part of the business that the workers who made the LK and they distinguished an LK from a Greenfields, were not currently employed in that geographical part of the business, which the agreement was to cover and subsequently the company employed up to - they made the agreement with about a dozen men, but then subsequently employed up to 150-odd persons.

PN10

And the court found that that was not a valid majority of employees who were employed at the site that the agreement was intended to cover. Now, I don't know whether you are going to build this pipeline with five men, or whether you are going, when you get to Victoria, employ another 500 or something, I don't know how many it takes to build a pipeline these days, but not too many I don't suppose, but you might fall foul of that situation.

PN11

MR ADAMS: Well, I am not familiar, if the Commission pleases, with the particular case to which you referred. The reality is that - - -

PN12

THE COMMISSIONER: The men who voted, eventually did go to work on the thing, but they weren't employed at the time of the making of the agreement at the part of the business that geographically it was intended to cover.

PN13

MR ADAMS: Yes, I understand the point that the Commission is making, the intention of KT Pipeline Services is that there are five people employed by the company now all of whom will be engaged on the job and at least another 10 to 12 people will be engaged to assist in the construction activities. Those people, I hasten to add, are people who previously worked for the company on the former pipeline project earlier this year and I have no doubt, although it is mere conjecture, I agree, but I have no doubt that the people who are going to work with the company on this second pipeline installation project, will not have any difficulty with the conditions that are set out in the proposed agreement.

PN14

But the reality is that five people are on the payroll right now, they are the longstanding, permanent employees of the business and they were the people who voted on the agreement. I am not sure what the status - - -

PN15

THE COMMISSIONER: The Gordonstone one was similar that the five people, or the dozen people who voted were supervisors and what have you, you know.

PN16

MR ADAMS: Well these people aren't supervisors Commissioner, they are worker bees.

PN17

THE COMMISSIONER: I am just signalling that if you get over to Victoria and a union pops up and says: well how have you come to make this agreement, they may fall back on that particular decision, full well the people who are likely to pop up know about it.

PN18

MR ADAMS: They may well do, Commissioner the company was previously engaged on activities in the Gippsland area early this year, the union was actually invited to come and speak with the workers. There was at least one meeting that I'm aware of and there was another scheduled which was cancelled because nobody was interested in going and I think the union official had other engagements. But the company doesn't have any - even though it is an LK agreement, they have been allowed onto the site to have discussions with the workers beforehand and I'm sure that that practice would, in the ordinary course of events, continue. They have nothing to hide, the rates that are being paid are essentially mandated, if you like, by the ultimate client.

PN19

THE COMMISSIONER: Yes, that is right. All right. I just thought I would raise that because it - - -

PN20

MR ADAMS: It could be an issue.

PN21

THE COMMISSIONER: Well it doesn't sound like it might be, but if it came up it could be, yes.

PN22

MR ADAMS: Commissioner just if I can address you briefly on the agreement itself. The requirements of 170LT, I'm sure you are aware of, in terms of the no disadvantage test, there are some wage rates predicted and which are appended at the back of the agreement, in terms of the hours that are intended to be worked. But I suppose the important consideration in the context of the no disadvantage test, is that the weekly rate for 38 hours across all of those classifications, is in the order of 75 to 110 per cent of the wage rates for the similar classifications expressed in the designated award.

PN23

These are far and away, in most cases, just under double the wage rates prescribed in the award, on top of which site allowances and overtime is paid, so the cycle earnings for people engaged on this job, which will only be run for two or three weeks, I hasten to add, far and away exceed any other benefits that might otherwise be available in the award. Five out of five people voted to accept the agreement Commissioner. The terms of the agreement were explained to these workers at a meeting that was convened by the Manager and then subsequently, there were no representations made to the company by a union or any other appropriate organisation in the context of issues about the proposed agreement.

PN24

It is intended that the agreement expire on 28 February next year. It is very much a short term project agreement and the dispute settling procedure, or grievance clause is set out at section 26 of the proposed agreement. So, if the Commission pleases, in our respectful submission, the agreement, in the context of the no disadvantage test and other certification requirements are handsomely met. We would request that the Commission certify the agreement from today and unless you have any questions Commissioner I have nothing further which to say in relation to that aspect of the application.

PN25

THE COMMISSIONER: Okay, thanks for that. Letter dated 3 September 2002, Terry Adams on behalf of KT Pipeline Services Proprietary Limited, sought for the purposes of part VIE of the Workplace Relations Act, a determination of the appropriate award to be used for the purposes of deciding whether the agreement passes the no disadvantage test. Upon hearing Mr Adams, from AMMA, on behalf of KT Pipeline Services, I determine that pursuant to section 170XF of the Act that the National Metal and Engineering On Site Construction Award 2002, is a most appropriate award.

PN26

This is application for the certification of the agreement pursuant to section 170LK of the Workplace Relations Act 1996, by KT Pipeline Services Proprietary Limited and its employees. The agreement is between a constitutional corporation and its employees who will be covered by the agreement. The agreement covers part of a single business, awards applied being the National Metal and Engineering On Site Construction Award 2002 for the no disadvantage test.

PN27

The agreement in accordance with section 170XA does not disadvantage employees in relation to the wages and conditions. The agreement has provisions for settling industrial disputes. The agreement is for a fixed term and the agreement has been genuinely approved by a valid majority of employees who will be subject to it. Employees were provided with a copy of the agreement at least 14 days prior to ballot and the application for certification was lodged within 21 days of approval by the valid majority. All the requirements necessary for certification have been met as a consequence I will certify the agreement to be operative from 18 September 2002 and remain in force until 28 February 2003. The matter stands adjourned. Thank you.

ADJOURNED INDEFINITELY [11.15am]