AG2002/5143, Transcript of Proceedings [2002] AIRCTrans 4089 (15 October 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT229

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

AG2002/5143

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170MD(2) of the Act
by Emailroom Pty Limited to vary the Emailroom
Business Enterprise Agreement 2000 re pay
arrangements

MELBOURNE

11.05 AM, WEDNESDAY, 2 OCTOBER 2002

PN1

MR S. GRAPSAS: I appear on behalf of Decipha Pty Limited.

PN2

MR B. BAULK: I appear on behalf of the CEPU. Commissioner, if I may speak on behalf of my colleague, we have had some discussion. We would like to, if we could, just go into a quick conference to seek your guidance on a particular issue in relation to this matter. Rather than deal with that particular issue on the record, it would be desirable I think for both myself and the applicant really for some sort of quick discussion, if we may.

PN3

THE COMMISSIONER: Fine. Do you agree with that, Mr Grapsas?

PN4

MR GRAPSAS: Commissioner, yes, I do.

PN5

THE COMMISSIONER: Thank you. All right, the Commission will go off transcript for a minute. Thanks.

OFF THE RECORD

PN6

THE COMMISSIONER: Mr Grapsas.

PN7

MR GRAPSAS: If the Commission pleases. Commissioner, we have sought an agreement and my apologies, if fact, I have sought it under the wrong section of the Act, but further to previous discussions as indicated, the agreement was ratified by yourself on 23 May of this year. There are still no employees covered by the agreement and it is the intention of the company that those employees move from contracts when they expire and become Decipha contracts, rather than Australia Post contracts, the employees will be offered the opportunity to join our company and if they decide not to do that, in fact, they will remain with Australia Post.

PN8

What we are saying is that as part of that choice process, that they are currently being paid fortnightly and I think there was no debate that when this agreement was negotiated by someone at Pickfords, there was no understanding of what the current arrangements were at Australia Post. There's no debate is was a mistake that was made and, hence, our decision to try and modify it. I have had previous discussions with Mr Eris Keene, the organiser, who is part of the negotiation of the agreement and it is my understanding in discussions with Mr Baulk this morning that there is no major objections from the union, because all we are trying to do is maintain the status quo that when employees come across, that in fact they come across on the same terms and conditions, on fortnightly pay and obviously that any new employees who we would hire would also be hired on the basis of being paid fortnightly.

PN9

Again, just repeating the fact that we saw it as part of the negotiation process. We seek to correct it and whilst I make no apologies - there has been no major discussion with the employees on the matter which one would normally apply to an agreement that has been ratified, the fact we don't have employees, (a), and (b) that any employee that will come across to the agreement is currently being paid fortnightly and we would just like to maintain the status quo. If the Commission pleases.

PN10

THE COMMISSIONER: Mr Grapsas, so the Commission is clear, there are two parties bound by the agreement currently. One is the CEPU.

PN11

MR GRAPSAS: Yes, sir.

PN12

THE COMMISSIONER: And the other one is Decipha Information Logistics.

PN13

MR GRAPSAS: Yes, sir.

PN14

THE COMMISSIONER: And Decipha Information Logistics is a combination of certain aspects of Australia Post and Pickfords.

PN15

MR GRAPSAS: It is a joint venture, Commissioner, that was established in May of this year between Australia Post and Pickfords, 50 per cent ownership with both parties.

PN16

THE COMMISSIONER: Right, so currently there are no employees that would be covered by the certified agreement at this point?

PN17

MR GRAPSAS: Correct, Commissioner.

PN18

THE COMMISSIONER: Any potential employee that may come from existing Australia Post operations currently is paid fortnightly?

PN19

MR GRAPSAS: That is correct, Commissioner.

PN20

THE COMMISSIONER: And you have stated that there was some lack of knowledge, if you like, in putting together the agreement in relation to the fortnightly pay and one assumes weekly. What you now intend to do is to vary the agreement, both parties intend to vary the agreement, given that there are no employees at this stage, to remove any ambiguity in terms of the pay period?

PN21

MR GRAPSAS: Yes, Commissioner.

PN22

THE COMMISSIONER: The intent was that it be fortnightly.

PN23

MR GRAPSAS: That is correct, Commissioner, that is my understanding. I wasn't part of the negotiation process, but my understanding in talking to people, the management of Decipha who were, believe it was an oversight, but in fact when it was negotiated, the people concerned were not aware or didn't find out what the pay arrangements were of those Australia Post employees because a lot of Pickfords employees are still on weekly pay and that was an oversight and we're just trying to correct that, as you said, and remove that ambiguity, Commissioner.

PN24

THE COMMISSIONER: Thank you, Mr Grapsas.

PN25

MR GRAPSAS: If the Commission pleases.

PN26

THE COMMISSIONER: Mr Baulk.

PN27

MR BAULK: Thank you, Commissioner. Can I say that we would concur with the submissions made by Mr Grapsas in relation to this variation. We know that it will be made under section 170MD. Can I just pick it up on the point you were raising just before, Commissioner? There still is, I suppose, even though this is a private sector company, still is some interface in relation to some activities of Australia Post, that is the Australia Post superannuation scheme of which the existing employees of Australia Post are members of and the agreement reached between the parties when negotiations were proceeding in respect to the greenfields agreement or ancillary matters in relation to the greenfields agreement was that they would remain members of the Australia Post superannuation scheme. There is a fairly rigorous process and checks on compliance within that scheme.

PN28

Members of Australia Post are paid fortnightly. The transmission of moneys taken from the employee's salary for superannuation is transmitted on a fortnightly basis. I suppose when you look at that in respect to this particular agreement, it would be desirable that the same process continues, so I just raise that as an example about the interface that still does occur with some activities of Australia Post or in connection with Australia Post and it is being raised under 170MD and given that you've raised in respect to removing ambiguity in respect to the existing agreement, we would concur with the submissions made and ask that the variation proceed. Thank you very much, Commissioner.

PN29

THE COMMISSIONER: Thanks, Mr Baulk, and I suppose superannuation is only one issue. There's a whole range of issues that currently would be the employees or potential employees would be able to calculate on a fortnightly basis, but if that was weekly, it would create a large degree of ambiguity and, in fact, uncertainty in the minds of those potential employees.

PN30

MR BAULK: That is correct, Commissioner.

PN31

THE COMMISSIONER: Yes, thank you. All right, thanks for that. The Commission notes that the application initially was made under section 113. The Commission is prepared to accept that the variation to the agreement should have been made under section 170MD and, accordingly, is prepared to deal with it under that provision. The Commission is satisfied based on the material before it that it is appropriate that the agreement be varied by the parties under section 170MD(6)(a) for the purposes of removing ambiguity and uncertainty. What the Commission would ask is that the parties provide a clean copy of the agreement with the variation to the Commission and if that can be done within seven days. The variation shall take effect from the date in which the agreement was certified. Mr Grapsas, do you have that date?

PN32

MR GRAPSAS: If the Commission pleases, 23 May of this year, Commissioner.

PN33

THE COMMISSIONER: The variation shall take effect from 23 May 2002 and the agreement shall remain in force for - how long was it? Two years, I think.

PN34

MR GRAPSAS: Commissioner, two years, until 29 July 2004.

PN35

THE COMMISSIONER: Thank you. That is when the variation shall take effect, too. The Commission thanks the parties and stands adjourned.

ADJOURNED INDEFINITELY [11.19am]