AG2002/4662, Transcript of Proceedings [2002] AIRCTrans 4369 (8 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT490
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

AG2002/4662

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by CSR Monier Wunderlich for
certification of the CSR Monier
Wunderlich Maintenance Employees
Vermont Enterprise Agreement 2002

MELBOURNE

10.13 AM, MONDAY, 21 OCTOBER 2002

PN1

MR D. McINNES: I appear for CSR Limited. With me is MR M. DORROUGH, the Operations Manager of the Vermont plant, and employee representatives, MR J. TILLI, and MR C. MCDONALD.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McInnes?

PN3

MR McINNES: Your Honour, the application seeks certification under section 170LK agreement applying to the company's eight maintenance employees employed at the Vermont tile manufacturing plant. Incidentally, your Honour, it replaces a previous section 170LK agreement applying to the same employees which expired at the end of June this year. Your Honour, we rely on the statutory declaration as supplied by the Operations Manager, Mr Dorrough, and the two employee representatives, Mr Tilli and Mr McDonald. And we say that the requirements for certification under the Act and the regulations have been met.

PN4

Your Honour, specifically, all employees were given the required notice of intention to make agreement, on or before 6 September this year. I have a copy of that notice.

EXHIBIT #M1 MEMORANDUM TO ALL MAINTENANCE EMPLOYEES DATED 2/9/2002

PN5

MR McINNES: Thank you, your Honour. Your Honour, at the same time that the notice of intention was given to employees, all employees were also given a copy of the proposed agreement. Your Honour, there was considerable consultation with respect to the negotiation and the terms of the agreement. And, in fact, a meeting was held with all employees on 20 September, at which the terms were explained, and an opportunity was given for employees to ask any questions they may have had regarding the agreement. On the same date employees voted unanimously to accept the agreement.

PN6

Your Honour, the agreement is to be read in conjunction with the Metal, Engineering and Associated Industries Award. And there are no clauses in this agreement which are inferior to that award. In our submission it hence passes the no disadvantage test. Your Honour, it contains a grievance procedure at clause 20. And it is to expire on 30 June 2005, which is in less than three years time. On the basis of those submissions, and the statutory declarations previously filed, your Honour, we ask the Commission to certify the agreement.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr McInnes, attached to the agreement is a document which says:

PN8

To all maintenance employees, re: CSR Monier Wunderlich Vermont. Further to the matters agreed in the CSR Monier Wunderlich Maintenance Employees Vermont Enterprise Agreement 2000, I confirm the following matters are also agreed.

PN9

How did - what is this about, and how did it arise?

PN10

MR McINNES: I am sorry, your Honour. Yes. That is a matter which is outside the agreement. I think, in effect, it was inadvertently attached to the papers that went in. I didn't intend to - - -

PN11

THE SENIOR DEPUTY PRESIDENT: So that shouldn't be part of the agreement?

PN12

MR McINNES: No, your Honour. I didn't intend to hand it up, as a document which was - records a further matter, which we didn't intend to be a part of the agreement, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Right. So the agreement that is before me, without that last page, was the agreement that was voted on by the employees?

PN14

MR McINNES: Yes. Yes, your Honour. And at the same time the employees had a copy of that last page. But the agreement which is before you for certification is the document, without that last page.

PN15

THE SENIOR DEPUTY PRESIDENT: Well how - what did the employees understand was the status of this last page?

PN16

MR McINNES: That it was to be a - my understanding, your Honour, is that it was to be a matter that was to be recorded by an exchange of letters with the employees as to how their meal breaks, or their - - -

PN17

MR McDONALD: Meal breaks agreement - - -

PN18

MR McINNES: Yes. Would be - would be addressed, your Honour. It was something - it was an over-award, or something outside the agreement, your Honour, which was just recorded in writing by the company.

PN19

THE SENIOR DEPUTY PRESIDENT: Right. Now, clause 7 - - -

PN20

MR McINNES: Yes, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: - - - says you are going to continue the process of achieving the measures set out in two previous agreements.

PN22

MR McINNES: Yes, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Which I presume are two previous certified agreements, are they?

PN24

MR McINNES: Yes, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: And:

PN26

Except where specified in this agreement, the previous enterprise agreements shall continue to apply as if they were part of this agreement.

PN27

So that is effectively an inconsistency clause, is it not?

PN28

MR McINNES: Sorry, your Honour?

PN29

THE SENIOR DEPUTY PRESIDENT: The previous agreements - - -

PN30

MR McINNES: Yes.

PN31

THE SENIOR DEPUTY PRESIDENT: - - - are part of the agreement.

PN32

MR McINNES: Yes, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Except where they are - in this - in this in the - - -

PN34

MR McINNES: Except where there may have been a change as a result of this agreement, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes. Right. And to the extent of any inconsistency with the previous provisions, then the terms of pages 1 to 22 apply.

PN36

MR McINNES: Yes, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: It talks about:

PN38

The previous enterprise agreement shall continue to apply.

PN39

Is it only the '99 to 2000, and the 2000 to 2002 previous agreements which continue to apply?

PN40

MR McINNES: Just those agreements that are specified there, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Are they the only previous enterprise agreements there has been?

PN42

MR McINNES: No. I think there were some prior to that. But these - those agreements and this agreement are very similar in nature, your Honour. They are very - they are almost rollover agreements, if you like. There might have been a few small changes in the negotiation of those agreements. Wage increases, obviously. But - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Well, the clause doesn't say it is only those two enterprise agreements. How can I be sure the employees understood that it was only those two you were talking about, would be part of this agreement?

PN44

MR McINNES: Well, your Honour, the - sorry.

PN45

MR McDONALD: I think we - I think in the previous agreement there is a similar clause - - -

PN46

THE SENIOR DEPUTY PRESIDENT: You might need to state who you are.

PN47

MR McDONALD: Sorry. Cameron McDonald.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR McDONALD: Representing the employees. I think in the previous agreement there is the - a same clause. So it is - it, like, rolls on. The last one had this written in it. The one before had that written in there as well.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. Good. But how do I know the employees understood that it wasn't some agreement you reached in 1970?

PN51

MR McDONALD: I don't understand what you are getting at.

PN52

THE SENIOR DEPUTY PRESIDENT: Well, it says:

PN53

Except where specified in this agreement, the previous enterprise agreement shall continue to apply as if they were part of this agreement.

PN54

MR McDONALD: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: It is not beyond imagination, I can tell you, that you have a dispute with CSR Wunderlich some time down the track during the operation of this agreement. And it will be argued before me that means every previous enterprise agreement we had. Why am I to believe, or understand, that the employees who voted on this agreement didn't think it applied to every other. It only applied to the CSR Wunderlich Vermont Enterprise Agreement '99 to 2000; and the 2000 to 2002 one.

PN56

MR McDONALD: I can't answer whether they believe that or not. I don't know.

PN57

MR McINNES: I think, your Honour, the - I mean, all I can add is probably what - maybe I am not adding anything, but this agreement is very similar in nature to the two previous agreements. I know it perhaps doesn't answer your question, but - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Is the issue then raised in the two previous agreements?

PN59

MR McINNES: No, it hasn't, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: During their certification. Not at the time of certification, but whilst the agreements have been in operation.

PN61

MR McINNES: No, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: You are representing the employees?

PN63

MR McDONALD: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: Yourself. And the other gentleman?

PN65

MR McDONALD: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: And your name?

PN67

MR TILLI: John Tilli.

PN68

THE SENIOR DEPUTY PRESIDENT: Mr Tilli. Did you understand that it only applied to those two agreements that are specified above?

PN69

MR TILLI: Yes, I always - sorry. I always understood that the other agreements did come into play, unless it was written out on a - on a set clauses.

PN70

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN71

MR TILLI: Any - any - the other agreements were a part of this agreement. And, as far as I knew, any agreement that was between the employees - employees, was still active, unless it was written out or changed in this agreement.

PN72

THE SENIOR DEPUTY PRESIDENT: So do you understand that other enterprise agreements, apart from the '99 to 2000, and the 2000 to 2002 one, still apply?

PN73

MR TILLI: Yes, yes.

PN74

THE SENIOR DEPUTY PRESIDENT: I can't certify.

PN75

MR McINNES: Yes, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: There is a fundamental misunderstanding about the operation of the agreement.

PN77

MR McINNES: Yes, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: All I can suggest is you go away and do it again, I think.

PN79

MR McINNES: I guess that - I guess we have to.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes. What I will do is - I am just checking whether I had any other concerns we have to clear up on the way, as well. Mr McInnes, just in terms of the procedure, it says effectively the written notice was given on 6 September and the vote was taken on the 20th.

PN81

[10.24am]

PN82

MR McINNES: Yes, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: I am always really uneasy about exactly 14 days. I think, for protection it is better to take 15 days.

PN84

MR McINNES: Right.

PN85

THE SENIOR DEPUTY PRESIDENT: I am not sure whether, you know - - -

PN86

MR McINNES: In fact I think - - -

PN87

THE SENIOR DEPUTY PRESIDENT: - - - the 14 days includes the next day, or whatever.

PN88

MR McINNES: Some employees got it before - prior to the 6th. All employees had received it by the 6th.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. It is just that - - -

PN90

MR DORROUGH: Can I answer that?

PN91

THE SENIOR DEPUTY PRESIDENT: You know, frequently people do it bang on what they regard as the 14 days, and it is a bit dicey, I think. I would just suggest that you perhaps take the extra day just to make certain that you have met that requirement in the Act, given you are going to have to do it again, anyway.

PN92

MR DORROUGH: Michael Dorrough. If I could just answer that we had - we actually gave the notice on the 2nd and there was one employee that we didn't get to and was not until the 6th, so then we made it the 20th.

PN93

MR McINNES: Your Honour, just on the question you asked about that clause 7.

PN94

MR DORROUGH: Yes. My understanding, your Honour, is the enterprise agreement '99/2000 - - -

PN95

THE SENIOR DEPUTY PRESIDENT: Yes.

PN96

MR DORROUGH: - - - actually refers to the previous agreements so be referring to the '99/2000 agreement, we are locking-in previous agreements.

PN97

THE SENIOR DEPUTY PRESIDENT: Do we have that agreement here?

PN98

MR DORROUGH: No, sorry, your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: Right. Hang on. I have got a copy of that on file. Let me see if I can turn it up. Okay. This says:

PN100

To the extent that the parties to this agreement agree to a process of improving the productive performance of the enterprise through the implementation of measures set out in the third CSR Vermont Enterprise Agreement 1996 the parties agree to continue the process of achieving those measures. Except where specified the previous enterprise agreements shall continue to apply as if they were part of this agreement.

PN101

So you are saying that by virtue of that it incorporates what Mr Filli - - -

PN102

MR DORROUGH: And it is consistent with what Mr Filli said, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Very well. Well that makes it clear, I must say. Okay. In terms of process, the written notice, there was only one employee who actually got it on the 6th of - - -

PN104

MR DORROUGH: That is right.

PN105

THE SENIOR DEPUTY PRESIDENT: Right. Now in terms of reductions under the agreement vis-a-vis the relevant award or other law, in clause 6.3 of the statutory declarations - - -

PN106

MR McINNES: Yes, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: - - - there is no answer to that question. Am I to take it that there is no reductions in the agreement vis-a-vis the terms of the award or other relevant law - - -

PN108

MR McINNES: No.

PN109

THE SENIOR DEPUTY PRESIDENT: - - - that all conditions and terms of employment are an advance of award or other relevant law.

PN110

MR McDONALD: That is right, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: Thank you. What you have said about how the agreement operates in respect of the earlier agreements and the earlier agreements incorporation of previous agreements clarified the issue which is of concern to me, is there anything the two employee representatives would like to add? Very well. Well, having regard to material contained in the file in this matter and the submissions put to me, I am satisfied I should certify the agreement known as the CSR Monier Wunderlich Maintenance Employees Vermont Enterprise Agreement 2002. I am satisfied that to do so would be consistent with the requirements of the Act and the regulations. The certification will come into force from today's date and remain in force until 30 June in the year 2005. Thank you.

ADJOURNED INDEFINITELY [10.32am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 MEMORANDUM TO ALL MAINTENANCE EMPLOYEES DATED 2/9/2002 PN5