AG2001/7373, Transcript of Proceedings [2002] AIRCTrans 440 (18 February 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2001/7373

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by National Union of Workers - South Australian
Branch and George Weston Foods Limited for certification
of the Weston Milling (SA) Enterprise Agreement 2000

ADELAIDE

10.32 AM, WEDNESDAY, 30 JANUARY 2002

PN1

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

PN2

MR D. TRENOUTH: I appear on behalf of the National Union of Workers.

PN3

MR A. de VRIES: I appear on behalf of Weston Milling South Australia Division of George Weston Foods.

PN4

MS N. TOWN: I also appear on behalf of the company, Weston Milling.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, who is going to open the proceedings this morning?

PN6

MR TRENOUTH: I will, Senior Deputy President.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Trenouth. It is probably appropriate that I do apologise for our late start this morning. Hopefully it has not disadvantaged people too much.

PN8

MR TRENOUTH: No, not at all. Senior Deputy President, this is an application made pursuant to division 2 of part 6B of the Workplace Relations Act 1996 between the National Union of Workers and Weston Milling SA. I think it is appropriate at this time I would seek leave to amend the document in quite a number of areas. I understand that the amended document has been E-mailed to the Commission and the other parties to this matter. I would have preferred if we had had time to give you a list of the actual changes in the documentation but if necessary I can certainly hand up to the Commission this particular document that outlines where the changes are.

PN9

We apologise for any problems we have caused the Commission in relation to this matter but the amendments are principally all in the areas of putting the correct wording in and the numbers, the appropriate clause numbers, particularly in cross-referencing between clauses. I think when it was originally done it was mainly taken from the award itself and some new clauses were put in. Unfortunately the clause numbers were not amended to make sure the document was properly readable and understandable by the parties involved. It certainly did not change the context of the enterprise agreement at all, so as I say, Senior Deputy President, I would seek leave to amend the document that I hope has been forwarded to you.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Trenouth, it has been forwarded to me in an amended form. It might be appropriate though that I ask you either now or at the conclusion of your submissions to hand up the version that you have got so that it can be retained on the file for future reference.

PN11

MR TRENOUTH: Sir.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN13

MR TRENOUTH: Senior Deputy President, this application in relation to an agreement in writing about matters pertaining to the relationship between the employer, Weston Milling SA, a constitutional corporation, and all persons who at any time the agreement is in operation are employed in part of a single business and whose employment is subject to the agreement. In accordance with section 170LJ the employer has made the agreement with one or more organisations of employees where each organisation has at least one member employed in the part of the single business.

PN14

The agreement was approved by a valid majority of the employees to be bound by the agreement and the employer made reasonable steps to ensure employees had access at least 14 days before approval was given to the agreement in writing and the terms of ten agreement were explained to all employees. Senior Deputy President, the agreement has been generally approved by a valid majority of the employees. The terms of the agreement have been explained in accordance with 170LT part 7. The agreement at clause 10 includes procedures for preventing and settling disputes and the agreement is due to expire on 31 December 2003. On that basis, Senior Deputy President, I would therefore seek the approval of the application pursuant to section 170LT.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Trenouth. I should indicate to you I do have a couple of other questions relating to the agreement and the approval process but it might be best if I hear from the employer first of all.

PN16

MR TRENOUTH: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Ms Town, are you going to speak for the company?

PN18

MS TOWN: Yes, I will, Senior Deputy President.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN20

MS TOWN: We agree with the submission made by the NUW except that the agreement will actually expire on 31 December 2002, not 2003. We have nothing more to add to their submission.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Trenouth, I need to preface my questions by saying they are not designed to impede the process of certification but rather to ensure that the requirements of the Act are met and indeed to satisfy myself on a couple of issues relating to the content of the agreement. Can I take you first of all to the statutory declaration and just ask you whether you can provide me with some more information that goes to the extent to which the persons from a non-English-speaking background were indeed able to fully understand and comprehend the nature of the agreement and the process that they are embarking upon.

PN22

MR TRENOUTH: My instructions are, Senior Deputy President, those people from non-English-speaking background do have a thorough understanding of the English language. As I say, they are my instructions. I was not the person from the union involved in the application. I'm sure Mr de Vries could assist me in that particular matter.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr de Vries, can you - - -

PN24

MR de VRIES: We are more than comfortable that both through the consultative committee and also through the - having offered total individual copy each employee prior to voting that everybody on site clearly understands and there are no language barriers with any of our people in terms of understanding it all.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, can I take you from that point then, Mr Trenouth, to the agreement itself. Ms Town has already clarified one issue in that I now understand the agreement expires on 31 December 2002.

PN26

MR TRENOUTH: Yes, my apologies, Senior Deputy President.

PN27

THE SENIOR DEPUTY PRESIDENT: The provisions of clause 9 reference the opportunity for the involvement of the union delegate. Can I understand though that in the event that an employee who is not a member of the union, that employee has access to other representation and not simply to, as clause 9.5 appears to indicate - Ms Town, I'm wondering whether I can ask a favour from you. On the bar table in front of you should be a triangular black microphone for the video proceedings. Can you move it away from the papers because every time you turn a page you make your presence felt.

PN28

MS TOWN: I do apologise.

PN29

THE SENIOR DEPUTY PRESIDENT: That is all right. Thank you. The provisions of clause 9.5 appear to give the employee who is not a member of the union the ability to be accompanied by a colleague. Now, that is something potentially a little different to a person who is not a member of the union being able to access alternative representation and I'm just wondering whether you can assist me in relation to the provisions of clause 9 and then clause 10 such that if an employee were not to be a member of a union that employee has access to alternative representation.

PN30

MR TRENOUTH: Well, yes, certainly, Senior Deputy President, that would be the understanding of the union and I'm sure the company to give an undertaking that perhaps the wording does not explain it fully as you have outlined but there would be no impediment to any non-union member being able to access whatever right for representation that they believe would be appropriate in their circumstances. There is certainly no intent to disadvantage a person who is not a member of the union.

PN31

THE SENIOR DEPUTY PRESIDENT: Ms Town, can you confirm that from the company's perspective?

PN32

MS TOWN: Yes, I can, Senior Deputy President.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, can I clarify in relation to the wages clause 16 that clause 16.7 will apply on a one-off basis such that it provides for a single CPI based wage increase or in the alternative a 2.67 per cent wage increase to come into effect from 1 January 2002.

PN34

MR TRENOUTH: That is certainly my understanding, Senior Deputy President.

PN35

THE SENIOR DEPUTY PRESIDENT: That wage increase would be known in terms of the content, that is whether it is the 2.67 or the CPI, whichever is the higher, when the CPI or Australian Bureau of Statistics estimates for CPI are published for the period leading up to October last year.

PN36

MS TOWN: Senior Deputy President, if I may? I believe the actual increase has already been paid from the first full pay period commencing in January this year.

PN37

THE SENIOR DEPUTY PRESIDENT: In which case, Ms Town, can you confirm to me then that the wage rates contained in clause 16.52 have already been superseded.

PN38

MS TOWN: Yes, they have.

PN39

THE SENIOR DEPUTY PRESIDENT: Have they been superseded then by ten amount of 2.67 per cent or by a higher amount and if so can you tell me what ten amount is?

PN40

MS TOWN: I will just ask Mr de Vries if he could step in here for a moment and let us know a figure.

PN41

MR de VRIES: Yes, I can qualify that.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr de Vries.

PN43

MR de VRIES: The figure is 2.67 as it was the higher of the two and it has already been granted across the board.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I refer you to clause 22.3 to seek clarification as to the impact of an employee being on annual leave, or indeed long service leave, in relation to the operation of clause 22.3.1?

PN45

MR de VRIES: I can't quite understand what the question relates to, Deputy President.

PN46

THE SENIOR DEPUTY PRESIDENT: Mr de Vries, what I'm wanting to clarify there is that the absences for sick leave, bereavement leave or jury service are clearly excluded and I just wanted clarification that other paid absences such as annual leave are also excluded or are not excluded. It is simply - my question is not a trick one. It is just designed to clarify now, in this environment what applies - - -

PN47

MR de VRIES: Yes, okay.

PN48

THE SENIOR DEPUTY PRESIDENT: - - - because otherwise I would not like to be in a situation where the parties come back to the Commission to say: we've got an argument over what this clause means.

PN49

MR de VRIES: Yes, good point, okay.

PN50

THE SENIOR DEPUTY PRESIDENT: And when I look back through the proposed agreement I find that it has got a pencilled question mark alongside it and I would then say to myself: why did I not ask a question at this point.

PN51

MR de VRIES: Yes. Good point, okay. I've only just digested it myself to make sure that I understand the intent as well.

PN52

MS TOWN: I thought that if that is an award clause, Senior Deputy President - come straight from the award - is that correct?

PN53

MR de VRIES: I think that is correct, yes.

PN54

MS TOWN: And it is just referring to unpaid periods of absence?

PN55

THE SENIOR DEPUTY PRESIDENT: No, Ms Town, it is actually quite specific. It excludes public holidays, paid sick leave, bereavement leave or jury service leave and my question goes: does it also exclude paid annual leave and the parties intend it to exclude paid annual leave.

PN56

MR de VRIES: I would think annual leave would have to be excluded as well, Senior Deputy President.

PN57

MS TOWN: I agree with that.

PN58

THE SENIOR DEPUTY PRESIDENT: Ms Town, thank you. Clause 23.1 appears to me to establish a provision whereby the rates that are outlined in clause 16 and have now been increased, would be reduced by an amount of $1.86 per day in the event of a new employee who is not working in a non-dusty environment and I just want confirmation from the parties that my understanding of that clause is correct.

PN59

MR de VRIES: That is my understanding also.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Trenouth?

PN61

MR TRENOUTH: Yes, that is certainly my interpretation of the clause, Senior Deputy President.

PN62

THE SENIOR DEPUTY PRESIDENT: And if I can take you to clause 27.2, and to the very last option contained in that clause which indicates: plus telephone rental and just seek clarification, does that mean that telephone rental is generally paid?

PN63

MR de VRIES: Yes, that is correct, for all people who are on a regular call out requirement. In fact that raises quite a good point. I think it might be better next time we rewrite this that that particular sentence is put in a slightly different manner because it looks, as you obviously picked up, that it is part of an option. It is really just part of a base, as part of the whole call in deal, so we could probably word that a bit better next time I think.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. There are a number of provisions of the agreement that might be capably worked on throughout the life of this agreement so that the next version is less inclined to cause questions - - -

PN65

MR de VRIES: I totally share that view.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you very much for answering my questions. As I indicated they were designed to try to clarify issues now. I have considered the agreement. I have considered the statutory declarations and the information provided in response to my questions this morning. I'm satisfied that the agreement was reached through a process envisaged by the Act and that employees the employees to be covered by it, were able to make a fair and informed decision to endorse the agreement in their majority. I'm satisfied that the agreement itself meets the no disadvantage test and does not contain provisions that are contrary to the Workplace Relations Act. The agreement is of a duration envisaged by the Act in that it expires on 31 December 2002 and it contains the necessary dispute resolution procedure.

PN67

Accordingly, I will certify the agreement as of today's date. A certificate will be prepared and forwarded to the parties in due course. It remains for me to congratulate you obviously on reaching this agreement. The certification process is a simple one and the process whereby the agreement was reached was obviously a more complicated process. I sincerely hope that you do not need to use that dispute resolution procedure during the life of the agreement and trust that it brings some benefit for both an employee and the employer perspective. I adjourn the matter on that basis, thank you.

ADJOURNED INDEFINITELY [10.52am]