AG2001/5182, Transcript of Proceedings [2002] AIRCTrans 555 (22 February 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT02397

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

AG2001/5182

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Maxwell Transport Group Pty Ltd
for certification of the Maxwell
Transport Group Enterprise Agreement 2001

MELBOURNE

10.03 AM, WEDNESDAY, 6 FEBRUARY 2002

Continued from 26.11.01

PN153

THE COMMISSIONER: As you are aware from my decision on 31 January 2002 this matter has been relisted. I had hoped to be able to resolve the question of certification of the agreement by exchange of correspondence but that, in the end, as is clear from that decision, was not possible. I have had the benefit of discussions in conference this morning. There are, in my view, a couple of aspects in relation to 31 October 2001 version of the agreement about which I seek undertakings from the employer and I am also, in light of the correspondence, of the view that clause 5(c) of the agreement doesn't express, in fact, what was the outcome of discussions between the company and its employees and also the involvement of the TWU.

PN154

And I propose, in order to remove any ambiguity in relation to what that clause means, to vary that clause pursuant to section 170MD(2) - MD(1), (2) and (3) of the Workplace Relations Act 1996. Mr Ryan, it is clear from your letter of 21 December that in relation to clause 5(c), wages, which deals with miscellaneous - any time worked on night shift which is any shift commencing after 4 pm - that in fact the company, in practice, and in the discussions with the employees, indicated to them that it was an issue of commencing on or after 4 pm, would be compensated by a payment of 25 per cent loading on the ordinary rate of pay. Is that correct, Mr Ryan?

PN155

MR RYAN: That is correct, Commissioner. It was an oversight on my behalf to leave the on or after out.

PN156

THE COMMISSIONER: Okay. Ms Tisdale, has the union any view about its understanding, given it was involved in those discussions?

PN157

MS TISDALE: We would be happy for the variation to be made to remove any possible ambiguity. On my understanding the employees believe that shift penalty is paid for shifts commencing at 4 o'clock in the afternoon.

PN158

THE COMMISSIONER: Thank you. Well, I will vary the agreement and clarify it such that the words, "On or" are inserted before "After" in the first line of clause 5(c). The other issue of concern which has been the subject of exchanges of letters relates to payment of overtime and also in relation to the rates of pay that under the agreement would be payable to a casual. From the documentation which has been exchanged since the last hearing the company has clearly indicated that its calculations reflect what actually happens in practice. That is made clear in Mr Ryan's letter of 21 December.

PN159

It is clear from the union's point of view. I have marked the document exhibit T2. The union has a concern that there are a range of scenarios possible and that, on balance, they would submit that the no disadvantage test is not met. Given the actuality, certainly, I would be satisfied if that was all that applied, that the no disadvantage test would be met in the aggregate. However, given the fact that it is not possible to foresee into the future and there may be a need from time to time for the company to operate in such a way that there is variation to which currently applies, I propose to seek from the company an undertaking that every six months during the life of this agreement it will conduct a - or produce a document which sets out a comparison for each employee of the rate that they would have received if they had been paid according to the agreement - paid according to the award, rather and what they have received under the agreement.

PN160

And, where the aggregate remuneration under the agreement's provisions is less than what they would have received under the award, that the company will make up that difference with a lump sum payment. That the comparative document will be lodged with the registry of this Commission and also a copy provided - be addressed to me and that a copy of the comparison is available for employees to examine and if that undertaking is forthcoming then I am minded at this stage to certify the agreement. But before I finally determine that I will just seek the views of both the company, through Mr Ryan, and the union, through Ms Tisdale.

PN161

MR RYAN: Commissioner, the company is prepared to give the undertaking requested by this Commission and just to clarify it, it is a copy sent to the registry addressed to you with the appropriate file number, etcetera.

PN162

THE COMMISSIONER: Yes, that is right.

PN163

MR RYAN: Yes, and also a copy available to the employees, I think you said.

PN164

THE COMMISSIONER: That is right.

PN165

MR RYAN: The company is - - -

PN166

THE COMMISSIONER: And if they wish to seek to take the matter up with their organisation then they are free to do so.

PN167

MR RYAN: The company is prepared to agree to the undertaking as requested by the Commission.

PN168

THE COMMISSIONER: Thank you, Mr Ryan. Yes, Ms Tisdale?

PN169

MS TISDALE: We would be happy with that as a way of resolving the situation. I still don't think it is a good agreement but at least now, on that basis, it will meet the no disadvantage test, in our view. Thank you.

PN170

THE COMMISSIONER: Well, I will certify the agreement and be certified with effect from today. I will provide a copy of the certificate setting out - well, with the certificate will be a decision which will set out the variation that I have made and the undertaking which has been given. And I will provide that as soon as I am able. Is there anything further? Do you want to go off the record, Mr Ryan?

PN171

MR RYAN: Yes.

OFF THE RECORD

PN172

THE COMMISSIONER: This matter is adjourned.

ADJOURNED INDEFINITELY [10.14am]