AG2003/1230, Transcript of Proceedings [2003] AIRCTrans 1431 (16 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/1230

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Auspine Limited and Another for certification
of Auspine Limited Kalangadoo Site Enterprise
Bargaining Agreement

ADELAIDE

10.08 AM, WEDNESDAY, 2 APRIL 2003

PN1

THE COMMISSIONER: Appearances thanks.

PN2

MR J. SMITH: I appear on behalf of Auspine Limited. Here with me is MR RIDINGS from EMA and MR GOMER from Auspine Limited.

PN3

THE COMMISSIONER: Thanks, Mr Smith, Mr Ridings, Mr Gomer.

PN4

MR SMITH: Thank you, sir.

PN5

THE COMMISSIONER: Now, who wants to speak to this agreement? Mr Smith, are you speaking to this agreement?

PN6

MR SMITH: Yes, sir. Today the application under section 170LJ for the certification of an agreement at the Auspine facility at Kalangadoo in the State of South Australia. One preliminary point that requires addressing before I go too much further. There's a typographic error in reference to the date of certification on the signing page which is on page 31 of the agreement, the commencement date should be amended to be from the first full pay period commencing on or after the date of its certification.

PN7

THE COMMISSIONER: Sorry, we are looking at page - - -

PN8

MR SMITH: Page 31.

PN9

THE COMMISSIONER: 31, under clause 18 signatories, is that the one? Which clause are you looking at? My page 31 has got clause 18, "signatories" at the top.

PN10

MR SMITH: That is the correct one, sir.

PN11

THE COMMISSIONER: Yes.

PN12

MR SMITH: The commencement date should be amended to be from the first full pay period commencing on or after the date of its certification and will remain in operation till 30 November 2004. We therefore seek leave to amend the date of operation at the signatories clause of the agreement.

PN13

THE COMMISSIONER: Well, of course the union is not here so I don't know what the situation is with the union. How did this occur? I mean at the moment it stipulates there 1 December 2000.

PN14

MR RIDINGS: Sir, I can shed some light on that, if the Commission pleases.

PN15

THE COMMISSIONER: A fairly major point here.

PN16

MR RIDINGS: The date of operation of the agreement is in, I think, clause 5 of the agreement proper, commencement and duration. What has happened, sir, is that when I produced this document I regretfully neglected to make that alteration in the appropriate part of clause 18 to change the dates. So the union signed the document and returned it to me before they discovered the error and because we were already pushed for time within the 21 day limit, we filed the document and the commencement and duration clause does make it clear. That in fact is the wording, clause 18 is the wording from the previous agreement which was held.

PN17

THE COMMISSIONER: I must admit, I didn't even look at clause 18 but I did look at clause 5 and in the notes that I've got here, I noted that it was to be operative from the first pay period on or after the date of certification but I mean, clearly then that is just a typographical error. The body of the agreement makes it clear. So, yes, I mean I'm happy to accept that as a typographical error. Mr Smith, presumably - well, this is the difficulty of course because that happens to be the signatories page, does it not? I was going to say normally we would say, look, just provide a replacement page to that. I wonder how we can overcome that.

PN18

MR RIDINGS: Perhaps in the manner of an undertaking or a letter between the parties submitted for the Commission's file, sir.

PN19

THE COMMISSIONER: Yes, it is not so much an undertaking, is it?

PN20

MR RIDINGS: No.

PN21

THE COMMISSIONER: It is a point of clarification. I would have thought that the Act would allow me to perhaps accept a jointly signed letter from the parties just clarifying that that was in fact a typographical error and confirming that the body of the agreement at clause 5 is in fact the substance of it. I think perhaps just a jointly signed letter would be adequate and that would be the equivalent of an undertaking.

PN22

MR RIDINGS: If the Commission pleases, I've just been shown an interesting document by my client which is in fact another version of page 31 signed by the union with the correct dates. The union supplied us with two copies of the agreement, that one with the changed date and I think, sir, if I can suggest - - -

PN23

THE COMMISSIONER: Well, look, either if we can have a replacement page which would be the simplest if in fact you have got a replacement page there with the signatures and with the correct date or a jointly signed letter which I would regard as an undertaking for the purposes of the Act even though technically, you know, undertaking is a bit of a loose term for this sort of thing. I think we could regard it as an undertaking for the purposes of the Act. It is in event a clerical error. That is all it is.

PN24

MR RIDINGS: Yes, sir.

PN25

THE COMMISSIONER: I think one way or the other, a replacement or a letter.

PN26

MR SMITH: Thank you, sir. Sir, as the Commission would be aware, employees are represented by the Construction, Forestry, Mining and Energy Union. Genuine and formal consent was given by a valid majority of employees after a full explanation of the terms of the agreement and the majority respects the terms of the agreement are similar to the terms of the previous agreement. We submit that the agreement complies with all requirements for ratification contained within the Workplace Relations Act.

PN27

The parent award is the Timber and Allied Industry Award (1999) and the Metal, Engineering and Associated Industries Award (1998). The agreement is intended to run until 30 November 2004. I do not propose to go through the agreement in any significant detail but I would like to make some points for the record. Clause 6.9 has been varied. Details and more solid commitment between the parties to developing the site and making sure that the site is viable and has a long term future.

PN28

Clause 10.5 has tightened up the specifics of employee utilisation in the event of short term changes to staffing in production centres due to productivity issues. A new clause, clause 10.6.8 has been includes. It describes a process that applies when work covered by the agreement has been transmitted from Auspine Limited to another employer and the employees offered employment with the transmittee. Wages have been increased by the provision of two pay increases through the life of the agreement.

PN29

Subject to the conditions detailed in the agreement, salary sacrifice provisions for superannuation have been introduced as a benefit to employees of the company. At clause 11.4, the provisions surrounding journey accident insurance have been included in further detail for clarity and consistency. At clause 14.1.4, provisions have been inserted in relation to training and skill enhancement for personal development. These provisions seek to add value to investments in vocational training and skill enhancement.

PN30

The appendices have been redrafted where necessary to update them in accordance with the changes in customary practice always provided for by this agreement. Sir, we commend this agreement for ratification by the Commission and if the Commission has not further questions, I will leave my submissions there.

PN31

THE COMMISSIONER: I do have some questions. First of all, I would indicate that we are proceeding the union not here today for whatever reason. If I had had problems with the statutory declaration from the union, from Trevor Smith from the union, then I would have adjourned proceedings today and asked for him to attend. As it turns out the statutory declarations, as far as I am concerned, are entirely in order so I don't have a problem with that.

PN32

I do have a question about the agreement, particularly clause 11, the "Wages and related matters". It is a question that applies to a number of agreements these days and I just want to make a point on this and perhaps get the parties to respond. The clause 11 is entitled, "Wages and related matters", clause 11.1 is entitled, "Wage rates", but of course there are no wages rates specified there. There are only wage increases. Now, I know that the parties will say: yes, but if you go to appendix 5, appendix 5 actually sets out what the classifications are and the actual rates there so that is covered.

PN33

Then I would only ask this question. How are those appendices, all of them for that matter but in particular appendix 5 which is the one we are looking at in regard to clause 11, how are they linked or connected in with the agreement in any way? What gives them force, you know? It is a bit like an Act and Regulations, regulations only derive their force and effect from the Act and there's got to be something in the Act that links them and the regulations, if you know what I mean.

PN34

So I'm just putting myself in the position of a Court, you know, a Magistrate or a Federal Court down the track looking at this and trying to interpret this and apply it. You have got clause 11, "Wage rates" and there's no wage rates specified. It is only wage increases. I think I would have real problems if there wasn't somewhere in the agreement, the actual classification structure to which those wage increases apply. I note that appendix 5 has the classification structure but it is not connected with the body of the agreement in any way.

PN35

It is just sort of hanging there like out in space. It is more a comment that I've got. I think I understand where the parties are getting at but it is something that bothers me in terms of the enforceability of this thing. The other thing I would say in regard to appendix 5, you have got the classifications list there, you know, level 2, level 3, level 4, C5, 6, 7, etcetera. However, there are no definitions or explanations as to what is meant by those levels. Now, the parties would say: well, that is when you have got to go back to the award, of course the award makes that clear.

PN36

I mean, the agreement itself should make that clear, surely, I would have thought. Perhaps the whole thing is complicated by the fact that although the agreement is to be read in conjunction with the award, the agreement of course overrides and the agreement specifically says that. So Mr Smith, I'm sorry to hit you with this but maybe you or Mr Ridings, I mean, I would like your comments on that, any response you might want to make on that because this is something I'm striking with a number of agreements, particularly in this panel I have to say. It does concern me.

PN37

MR RIDINGS: I'm happy to address that, sir, if that is all right with you?

PN38

THE COMMISSIONER: Yes.

PN39

MR RIDINGS: Yes, I do take those comments on board and from a drafting point of view, for instance, it might be common to have in a clause such as 11.1 a subclause which in fact incorporates the appendix, something along the lines of as set out in appendix 5.

PN40

THE COMMISSIONER: Exactly and there's a connection there.

PN41

MR RIDINGS: Yes. Likewise perhaps in an introductory part of the agreement it might be common to see something like, this agreement and all of its appendices apply from such and such a date to so and so date. But for the record though, for today's proceedings, it is certainly my instructions that each of these appendices are to be read as part of the agreement and to be treated as such. The level described in appendix 5 refers to the award level, levels 1 through I think it is to 6 in the Timber Industry and the C classifications relating to the maintenance employee on that site.

PN42

THE COMMISSIONER: The way in which people are classified - well, they are classified presumably according to the procedures in the award. I mean, that is the obvious thing, isn't it?

PN43

MR RIDINGS: Yes, sir, correct.

PN44

THE COMMISSIONER: See, the relevance of this is the actual signature page is page 31 which is before any of the appendices and as I see it, correct me if I am wrong but I don't think in the body of the agreement there's anything in there to connect any of the appendices for that matter to the agreement as such. As I say, they seemed to me to be sort of hanging out in space, in mid-air and are the appendices part of the agreement or not. Now, we all know that you intend it to be part of the agreement but it is just sort of really not clear and in terms of things like harassment and so on there's probably no problem there because clearly the parties intend it.

PN45

In regard to wage rates, that is pretty fundamental and I think for future reference, we will just note it. I mean, I note what you are saying in regard to how it is intended to operate and I have no doubt that is how the parties intend it and I will let it through for today but I would say this, that if there had been no appendix there or no classification structure to which those wage increases related, if it just had wage increases and no classification structure, I wouldn't let the agreement go through. I would say it would have to be amended.

PN46

MR RIDINGS: Yes, sir, I'm aware of a few agreements where such a construction has occurred and the parties have been required to make amendments and provide undertakings and wage sheets and the like because I do take on board what you are saying as a point for drafting for the future.

PN47

THE COMMISSIONER: Well, I'm happy to leave it at that. As I say in the union's absence I normally would not proceed with these matters, if I had any problems with the statutory declarations but I can indicate for the record that the Commission has perused the statutory declarations on file of Steven Gomer, the human resources manager of Auspine and Trevor Smith, Federal secretary of the Forestry and Furnishing Products Division of the CFMEU and I'm satisfied that those statutory declarations are in order.

PN48

I've also had the opportunity to peruse the terms of the agreement, the subject of this application and having heard from the parties today in relation to this application, have the agreement certified under Division 2 of Part VIB of the Act. I note firstly for the record that the Timber and Allied Industry Award (1999) is the relevant award for the purposes of the no disadvantage test. I can indicate that the agreement, in my view, satisfies the no disadvantage test when measured against that award.

PN49

I note that the agreement at clause 8 includes procedures for preventing and settling industrial disputes between the parties, that is clause 8. Further, the Commission declares then that it is satisfied that all the necessary procedural and other statutory requirements for certification of the agreement have been met and accordingly the Commission certifies the Auspine Limited Kalangadoo Site enterprise bargaining agreement 2003. The agreement will be operative as per clause 5 and as explained by the employer this morning, the agreement will operate from the first full pay period commencing on or after the date of its certification.

PN50

The date of certification will be today's date, 2 April 2003 and the agreement will remain in force until 30 November 2004. The necessary documentation confirming certification will be forwarded to the parties in due course after I receive a replacement page as discussed in the proceedings, that replacement page being at clause 18, page 31 of the agreement. If a replacement page is not available, then a jointly signed letter from the parties explaining the clerical typographical error in that clause. Unless there's anything further for the record.

PN51

MR SMITH: No, sir.

PN52

THE COMMISSIONER: No, that being the case, I think that disposes of the hearing of the matter.

ADJOURNED INDEFINITELY [10.24am]