AG2003/1232, Transcript of Proceedings [2003] AIRCTrans 1583 (29 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/1232

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Tyco Australian Proprietary Limited
trading as Wormald and Another for certification
of CEPU and Wormald Adelaide Sprinkler Fitters
(a Tyco Australia Proprietary Limited company)
Enterprise Agreement 2002-2005

ADELAIDE

11.25 AM, FRIDAY, 11 APRIL 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have some appearances please?

PN2

MR N. LEAN: If it please your Honour, I appear for the CEPU Plumbing Division.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Lean.

PN4

MS F. HUGHES: If your Honour pleases, I appear on behalf of Wormald.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Hughes. As you have been sitting patiently in the back of the courtroom you should probably be able to predict many of the questions that I will raise today.

PN6

MS HUGHES: Yes, your Honour, and hopefully I will have answers to them already.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Lean?

PN8

MR LEAN: Your Honour, I believe - - -

PN9

THE SENIOR DEPUTY PRESIDENT: I see, the application is actually made by Wormald.

PN10

MS HUGHES: By myself.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Hughes?

PN12

MS HUGHES: Your Honour, we seek to have the Wormald Adelaide Sprinkler Fitter Enterprise Agreement of 2002-2005 certified in accordance with section 170LJ of the Workplace Relations Act. Your Honour, the agreement complies with the requirements of the Act and the rules of the Commission. Accordingly, we seek to have the agreement certified on the basis of the statutory declarations provided. Your Honour, as per clause 4, the agreement remains in effect until 1 October 2005 and both clause 8 and appendix 2 of the agreement deal with the disputes resolution procedure should it be required.

PN13

Commissioner, both the union and the company held a number of meetings over quite a period of time between approximately October last year and January of this year to arrive at this agreement and to explain the terms of the agreement to the employees. The union, via Mr Lean, held a final meeting back in February at which time a majority vote was taken for the agreement to be accepted. If your Honour pleases.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Hughes. Can you confirm to me, Ms Hughes, that the employees either had ready access to or indeed copies of the proposed agreement, at least, a fortnight before they voted?

PN15

MS HUGHES: I can, your Honour, the employees were all given a copy of the final agreement and also had access to a number of draft agreements before the final agreement was reached for probably 3 weeks to 4 weeks before the agreement was voted on.

PN16

THE SENIOR DEPUTY PRESIDENT: Very good, thank you. Mr Lean?

PN17

MR LEAN: Your Honour, we concur with Ms Hughes from Tyco. The agreement was circulated quite a bit, I mean, the agreement was reached with no industrial dispute although we did have some entertaining discussions, but basically we agree with the document and we see as - it will be productivity gains for the company and so forth.

PN18

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Lean. Mr Lean, you will understand from the previous matters that you have been involved in today that I will direct some questions now, probably to your relief, to Ms Hughes.

PN19

MR LEAN: It is always relief not to have questions, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: You will understand those questions are not intended to disrupt the process of certification but rather to clarify issues that relate to the intention of the parties at this stage which I would prefer to do rather than running the risk that they might become issues later.

PN21

MR LEAN: I'm well aware of that, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Hughes, the title clause 1 of the agreement specifies a different title to that contained on the cover page. What was the intention of the parties in terms how they believe the agreement should be badged?

PN23

MS HUGHES: The agreement should be titled as per one, page 2 of the actual document.

PN24

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Clause 7 of the agreement purports to recognise the CEPU and its accredited representatives as the sole legitimate representatives of the employees covered by this agreement and to establish the CEPU as the single bargaining unit, gives rise to two questions. Firstly, the extent to which the CEPU was recognised as the sole legitimate representative gives rise to a number of freedom of association questions. Can I understand the position of the parties that the intention is that employees could choose their representatives in relation to issues that might arise pursuant to this agreement?

PN25

MS HUGHES: Absolutely, your Honour, and as a matter of fact there are a number of employees of Wormald who both parties recognise are non-union members and they have been invited to either participate directly in the negotiations with the CEPU and the CEPU members or conversely have their agents do so on their behalf.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Lean, does that reflect your understanding of the intention of the parties and indeed an undertaking on the part of the union relevant to clause 7?

PN27

MR LEAN: That is correct.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Hughes, clause 11 references appendix 2, is that right reference?

PN29

MS HUGHES: If I may refer to Mr Lean, I think it maybe appendix 1, your Honour. Your Honour, it is clause 4 is the reference to specific provisions that deal with our contracting and minor works employees only as distinct from our service employees.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. So the intention there is simply to reference clause 4?

PN31

MS HUGHES: Yes, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Clause 11.1(f) talks of the national document?

PN33

MS HUGHES: Commissioner, there is an understanding - a national document understanding between the CEPU and Wormald nationally that references that it is agreed that the companies will provide income protection insurance for 24-hour, 7-day a week accident and sickness income protection and in that document the cost of that insurance to the company shall remain fixed for the life of the agreement.

PN34

THE SENIOR DEPUTY PRESIDENT: So that the parties are absolutely agreed as to what the reference to the national document means? You see, I'm asking that question because there are occasions when parties reference an agreement or a document in their certified agreement and then have an argument in the future about which document they were referring to, whether they were referring to updates in that document or the document as of a certain time and that is why I am just endeavouring to clarify now that the parties are absolutely at one as to the reference to the national document and, if so, at what point in time?

PN35

MS HUGHES: Your Honour, as that document reads as of today's date which we hope will be the making of the agreement.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Lean, you are in agreement on that issue?

PN37

MR LEAN: As far as we are concerned it is from today's date. I believe there is a document in place at the moment for income protection and has been in a preceding agreement.

PN38

MS HUGHES: That is correct, across all of our business units.

PN39

MR LEAN: And it is right across Tyco, all the Tyco companies we deal with use the same document, I believe it is the IUS one.

PN40

MS HUGHES: Correct.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 20, and ask you to clarify for me what provisions currently apply relevant to registration and licensing? Should I simply have regard to the award in that regard?

PN42

MR LEAN: Could I - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, you can argue that issue out with Ms Hughes.

PN44

MR LEAN: Yes, under licensing, under the Sprinkler Fitters Award 1998 there's not a licensing allowance in there. There is a licensing allowance under the southern States therefore although sprinkler fitting is a licensed trade there is no provision through the award or in this EBA to pay a licensing or registration allowance for that.

PN45

THE SENIOR DEPUTY PRESIDENT: So the words in clause 20 as they currently stand talk of no additional allowances for registration or licensing. How should I read that provision?

PN46

MS HUGHES: Your Honour, if I may? We do pay allowances in accordance with the award but they are not referenced in this agreement for other matters, whether it be height, or dirt or what have you. It was the company's intention to have that clause included in the agreement to make it perfectly clear that there would be no other payment other than the allowances that we currently pay under the award for issues of registration.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, so insofar as the awards address the issue of registration or licensing that is complied with, but there is nothing in addition to that?

PN48

MS HUGHES: That is correct.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 26E, the very last provision in the agreement proper references site agreement. Can I understand that the parties there are referring to a certified agreement which might contain a site allowance or provision?

PN50

MS HUGHES: That is correct, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. So the agreement would need to be certified?

PN52

MS HUGHES: Absolutely.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to appendix 1 and this, Ms Hughes, maybe a question that you want to direct toward Mr Lean, it may also be one that Mr Lean will be quite keen for you to answer. The first column of rates purport to establish the award entitlements?

PN54

MS HUGHES: Your Honour, that actually in terms of our business is actually the rates of pay that our employees are currently on prior to entering into this agreement.

PN55

THE SENIOR DEPUTY PRESIDENT: I see, because I had awful difficulty ascertaining how those various rates could be linked back to the award as it currently stands.

PN56

MS HUGHES: No, your Honour, they are what we are paying today and then with the increases applicable on top of the rates that we are paying today.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you. Appendix 2, talks in the fourth paragraph such that employees may seek advice of the union at any time during the process. Can I take it that from your earlier answers that employees may seek advice from any representative at any time in the process?

PN58

MS HUGHES: Of their choice.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you, and step 5 of the dispute settling process proposes that an unresolved matter might be referred to the Industrial Relations Commission. What is it that the parties would have the Commission do with the matter?

PN60

MS HUGHES: Your Honour, in the first instance the company would certainly be seeking that the Commission attempts to conciliate the matter to a favourable resolution. However, if that were not possible for whatever reason then we would be seeking an arbitrated outcome.

PN61

THE SENIOR DEPUTY PRESIDENT: Thank you. That, Mr Lean, reflects your view?

PN62

MR LEAN: It certainly, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Now, appendix 4, am I correct in understanding that this appendix has application to the same scope of works which apply to the agreement itself?

PN64

MS HUGHES: With one exception, your Honour. The company basically has three different subdivisions, if you like, we have a service division, a contracting division and a group in the minor which we refer to as minor works employees. Appendix 4 relates and applies only to those employees in the subdivisions of contracting and minor works and not to service employees.

PN65

THE SENIOR DEPUTY PRESIDENT: I see. Now, in that event perhaps you might clarify for me then the effect of appendix 4 insofar as we have now agreed that the intention was to reference that appendix in clause 11.1. Does that mean appendix 4 with its more limited scope - - -

PN66

MS HUGHES: All that means, your Honour, is appendix 2 specific provisions enables employees in our contracting subdivision and our minor works subdivision to take a 36-hour week should they choose to do so with that additional day off being an unpaid leave day, where that provision does not apply to service employees.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you. An unpaid leave day. I can appreciate an unpaid day, an unpaid leave day appears to have a different sort of connotation?

PN68

MS HUGHES: It is an authorised in terms of the company agrees that the employee may have that day off, it would usually be rostered or scheduled sometime in advance between negotiations with the parties concerned. The only difference being is that the day is unpaid.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Hughes. Mr Lean, quite apart from the possibility that you may look at recruiting Ms Hughes in the future to assist with the advocacy, is there anything further you want to add following her responses?

PN70

MR LEAN: No, no, we are quite happy with it.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me today including the undertakings given by the parties I am satisfied that the agreement meets the requirements of the Act necessary for certification. It is consistent with the no disadvantage test, it contains a dispute resolution provision, the operation of which the parties have clarified today and it is of a duration envisaged by the Act.

PN72

I will certify the agreement with effect from today. That certificate will be forwarded out to the parties within the next few days. The certificate will note the issues upon which the parties have given me undertakings and it will also identify the various issues that I have raised with the parties, but if the parties ever need to refresh their memories on the information they have given me they will need to have reference to the transcript of these proceedings. I trust the agreement will benefit both the employees and the employer and adjourn the matter accordingly.

ADJOURNED INDEFINITELY [11.43am]