AG2003/3235, Transcript of Proceedings [2003] AIRCTrans 1644 (1 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/3235

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT TO REMOVE
AMBIGUITY

Application under section 170MD(6) of the Act
by Bridgestone TG Australia Pty Limited and
Another re clause 8C(11)

ADELAIDE

4.30 PM, TUESDAY, 15 APRIL 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. Could I have some appearances, please?

PN2

MR D. EY: If it please the Commission I seek leave to appear for the employer and I have with me MR TREVOR STEVENS, Employee Relations Manager.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Ey.

PN4

MR C. FIELD: Sir, I appear on behalf of the

PN5

Australian Liquor, Hospitality and Miscellaneous Workers Union and with me is the shop steward from the plant and for the LHMU, DEREK MIKOLAJCZAK.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Field. Mr Field, do you have any objection to Mr Ey's application for leave to appear in the Commission?

PN7

MR FIELD: No objection, sir.

PN8

THE SENIOR DEPUTY PRESIDENT: Very well. I grant that application, Mr Ey.

PN9

MR EY: Thank you, sir.

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Ey?

PN11

MR EY: Sir, this is a joint application by the company Bridgestone TG Australia Pty Ltd and the Australia Liquor, Hospitality and Miscellaneous Workers Union, both of whom are parties to the subject agreement which is the Bridgestone TG Australia Pty Ltd Certified Agreement 2001. That agreement was certified on 9 August 2001 by Commissioner McCutcheon, print number PR907562.

PN12

Sir, an issue has arisen in relation to the appropriate rate of shift loading payable to employees, in particular the production area or areas known as sun-visor, blow moulding and VY static line steering wheels and the employees that we are speaking of are in positions in relation to which the LHMU has coverage and the situation that gives rise to the issue is this.

PN13

If the company operates a three-shift operation: day, afternoon and night shifts in that area or areas and where an employee requests to be allowed to work night shifts only instead of the normal arrangement whereby the employee and all others would rotate between day, afternoon and night shifts and where the company accedes to that request, what shift rate is payable.

PN14

Is it 30 per cent or 15 per cent of the rates prescribed in the subject agreement? The agreement does not specify which rate is to apply. It was always the intention of the parties to the agreement that in any given situation the correct shift rate to apply ought to be readily ascertainable. So the parties submit, sir, that there is an ambiguity or uncertainty or both on this particular issue of the kind referred to in section 170MD(6) of the Workplace Relations Act 1996.

PN15

The parties to the application have consulted with each other and in turn Mr Field informs me that he has consulted with the employees concerned and he can elaborate on that should you wish to hear from him, sir, and the parties have agreed that the ambiguity or uncertainty can be completely removed if the subject agreement is varied in the manner sought in the application, that is by inserting a clause in the form of the annexure to the application.

PN16

The parties jointly submit that the insertion of this clause will remove the ambiguity because as I submit is readily obvious, sir, the clause is simple to understand. It defines the work area in question. It defines the factual circumstances that it relates to and it clearly provides that in those circumstances the shift loading shall be 15 per cent and not 30 per cent.

PN17

If the variation is not made, sir, there will be ongoing ambiguity and uncertainty until this agreement is superseded by another agreement. Its nominal expiry date is 30 June 2003. So for these reasons, sir, the parties submit that the Commission should exercise its discretion to make the variation sought. Those are our submissions, sir.

PN18

THE SENIOR DEPUTY PRESIDENT: Mr Ey, just before you take your seat can I clarify one issue with you?

PN19

MR EY: Yes, certainly.

PN20

THE SENIOR DEPUTY PRESIDENT: It may be a question that I'm raising simply from an over-abundance of caution but can I refer you to clause C16 in the relevant agreement?

PN21

MR EY: Yes, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Which if I've got my numbering correctly simply says: clauses 39, 40, 41, 42 and 47 as contained in the Plastics, Resins, Synthetic Rubbers and Rubbers Bridgestone Award Consolidated 1998 as at 31.12.1998 will apply for the life of this agreement for all parties to the agreement. Have we got the same clause reference?

PN23

MR EY: Yes, I'm following that, sir.

PN24

THE SENIOR DEPUTY PRESIDENT: I thought it appropriate that I just ask you to comment on the extent to which that statement which is not accompanied by a statement which is commonly found in agreements to the effect that the award provision applies unless the agreement operates in a fashion which is inconsistent with the award.

PN25

MR EY: Yes, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: Might create a potential for the maintenance of this ambiguity or uncertainty, given that if I understand this dispute correctly, the parties have disagreed about what that award actually does establish.

PN27

MR EY: That is correct, sir.

PN28

THE SENIOR DEPUTY PRESIDENT: That clause invokes the award. The proposed new clause 8C establishes a different provision to that which might be in dispute relative to the award. I'm very happy for you to think on it while I hear from Mr Field but I thought it appropriate that I flag that potential concern to you.

PN29

MR EY: Yes. If I've got the numbering right, sir, the clause in the award which stipulates shift rates is clause 35.

PN30

THE SENIOR DEPUTY PRESIDENT: I see, right.

PN31

MR EY: Which is not one of the clauses mentioned in subparagraph 16 of the clause of the agreement that you were referring to. So it may be that I'm missing the point that you are making, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: No, that is fine. If it is a different clause in the award, that would resolve the problem that I'm alluding to.

PN33

MR EY: Perhaps Mr Stevens can tell me if I'm right about that. I'm looking - well, what I'm saying is based on the 1999 version of the award.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, you see that is where we might have our confusion in that this clause appears to reference a 1988 version.

PN35

MR EY: The '88 version. I'm sorry, that is right. In the 1988 version - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Look I'm happy to leave you and Mr Stevens to ponder upon the question that I've raised while I hear from Mr Field.

PN37

MR EY: Yes. I think we can deal with that, sir. So we will return to that.

PN38

THE SENIOR DEPUTY PRESIDENT: All right, thank you.

PN39

MR EY: Thank you.

PN40

THE SENIOR DEPUTY PRESIDENT: Mr Field?

PN41

MR FIELD: Thank you, sir. I concur with the remarks made by David Ey on behalf of the company regarding this matter. I can advise that following the Commission hearing on 7 April before you that I held meetings with the relevant members affected by this matter on the 8th and it was unanimous that we resolve the problem in the manner contemplated today before you by variation to the agreement and in particular members were concerned that the proposed variation to the agreement would be from 7 April to the completion of the agreement and not retrospective.

PN42

On the matter of clause 16 of the current certified agreement, I will just comment that we saw the relevant clause there in the original dispute was clause 47 which was the introduction of change clause and to my knowledge there are clauses in there specifically about rates of pay.

PN43

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN44

MR FIELD: If the Commission pleases.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ey? Mr Field may well have given me the answer that I was seeking.

PN46

MR EY: Thank you for that opportunity.

PN47

THE SENIOR DEPUTY PRESIDENT: But you can have a chance at another bite at any rate.

PN48

MR EY: I don't disagree with what Mr Field has says but perhaps by way of further elaboration, the 1988 version of the award which is referred to in the subparagraph 16 of the agreement, the clause of that award that dealt with shift rates was number 17 and therefore nothing in that subparagraph 16 picks up that shift rates clause. So I think I can assure you that this variation if it is made as sought will completely remove the uncertainty and ambiguity.

PN49

THE SENIOR DEPUTY PRESIDENT: Very good, thank you.

PN50

MR EY: Thank you, sir.

PN51

THE SENIOR DEPUTY PRESIDENT: I'm satisfied that the application has been made by the employer who is a party to the Bridgestone TG Australia Pty Ltd Certified Agreement of 2001. I'm satisfied that the parties have correctly identified the issue as an ambiguity or an uncertainty. In this regard unless the agreement is varied, I'm concerned that there exists the potential for ongoing disputation, the potential for the disruption of arrangements that would otherwise work quite effectively and to the benefit of both the employees who were involved in various shift arrangements and the employer who required those shifts to be performed.

PN52

I note that the parties have agreed that to the extent that they are in disagreement over the appropriate rates to be applied from a retrospective basis, then the parties have agreed that that is a matter that should be pursued through the courts if it is to be pursued. I am satisfied that the proposed variation to clause 8C of the agreement is an appropriate variation in that it resolves this ambiguity or uncertainty and it establishes an arrangement that has been considered by both the employees to be covered by it and the employer.

PN53

I will make the order giving effect to the variation of the agreement in the terms proposed in the attachment to the application. I'm aware that the parties have proposed a date of 7 April as a possible date for the operation of that variation. I'm inclined though to make the variation with effect from today. It is after all today that I've determined that an actual ambiguity or an uncertainty exists and I do not consider it appropriate to make an order on a retrospective basis, notwithstanding that it is clear that there were discussions to this effect at an earlier time.

PN54

On that basis the order will operate from today's date and it will be issued to the parties some time in the next week or so and it will operate for the term of this particular agreement. I think it probably appropriate that I congratulate the parties on reaching a common sense solution to an issue that could have plagued them for some time. Both groups showed, I believe, commendable commitment to a practical solution that hopefully will benefit both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [4.45pm]