AG2003/2745, Transcript of Proceedings [2003] AIRCTrans 1782 (15 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/2745

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Custom Packaging Pty Limited and Another for
certification of the Custom Packaging Pty Limited
South Australian Agreement 2003

ADELAIDE

2.53 PM, WEDNESDAY, 30 APRIL 2003

PN1

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

PN2

MR A. CHIZMESYA: I appear for the Printing Industries Association of Australia representing the company and with me, your Honour, is MR M. BALL, the personnel manager on my right and MR A. MACNEIL, the consultative committee representative from Custom Packaging.

PN3

MS J. SMITH: I appear on behalf of the Australian Manufacturing Workers Union and my friend has already introduced Mr MacNeil, the union delegate. May it please the Commission.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Smith and welcome, Mr MacNeil. Mr Chizmesya.

PN5

MR CHIZMESYA: Your Honour, the proposed agreement before the Commission is between the employees of Custom Packaging Proprietary Limited and the company which is Custom Packaging Proprietary Limited. It is an 170LK agreement under Part VIA, Division 2, of the Workplace Relations Act. The title of the proposed agreement is Custom Packaging Proprietary Limited Enterprise Agreement 2003.

PN6

The proposed agreement was negotiated by a consultative committee consisting of three elected persons acting on behalf of the employees and two persons representing the company. Mr Craig Larner, from the Australian Manufacturing Workers' Union attended consultative committee meetings. The employee representatives are Mr Andrew James MacNeil who filed a statutory declaration in this matter and who is present in the Commission today. Mr Peter Sharman, Mr Tony Lewis and Mr Craig Larner from the union. From the company, Mr Alan Desfontaines and Mr Malcolm Ball who is also present today.

PN7

Employees affected by the proposed agreement were notified of the intention to make the agreement by formal company notice of intent and that was issued on Tuesday, 11 March 2003. A copy of the proposed agreement accompanied the notice of intent. The content of the notice of intent is as follows. It is headed: Notice Custom Packaging Enterprise Agreement 2003. The text is enterprise agreement for Custom Packaging expires on 28 March 2003 and it is the company's intention to offer employees a new agreement to comment on 29 March 2003 and operate until 7 August 2004.

PN8

A wage increase of 3 per cent will be payable from the first full pay period on or after 29 March 2003 with a further 3 per cent wage increase payable 12 months from that date. Attached is a copy of the current agreement with clauses discussed with the consultative committee highlighted in a telex:

PN9

If you have any questions with this proposal please consult your consultative committee representative or your supervisor. You are advised if ...(reads)... registered with the Industrial Relations Commission.

PN10

Your Honour, I seek leave to tender a copy of that document.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Chizmesya, I will mark that as CP1.

EXHIBIT #CP1 CUSTOM PACKAGING NOTICE TO EMPLOYEES DATED 11/03/2003

PN12

MR CHIZMESYA: Your Honour, at all times the employees affected by the proposed agreement had access to further information about the content of the proposed agreement, if that was required, by the consultative committee representative or management. A confidential ballot was taken on Monday, 31 March 2003, 20 days following the issue of the notice of intent to make the agreement and the concurrent issue of a copy of the agreement. The result of the ballot is 18 yes, one no and one was absent. The total number of employees covered by the proposed agreement is 20. The confidential ballot paper included the following.

PN13

It is headed:

PN14

Confidential Ballot Paper Enterprise Agreement between employees at Custom Packaging Proprietary Limited Enterprise Agreement 2003. Please tick your response to each question.

PN15

The first question is - the first point is:

PN16

I understand the terms of the agreement.

PN17

and then a little block, yes and no. The second one is:

PN18

I agree to the proposed enterprise agreement.

PN19

Again a block, yes and no.

PN20

Three:

PN21

14 days notice of intention to make the enterprise agreement was given in writing.

PN22

Yes and no:

PN23

A copy of the proposed enterprise agreement was made available with the notice.

PN24

Blocks yes and no. The fifth point:

PN25

The above decisions were made of my own free will and without any duress.

PN26

Yes and no. The bottom line is:

PN27

Please fold and place in the ballot box as directed.

PN28

Your Honour, I seek leave to tender a copy of that ballot paper.

EXHIBIT #CP2 COPY OF CUSTOM PACKAGING EMPLOYEE BALLOT PAPER

PN29

MR CHIZMESYA: Sir, of the total number, the break down, in accordance with clause 5.5 of the statutory declaration is women seven, persons from non English speaking background four, under the age of 21 nil, Aboriginal and Torres Strait Islanders, nil, disabled persons nil, part-time employees nil and casual employees nil. As previously indicated, Mr Larner of the union attended the meetings of the consultative committee in this matter. The unions formally indicated that the union wished to be party to this agreement and I have a copy of the correspondence. Your Honour, that is dated 13 March 2003, it is addressed to Mr M. Ball, Personnel Manager, Gerard Industries, 12 Park Terrace, Bowden:

PN30

Dear Malcolm,

PN31

Headed:

PN32

Notice of intent to be part of Custom Packaging Agreement. Please be advised that the ...(reads)... Craig Larner, Regional Secretary AMWU Print Division.

PN33

Your Honour, I seek leave to tender that.

EXHIBIT #CP3 CORRESPONDENCE FROM AMWU TO MR BALL DATED 13/03/2003

PN34

MR CHIZMESYA: Your Honour, I might add there is no objection to the union being party to the agreement. The following steps were taken by the employer to explain the terms of the proposed agreement to the employees subject to it. There were meetings held with the consultative committee, information and details were conveyed to employees by their consultant committee representatives. Any questions relating to the proposed agreement were answered by a consultative committee representative or by management. Your Honour, I am instructed those employees listed as coming from non English speaking background all had sufficient knowledge of the English language to understand what the agreement was about.

PN35

Both Mr Andrew MacNeil, on behalf of the employees and Mr Malcolm Ball, on behalf of the company, filed statutory declarations in this matter. Your Honour, the proposed agreement is underpinned by the Graphic Arts General Award 2000, a Federal award. Clause 3 of the proposed agreement refers. Casual and part-time employees are also included in the agreement. The proposed agreement is ostensibly the same in content as the Custom Packaging Proprietary Limited Enterprise Agreement 2001 which was previously certified by the Commission except an addition of clause 18 which has been added. If the Commission pleases, I will deal with that later. Clause 5 of the agreement deals with the parties bound. Six, it is a single bargaining unit. Seven, the objectives of the agreement. Unless your Honour wishes me to go through it in detail - - -

PN36

THE SENIOR DEPUTY PRESIDENT: You can take it, Mr Chizmesya, that I read the agreement. I can foreshadow to you I have just got a few questions of clarification that I will direct to you later on but unless you want to refer me to specific provisions, you can be confident that I have spent my time and have read the document.

PN37

MR CHIZMESYA: Thank you, your Honour. I think that clause 9, the period of operation I should draw to your Honour's attention, this agreement shall operate from 29 March 2003 until 7 August 2004. The wage table is at clause 10 and the clause deals with the fact wage increase of 3 per cent, commencing from 29 March with a further 3 per cent increase - March 2003, with further 3 per cent increase being payable 12 months from that date is part of the agreement.

PN38

Your Honour, clause 18 is related to the Christmas annual leave payments and it is very short and the text is to maintain regularly of wage deposits into bank accounts during the Christmas close down period, annual leave in conjunction with public holidays will be paid into bank account weekly. All award and enterprise agreement provisions relating to the annual leave will continue to apply. That really is the only new clause since 2002 agreement plus the dates relating to the wages.

PN39

It is our submission notice of intent to make the agreement was served 14 days before the ballot and that provision has been met, a copy of the proposed agreement was provided with the notice of intent to all affected employees. The ballot was taken within the prescribed period, in fact it was 20 days, not 14. Employees subject to the proposed agreement were advised that they had access, if they so wished to have, an organisation of employees represent them.

PN40

The employer took all reasonable steps to ensure the employees subject to the proposed agreement understood its contents. The proposed agreement contains a dispute settlement procedure. The application to the Commission was filed within the prescribe 21 days. Accordingly, we respectfully invite the Commission to certify the proposed agreement. May it please the Commission.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Chizmesya. Mr MacNeil, do you have any specific issues you want to bring to my attention?

PN42

MR MACNEIL: No, it was fairly straightforward.

PN43

THE SENIOR DEPUTY PRESIDENT: Can I take it that you have agreed with everything that Mr Chizmesya has said?

PN44

MR MACNEIL: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: One final question for you, how were you and your two fellow employees selected such that you became the employee representatives?

PN46

MR MACNEIL: Just basically got all the employees together and just a show of hands. If anybody was interested, basically, wanted to be involved and then it was just selecting guys that were in more diverse areas rather than getting say - because there is certain department we wanted to get somebody from every area so basically just that way.

PN47

THE SENIOR DEPUTY PRESIDENT: Ms Smith.

PN48

MS SMITH: We seek an order pursuant to section 170M(3) of the Act that the Australian Manufacturing Workers' Union is an employee organisation bound by this enterprise agreement. We have several written requests by AMWU members who will be bound by the enterprise agreement requesting the AMWU to act as their bargaining agent and to seek an order to be bound to this enterprise agreement. Finally, Mr Larner has instructed that all the requirements of the Act have been compiled with and we request the agreement be certified. Thank you, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you. I have a couple of questions relating to the agreement. I will direct my questions to Mr Chizmesya but I need to make it clear to both Mr MacNeil and indeed to Ms Smith, if either of you want to comment on any of those matters, please feel free to do so. In the absence of a comment, I will take it that everybody is in agreement with the answers provided to me by Mr Chizmesya.

PN50

MS SMITH: Thank you, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: I need to make it clear also that my questions are not designed to trip up the process of certification but they reflect my desire to clarify issues now because it is always easier, in my view, to clarify them now rather than wait for an issue to become the subject of a future disagreement. Finally, the questions do not invite any of the parties to rewrite the agreement because my understanding is the document I have been given was the document that employees voted upon. My questions instead go to the intention underpinning the operation of particular clauses.

PN52

Firstly, Mr Chizmesya, if I can take you to clause 3 where the agreement purports to incorporate all previous site agreements negotiated between the parties. Can I take it the intention of the parties is that it effectively replaces or subsumes all previous agreements? I ask that question because the word "incorporate" could be taken as meaning that I need to read it in concert with all other agreements.

PN53

MR CHIZMESYA: I take your Honour's point there. It is intended that the 2003 agreement will replace all prior agreements and the immediate prior one is the 2001.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 10, page 4 of the document, is it possible, Mr Chizmesya, that the parties could provide me with an agreed wages schedule that sets out the rates of pay both at the time when the agreement is proposed to come into operation and indeed those rates as they will apply on 29 March 2004?

PN55

MR CHIZMESYA: Yes, your Honour, I'm able to tender a document.

PN56

THE SENIOR DEPUTY PRESIDENT: You are ahead of me. Thank you. Can I take it that is a document that has been shown to Mr MacNeil and/or Ms Smith so that it is able to be agreed?

PN57

MR CHIZMESYA: Ms Smith perhaps has not seen the document but Mr MacNeil has, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Smith, given that you haven't seen the document are you going to be in a position to comment on it today?

PN59

MS SMITH: Yes, I have just confirmed with Mr MacNeil that he has seen it and it is in fact correct, so I would support that.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you. You have circumvented my question to Mr MacNeil too. Thank you.

PN61

MR CHIZMESYA: Does your Honour wish to include that as a document?

PN62

THE SENIOR DEPUTY PRESIDENT: No, that document will simply be attached to the Commission's file. It is not part of the agreement as such, that is it wasn't part of the document voted upon by the employees, and accordingly I will simply retain it in the Commission's file should it become necessary to refer to it.

PN63

MR CHIZMESYA: Thank you, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Clause 11 of the agreement and in particular 11(j), is there a time frame for the achievement of those various goals and performance measurement criteria?

PN65

MR CHIZMESYA: No, your Honour, there isn't, it is an ongoing process, there's no time - - -

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 12 of the agreement, if I understand that clause correctly it provides for the opportunity for a day to be substituted in which case the public holiday would be worked as if it were a normal day.

PN67

MR CHIZMESYA: Yes. There is an alternative, your Honour, it be paid at time-and-a-half for hours worked, so there is an alternative to it.

PN68

THE SENIOR DEPUTY PRESIDENT: I see, at the election of the employee?

PN69

MR CHIZMESYA: Yes, that is my understanding, your Honour, yes.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 13 contains the words:

PN71

A casual employee who been continuously employed when he or she has worked the same days and hours as a weekly part-time worker.

PN72

How should I understand those provisions in the context of that clause?

PN73

MR CHIZMESYA: Well, if a casual employee works - for instance, if a full-time employee works the full 7.6 hours for the full week and a casual employee does the same, whether that be day work, afternoon shift or night work, then that is the definition - that brings it into the definition that they be full-time employee.

PN74

THE SENIOR DEPUTY PRESIDENT: I see. So that if I could paraphrase that in my words and you can tell me whether I've got it correctly understood, if over a 6-month period a casual employee has worked the same number of days and hours as a weekly time worker then the casual employee will be converted to become a weekly time worker?

PN75

MR CHIZMESYA: Yes, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Presumably then the casual loading would be removed?

PN77

MR CHIZMESYA: It would be, yes.

PN78

THE SENIOR DEPUTY PRESIDENT: What happens if the employee wants to retain that casual loading?

PN79

MR CHIZMESYA: Well, the onus would be on the employee. If they want to remain a casual, well, they remain a casual.

PN80

THE SENIOR DEPUTY PRESIDENT: I see. Thank you.

PN81

MR CHIZMESYA: That would be the alternative.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN83

MS SMITH: With respect, your Honour, that is not how the clause reads. It is quite mandatory, it says "shall become" and there is no - and that is what has been voted on, with respect, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Mr Chizmesya, Ms Smith is pointing out that there is a mandatory requirement and that employees have accepted that, is that argued?

PN85

MR CHIZMESYA: It may be a bad choice of wording, your Honour, but the intent is - and I take the point that the word "shall" could be - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Unless, of course, the casual - - -

PN87

MR CHIZMESYA: - - - mandatory but - - -

PN88

THE SENIOR DEPUTY PRESIDENT: Unless the casual argued that they were disadvantaged in which case the last sentence of the clause might take effect.

PN89

MR CHIZMESYA: Yes, your Honour. I am instructed that the wording came out of the old Federal Graphic Arts Award but notwithstanding I don't believe that it is a mandatory situation. A person wanting to stay a casual, I'm sure that - - -

PN90

THE SENIOR DEPUTY PRESIDENT: Well, perhaps if I will put the words again in my words. As I now understand what the parties are telling me it is that a casual employee who after a 6-month period has worked the same number of days and hours as a weekly time worker will generally become a weekly time worker unless that casual employee argues that the clause disadvantages them such that they wish to retain their casual status. Is that what you are saying?

PN91

MR CHIZMESYA: Your Honour, it would be my submission that your Honour has encapsulated it.

PN92

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Smith, are you happy with that?

PN93

MS SMITH: I can't speak nor put myself in the minds of the members who voted on that. I can only say that that is quite unambiguous and it says "shall".

PN94

THE SENIOR DEPUTY PRESIDENT: Mr MacNeil, your role in this regard assumes some importance. I'm endeavouring to ensure that I have correctly understood the intention of the parties with respect to clause 13. From an employee perspective is it fair to say that employees understand that casuals who after 6 months have worked the same number of days and hours as a weekly time worker would generally become a weekly time worker but that the capacity exists for the casual to argue that that arrangement would disadvantage them?

PN95

MR MACNEIL: I think it does but the argument to become is probably a little bit - - -

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, there's a presumption that the casual employee would become a weekly time worker unless that very casual argued against that. Yes, thank you.

PN97

MR CHIZMESYA: Your Honour, there is a limitation under the award which underpins itself, the casual employee can only be employed for 24 weeks, if my memory serves me correctly.

PN98

THE SENIOR DEPUTY PRESIDENT: Clause 15 of the agreement, can I take it that a day work employee is someone who is only working the hours set out for day work?

PN99

MR CHIZMESYA: Yes, your Honour, generally over a 5-day period of 7.6 hours.

PN100

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Chizmesya, can I refer you to clause 16 and just ask you to explain to me how the current shift system operates?

PN101

MR CHIZMESYA: Within the plant, your Honour, is that what you are asking?

PN102

THE SENIOR DEPUTY PRESIDENT: Yes.

PN103

MR CHIZMESYA: I think I would have to defer to Mr Ball on that, if I may.

PN104

MR BALL: I might defer to Mr MacNeil.

PN105

MR MACNEIL: What was the question again?

PN106

THE SENIOR DEPUTY PRESIDENT: I'm interested in the context of clause 16 how the current shift system operates.

PN107

MR MACNEIL: If I may, your Honour, when do you start and when do you finish?

PN108

MR BALL: Well, we start - a shift starts, normal day shift, from 7 to 3.06 but there is provision there for any adjustments if need be.

PN109

THE SENIOR DEPUTY PRESIDENT: So you would understand that the employer and the employees may agree to adjust that 7 am start back to a 6 am start in which case ordinary hours must conclude by 6 pm.

PN110

MR BALL: Yes.

PN111

THE SENIOR DEPUTY PRESIDENT: Indeed it could be adjusted back to a 5 am start.

PN112

MR BALL: We did that because at the time there was no air-conditioning so when it got hot we started early.

PN113

THE SENIOR DEPUTY PRESIDENT: Thank you. A final question, Mr Chizmesya, appendix A is the Gerard Industries corporate policy with respect to smoking. Can I take it that Custom Packaging are part of the Gerard Group?

PN114

MR CHIZMESYA: Yes, your Honour, yes.

PN115

THE SENIOR DEPUTY PRESIDENT: But they are a discrete entity in their own right?

PN116

MR CHIZMESYA: Discrete entity in their own right. There's Custom Press, Custom Packaging and Custom Cartons, all separate entities.

PN117

THE SENIOR DEPUTY PRESIDENT: I see. So that in the event that there was to be a change, for instance, in this no-smoking policy as it applies to Gerard Industries, is it the intention that appendix A would be updated accordingly?

PN118

MR CHIZMESYA: Yes, your Honour.

PN119

THE SENIOR DEPUTY PRESIDENT: Thank you. Presumably employees of Custom Packaging would have the opportunity to comment on that no-smoking policy as part of the policy development process?

PN120

MR CHIZMESYA: Yes, your Honour.

PN121

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr MacNeil, just from an abundance of caution can I take it that you are in agreement with everything that Mr Chizmesya has said?

PN122

MR MACNEIL: Yes.

PN123

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Smith?

PN124

MS SMITH: Yes, I adopt Mr MacNeil's - - -

PN125

THE SENIOR DEPUTY PRESIDENT: Thank you. I am satisfied that the agreement was reached through a process consistent with section 170LK of the Act so that employees were able to make an informed choice to vote in favour of the agreement. I'm also satisfied that the agreement itself meets the requirements of the no disadvantage test. I note the agreement contains a dispute resolution procedure and is of a duration envisaged by the Act. I will certify the agreement with effect from today. That certificate will be prepared and forwarded out to the parties some time within the next few days.

PN126

In accordance with the provisions of section 170M(3) of the Act I determine that the AMWU will be a party to the agreement. The information provided to me by the parties, in particular the wages schedule, will be attached to the Commission's file so that if ever it was required it would be available to the Commission and to the parties. In addition to that the parties will note that the certificate that is forwarded to them will identify the various issues upon which I have raised inquiries. In the event that the parties needed to determine what was said in relation to those inquiries you will need to go back and refer to the transcript of today's proceedings.

PN127

On the basis of the agreement that has been reached it is appropriate that I congratulate the employees, the AMWU and the employer on reaching this agreement and to express my wish that it operates to benefit all of the parties involved. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [3.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CP1 CUSTOM PACKAGING NOTICE TO EMPLOYEES DATED 11/03/2003 PN12
EXHIBIT #CP2 COPY OF CUSTOM PACKAGING EMPLOYEE BALLOT PAPER PN29
EXHIBIT #CP3 CORRESPONDENCE FROM AMWU TO MR BALL DATED 13/03/2003 PN34