AG2003/1251, Transcript of Proceedings [2003] AIRCTrans 1814 (16 May 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/1251

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the National Union of Workers, South
Australian Branch and Another for certification
of Kreglinger (SA) Pty Limited (Hide & Skin)
Certified Agreement 2002

ADELAIDE

9.34 AM, THURSDAY, 1 MAY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have some appearances please?

PN2

MR N. THREDGOLD: If the Commission pleases, I'm appearing on behalf of the National Union of Workers.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thredgold.

PN4

MR P. FITZSUMMONS: I'm appearing on behalf of Kreglinger (SA) Proprietary Limited.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Fitzsummons. Mr Thredgold, do you have the honours this morning.

PN6

MR THREDGOLD: Yes, I do, Senior Deputy President. Senior Deputy President, we are here - this is an application made pursuant to division 2 Part VIB of the Workplace Relations Act 1996 between the National Union of Workers and Kreglinger Australia Proprietary Limited. We seek to apply for an extension under section 111(1)(r) of the Act due to the employer's head office being in Melbourne and the Managing Director was interstate for a period of time and then had a period of time off due to a work related injury, so was unable to sign the document and get it back to us with the 21 days to lodge it. So we would as that the Commission exercise its discretion in granting an extension of time?

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Thredgold, were there any changes in the composition of the work-force during that time?

PN8

MR THREDGOLD: No, there was no change in the composition, if any change, the work-force was reduced in that time.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN10

MR THREDGOLD: The application was in relation to an agreement in writing about matters pertaining to the relationship between the employer Kreglinger Australia Proprietary Limited and a constitutional corporation and all persons who at any time when the agreement is in operation are employed in a part of a single business and whose employment is subject to the agreement. In accordance with section 170LJ the employer has made the agreement with one or more organisations of employees where each organisation has at least one member employed in that part of the single business.

PN11

The agreement was approved by valid majority of employees to be bound by the agreement and the employer made reasonable steps to ensure employees had excess at least 14 days before approval was given to the agreement in writing and the terms of the agreement were explained to all employees. Senior Deputy President, the agreement has been generally approved by the valid majority of employees. The terms of the agreement have been explained in accordance with 170LT section 7.

PN12

The agreement at clause 10 includes procedures for preventing and settling disputes and the agreement is due to expire on 17 December 2003. The parties therefore seek approval by the applicant pursuant to section 170LT.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thredgold. Mr Fitzsummons?

PN14

MR FITZSUMMONS: We are all in agreeance.

PN15

THE SENIOR DEPUTY PRESIDENT: You are in agreement with everything that Mr Thredgold has said?

PN16

MR FITZSUMMONS: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Can you confirm to me that there were no significant changes in the composition of the work-force over the period of the extension of time sort?

PN18

MR FITZSUMMONS: None whatsoever, there was one reduction in the work-force.

PN19

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Now, Mr Fitzsummons, I'm going to ask Mr Thredgold a number of questions about the agreement, please feel free to jump to your feet to express a view on behalf of the company because if you do not do so I will assume that you are in agreement with his responses to me. Thank you. Mr Thredgold, the questions that I'm about to ask are not directed at trying to disrupt or prohibit certification of the agreement, but as you would aware they reflect my practise of asking questions now rather than regretting that I didn't ask them at some stage in the future.

PN20

MR THREDGOLD: I understand, Senior Deputy President.

PN21

THE SENIOR DEPUTY PRESIDENT: Additionally, the questions that I'm asking do no invite a proposal to change the words in the document that was voted upon by the employees, I'm simply seeking clarification as to the intention of the parties. Can I take you to clause 3 of the agreement which references the award mentioned in clause 4. It gives rise to an element of confusion in my mind as to the intention of the parties.

PN22

Am I correct in assuming that the parties intend that the agreement will apply in addition to the provisions of the Storeman and Packers Skin Hide Wool and Produce Stores Award 2002, which is the simplified award, accept insofar as the agreement might be inconsistent with that award and accept insofar as there might provisions in the pre-simplified award, that is the 1979 award which were removed as a result of the simplification process but in relation to those provisions, the parties would still maintain those arrangements?

PN23

MR THREDGOLD: That is correct, Senior Deputy President.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. So it is not actually what that clause says, it seems to me to be a logical sort of conclusion otherwise you would simply be looking to apply the pre-simplified award and that would give rise to a question in my mind as to the status of any changes to that award since 1979?

PN25

MR THREDGOLD: Yes, Senior Deputy President, I suppose this is a simple roll-over of current agreement which we, due to the time that we are at, and due for renewal again at the end of the year, we have tried to keep it as simple as possible. I think what you are mentioning, we need to keep in mind for the next agreement and up date the wording to reflect what you are saying. But I agree with what you are saying, that is correct, we would apply the simplified award.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 5 references NUW members, this is an issue upon which I require a formal advice from both the union and the employer. Can I take it that employee representatives will be elected by employees irrespective of their membership of the NUW or indeed any other union?

PN27

MR THREDGOLD: That is correct.

PN28

MR FITZSUMMONS: That is correct.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you, and you can confirm that, thank you, Mr Fitzsummons. Clause 8.2.6 references the Annual Butcher's Picnic, can you help me out in terms of whether the intention to eliminate or to observe that picnic, the words seem to tie themselves up in knots in that regard?

PN30

MR THREDGOLD: Mr Fitzsummons might need to help me out there.

PN31

MR FITZSUMMONS: Well, actually the - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Mr Fitzsummons, do you have a copy of the agreement?

PN33

MR FITZSUMMONS: Not on me at the moment, no.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, what I will do is I will loan you a copy from the file that I have and we will extract it back from you at the end of the Hearing. You can see the words which need to be read in the context of the opening paragraph, it says:

PN35

That the following conditions and measures have been agreed and designed to achieve real and demonstrable gains in productivity, efficiency and flexibility.

PN36

We then get to 8.2.6:

PN37

Where the parties are committed to elimination and observance of the annual butcher's picnic.

PN38

Can I put it to you, you are either eliminating it or you are observing it and I would like to know which of the two you are doing?

PN39

MR THREDGOLD: No, we are eliminating - - -

PN40

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN41

MR THREDGOLD: - - - the day.

PN42

THE SENIOR DEPUTY PRESIDENT: Clause 8.5 which relates to leave reserved matters, Mr Thredgold, can I understand that whilst those listed matters might be the subject of discussions, the parties acknowledge that there will no industrial action on those issues for the life of this particular agreement?

PN43

MR THREDGOLD: We acknowledge that, Senior Deputy President.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 10 relates to the avoidance of industrial disputes. 10.3.1, .3.2 and .3.3 all reference the union, can I take it that the intention of the parties is that the employees could be represented by NUW or alternatively another union, or alternatively a person or representative of their choosing?

PN45

MR THREDGOLD: Yes, that is correct, Senior Deputy President.

PN46

THE SENIOR DEPUTY PRESIDENT: And indeed, Mr Fitzsummons, that is your view?

PN47

MR FITZSUMMONS: That is correct.

PN48

THE SENIOR DEPUTY PRESIDENT: And a final question relative to clause 10, the last provision in clause 10 talks of the reference of the matter to the Commission for determination. I'm assuming that the reference there is to the Australian Industrial Relations Commission and secondly, that the parties would intend that the Commission firstly try to resolve a dispute through a conciliation process with Arbitration as a last resort, is that a fair assumption?

PN49

MR THREDGOLD: That is a fair assumption.

PN50

THE SENIOR DEPUTY PRESIDENT: I should indicate there is no right or wrong answer, as long as you give me the same answer?

PN51

MR THREDGOLD: Yes, that is a fair assumption.

PN52

MR FITZSUMMONS: It is a fair assumption.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. And a final question in that regard, if I go to clause 11, can I presume then that those rates that are articulated in appendix 1 would in fact date from 17 December 2002?

PN54

MR THREDGOLD: That is correct, Senior Deputy President.

PN55

MR FITZSUMMONS: That is correct.

PN56

THE SENIOR DEPUTY PRESIDENT: Thank you, thank you. Well, thank you, Mr Thredgold. Let me say first of all, I will exercise the discretion provided for pursuant to section 111(1)(r) of the Act so as to extend the time frame for lodgement of the application pursuant to section 170LM(2) of the Act. In addition, I can advise the parties that I'm satisfied the agreement meets the requirements of the Act insofar as it contains a dispute resolution provision, the operation of which the parties have clarified today.

PN57

The agreement is of a duration envisaged by the Act and it does not on the basis of the undertakings given to me today, contain provisions which are contrary to the Act. The agreement meets the requirements of the no disadvantage test and it will be certified with effect from today. The certificate which will be forwarded out to the parties within the next few days, will identify the clauses upon which I have sought clarification from the parties, but should the parties need to refresh their memories on the extent of that clarification, you will need to have regard to the transcript of today's proceedings.

PN58

I wish the parties well in terms of this agreement and hope that it operates to benefit both the employer and the employees and that you do not need to give that dispute resolution clause any exercise at all. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [9.46am]