AG2003/1252, Transcript of Proceedings [2003] AIRCTrans 1876 (21 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

AG2003/1252

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Seasonair Pty Limited and Another for certification
of the Seasonair Pty Limited On Site Construction
Enterprise Agreement

ADELAIDE

9.35 AM, TUESDAY, 6 MAY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, good morning, could I have some appearances, please?

PN2

MR K. BLEECHMORE: I am from AMCA of South Australia Incorporated representing Seasonair Proprietary Limited.

PN3

MR M. SUTTER: I appear on behalf of the CEPU Plumbing Division.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bleechmore.

PN5

MR BLEECHMORE: Thank you, your Honour. Your Honour, with pleasure I present to you today - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Perhaps I will interrupt you for a moment, Mr Bleechmore. Mr Sutter, please feel free to take a seat. You only need to stand when you are saying something.

PN7

MR SUTTER: Okay, thank you.

PN8

MR BLEECHMORE: It gives me pleasure to present to you the enterprise bargaining agreement for Seasonair Proprietary Limited. This agreement has been entered into by the company, its employees and the CEPU. The company had their initial meetings and presented with a draft framework agreement in approximately November last year but received final copies and agreed to the format that they would have in late January of this year. The final meeting conducted with their employees was on 17 March at which the employees voted to accept the agreement and the company has now signed the relevant statutory declaration and they have been submitted with the application.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bleechmore. Mr Bleechmore, just one question on the process. Can you affirm to me that the employees had access to the proposed agreement in writing at least 14 days before they voted in favour of it?

PN10

MR BLEECHMORE: Certainly, your Honour, in fact they had exposure to drafts of the agreement from January and the one that was presented in January and early February has not changed. So they had the minimum of 14 days.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Sutter, is there anything that you want to say to me on this matter?

PN12

MR SUTTER: No, not at this stage, Commissioner.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Sutter, I'm going to address a number of questions to Mr Bleechmore. Please feel free to jump to your feet if you wish to respond on behalf of the union. If you don't respond I'll assume you're in agreement with Mr Bleechmore. I should indicate to you that my questions are not designed to trip up the process of certification but rather reflect my desire to clarify issues now instead of regretting that I didn't do so at a future time.

PN14

MR SUTTER: I understand, not a problem.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Bleechmore, clause 1 of the agreement proposes that the agreement be known as the Seasonair Proprietary Limited Enterprise Agreement. The title page talks of it being an on site construction enterprise agreement and the statutory declaration gives it yet another title. What title do the parties propose to give to the agreement?

PN16

MR BLEECHMORE: Certainly, your Honour, this is an issue that we have raised previously. It is certainly the intent that this becomes the Seasonair Proprietary Limited On Site Construction Enterprise Agreement because with the relevant union that they have entered into with this process only represents their on site construction personnel.

PN17

THE SENIOR DEPUTY PRESIDENT: I see. The wages clause 7.1 references an appendix 1. Can I take it the parties intended to reference appendix 4?

PN18

MR BLEECHMORE: Correct, your Honour, and in fact a consistent typographical error which, because of the date of submission of this we were not able to alter.

PN19

THE SENIOR DEPUTY PRESIDENT: Clause 9 references appendix 2. I take it that reference should be to appendix 1.

PN20

MR BLEECHMORE: Correct, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Clause 10 references appendix 3 and I take it that should be appendix 2.

PN22

MR BLEECHMORE: Correct, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Clause 18 talks of rates for apprentices. They are not in the relevant appendix. Are there apprentices, either covered or to be covered, by this agreement?

PN24

MR BLEECHMORE: Your Honour, my understanding is that if Seasonair did take on apprentices they would be. At this stage they do not have any apprentices and I would ask that - and certainly it was an error my part - that when we did these documents the apprentice clause was not there. Could I ask that be presented for submission? I don't have a copy with me at the moment.

PN25

THE SENIOR DEPUTY PRESIDENT: Very well. So what you suggest - - -

PN26

MR BLEECHMORE: Currently they do not have any apprentices.

PN27

THE SENIOR DEPUTY PRESIDENT: What you are suggesting to me there is that I simply attach to the Commission's file a proposed set of rates for apprentices which the parties agree would be followed in the event that apprentices were employed.

PN28

MR BLEECHMORE: Certainly, your Honour, and I will forward a copy of that apprentice wage rate that would ever be used certainly within the next day.

PN29

THE SENIOR DEPUTY PRESIDENT: Clause 20 refers to the company's quality policy. Is that policy documented?

PN30

MR BLEECHMORE: Yes, your Honour, the company has a quality policy because they require that to get pre-qualification under a different regime. They do have a company policy and it is - sorry, a quality policy - and it is widely distributed within the company.

PN31

THE SENIOR DEPUTY PRESIDENT: Can I take it that the parties agree that policy may be changed from time to time but would still be referenced in its most recent form by that clause 20?

PN32

MR BLEECHMORE: The issue of quality of course is an ongoing one and I would expect that the company would agree to that and so would the employees.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 24 gives rise to two questions. Firstly, can I presume that where the company supplements its existing mechanical services employees with employees from other companies they would be engaged under this agreement?

PN34

MR BLEECHMORE: Correct, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Secondly, can I assume that if the company is running short of work and places its existing employees with another business the employees' entitlements with respect to redundancy are preserved?

PN36

MR BLEECHMORE: Correct, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: I would note that clause 26 is effectively a non-enforceable provision but can I assume then that it simply reflects the employees' concerns about financial security and payments?

PN38

MR BLEECHMORE: That's quite correct, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Can I assume that with respect to clause 29 an alternative, or comparable, income protection policy would be available at the employer's discretion and would be at minimum reflective of the same employee benefits as the IUS scheme?

PN40

MR BLEECHMORE: That is the intention, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 31 references the paid picnic day. I understand from other agreements that the parties intend that that picnic day would be available to employees irrespective of union membership and is simply based on a requirement that employees attend the picnic day.

PN42

MR BLEECHMORE: That's correct, your Honour. The intent is that there is a built-in industry picnic day available on that day and that the employees to be paid would need to attend either the building industry picnic day or some other company organised event.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you and the final question relevant to appendix 1, the steps 3 and 4 of that dispute settlement procedure reference the union. Can I assume that the - or can I ask perhaps more effectively - both the union and the employer to give me an undertaking to the extent that an employee can be represented by any union or indeed, any person of their choice, in order to resolve a dispute?

PN44

MR BLEECHMORE: Certainly, your Honour, the employee can call upon any assistance they require. We have found the custom and practice is that it is normal for them to seek assistance from the union to which they belong, or if they don't belong to a union, then to some other recognised party.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Sutter, are you in a position to give me a similar undertaking in that regard? That is that I shouldn't assume that the references to the union in that regard constitute in any way a requirement that people either become or remain members of your union and can be represented by a union of their choice or a person of their choice?

PN46

MR SUTTER: Well, Commissioner, we would prefer them to come to our union of course, but they have got a free choice. It's not a problem.

PN47

THE SENIOR DEPUTY PRESIDENT: I've no doubt that the service you provide is such that they would be very much inclined toward doing that but I'm simply seeking to ensure that the freedom of association provisions in the Act are complied with. Thank you. Yes, thank you, Mr Bleechmore.

PN48

MR BLEECHMORE: Deputy President, before we go, I would flag to you clause 33, which unlike some other agreements has some company specific issues which demonstrates very clearly that this company has entered into this agreement with their employees with certainly an intention to ensure that there is some benefit from this enterprise bargaining process and it seems to have worked extremely well in this case.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, that's quite a remarkable event, Mr Bleechmore, but I am actually used to looking at certified agreements that are based entirely on company or employer specific arrangements. So I congratulate this employer on breaking out of the mould and hope that that arrangement suits both the employer and his or her employees.

PN50

MR BLEECHMORE: I am sure we will see more of it.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I am satisfied that the agreement meets the requirements of the Act such that it was reached by employees operating on an informed basis. I am also satisfied that the agreement is consistent with the Act in terms of its duration and the existence of dispute resolution procedures, the operation of which the parties have clarified this morning. The agreement is consistent with the no disadvantage test. I propose to certify the agreement with effect from today.

PN52

The certificate, however, will not be forwarded out to the parties until such time as I receive the information relative to apprentices, which information will be attached to the Commission's file. The certificate, when it is received by the parties, will note that there were various issues raised. Should the parties require specific information about the detail of those matters you will need to have reference to the transcript of today's proceedings.

PN53

MR BLEECHMORE: Thank you, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: That concludes this matter other than once again reaffirming my congratulations to Seasonair and its employees on having matters particular to Seasonair in a Seasonair agreement. I trust that the agreement operates to benefit both the employer and the employees and adjourn the matter accordingly.

ADJOURNED INDEFINITELY [9.50am]