AG2003/3504, Transcript of Proceedings [2003] AIRCTrans 2120 (4 June 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 10389
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

AG2003/3504

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Multitech Australasia Pty Limited for
certification of the Multitech Australasia
South Australia Certified Agreement 2002

MELBOURNE

10.25 AM, MONDAY, 19 MAY 2003

PN1

MR J. HOY: I am from the Australian Industry Group appearing on behalf of Multitech Australasia Proprietary Limited.

PN2

THE COMMISSIONER: Thank you. There is no employee representative attending?

PN3

MR HOY: Unfortunately, I have not been able to locate the employee representative. I did make arrangements for him to meet me this morning, but he hasn't turned up. I am not aware of where he is at the moment.

PN4

THE COMMISSIONER: And also presumably the employer?

PN5

MR HOY: I did have instructions from the employer that they would not be attending, but they clearly informed me that the employee representative would be attending.

PN6

THE COMMISSIONER: Yes.

PN7

MR HOY: I note that the company does operate out of Breakwater at Geelong and the employee - and I understand there were two employee reps to attend. Whether they have been held up in traffic, I just don't know, Commissioner.

PN8

THE COMMISSIONER: I see; it is possible. Well, leave is granted for you to address me anyway. Would you like to do so?

PN9

MR HOY: Thank you, Commissioner. Commissioner, this is an application under division 2 of the Act for certification of an agreement made in accordance with section 170LK. The terms of the agreement were reached between the company and its employees as described in clause 4 of the agreement. I also ask for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21-day limit prescribed in section 170LM(2).

PN10

The agreement was approved by employees on 2 April, but was not filed until 30 April. The main issue that resulted in the delay, Commissioner, was the employee representative statutory declaration was incorrectly witnessed and had to be resubmitted to the employee representative for appropriate witness in respect to the statutory declaration and return to the AI Group and that resulted in the delay. There has been no change in employee numbers in the intervening period, Commissioner.

PN11

Parties have prepared statutory declarations which we believe meet all the requirements of the Act, regulations, rules of the Commission. The agreement, we submit, does not disadvantage employees covered by it and I will address the Commission at a later stage on that. As I said, a valid majority of employees genuinely approved the agreement on 2 April. Access to the agreement and an explanation of terms of the agreement occurred in an appropriate manner. It contains a dispute settlement procedure at clause 8. The period of operation of the agreement is set out in clause 2 where it is stated the agreement will expire three years from certification.

PN12

Commissioner, perhaps at this stage - there are a number of typographical errors in relation to the document that is before you, and I seek to hand up corrected pages that corrects those typographical errors.

PN13

THE COMMISSIONER: Yes.

EXHIBIT #M1 PAGES CORRECTING TYPOGRAPHICAL ERRORS

PN14

MR HOY: Commissioner, exhibit M1 contains three pages which relate to clauses - on the first page - 4 to 7 of the agreement, and on the second page 7.1 to 8.5, and the third page 11.3 to 15.2. Commissioner, the changes are in relation to on the first page clause 5.3 where it refers to a number of clauses that are to be incorporated into the agreement from the Metal Industry South Australia Award. In particular, it refers to clause 7, Absence from Duty. The reference really should be clause 7(f). Clause 8, Abandonment of Employment, should be clause 7(g).

PN15

The next alteration is in relation to clause 8.5 where the document before you has "All concerns shall conduct themselves with expedition", it should be "All concerned", and that is the alteration in M1. And finally, clause 15, Parental and Bereavement Leave, in the document that was tendered, Commissioner, it had subclauses 16(1) and 16(2) of clause 15 and that has been amended to reflect 15(1) and 15(2).

PN16

Commissioner, the company operates throughout Australia, and the reason for this application to have this agreement certified is that work for Western Mining Corporation at Roxby Downs and Olympic Dam to where this agreement is confined to, have a requirement that to tender for any such work the companies must have in place a suitable industrial agreement that covers the wages and terms and conditions of prospective employees or employees that may work at those sites.

PN17

The company has chosen to form a certified 170LK agreement and it is in line with a number of other agreements that have been approved by the Commission, and I can refer you to a sample of those. There were two approved by Senior Deputy President O'Callaghan, one on 1 February 2002 with Skilled Engineering and that was AG 813502, and another on 25 January 2002 for All Staff Resources and that is PR 913648. Similarly, Commissioner Foggo approved one on 10 January of this year for Ultra People Pty Limited and that is PR 926020, and you, yourself, Commissioner, approved on 11 September 2002 for Chelgrave Contracting PR 921954.

PN18

This agreement seeks to reflect the terms and conditions contained in that document. It does rely on the Metal Industry South Australia Award and I can hand up a copy of that award to the Commission.

PN19

THE COMMISSIONER: Yes, please.

PN20

MR HOY: The Metal Industry South Australia Award is somewhat reflective of the Metal Engineering Associated Industries Award. There are a number of clauses in there, as I said, that are incorporated into the agreement. You will note that the agreement is a stand-alone agreement, but it does also relate to other terms and conditions contained in the Metal Industry South Australia Award.

PN21

Commissioner, in particular, at clause 5.3, which I have already referred to, there is a number of clauses identified that are incorporated into the agreement. At 5.4 the agreement states that the award itself and a number of other awards are not incorporated or do not apply to employees covered by this agreement and that it is a stand-alone agreement.

PN22

My argument, Commissioner, is that an agreement can incorporate clauses from any award to set the terms and conditions of employment for employees. For the terms of determining whether it passes a no disadvantage test, an appropriate award needs to be identified. We have identified the Metal Industry South Australia Award, which I believe is a common rule award in South Australia. Section 170X of the Act identifies an award - or defines an award to also include a State award, so in that respect, Commissioner, we would say it meets the requirements of the Act.

PN23

And 170XA(2) states that on balance, a reduction in overall terms and conditions is the no disadvantage test. Now, we say the agreement provides for wage increases of 50 cents an hour for the first 12 months and a dollar an hour for employees with a longer period of service over and above the Metal Industry South Australia Award wage rates. Those wage rates are increased for safety net adjustments and employees under this agreement will always maintain the 50 cents or a dollar an hour differential over the award rates.

PN24

The agreement also at 9.8, Commissioner, applies the applicable penalty payments, loadings and additions contained in the clauses of the Metal Trades Award to be calculated on the basis of the wage rates in this clause. So therefore, Commissioner, it is not just the base rates in the Metal Industry South Australia Award, but it would also be calculated on the 50 cents per hour or a dollar per hour differential.

PN25

The penalty - clause 9.9, the penalty payments, loadings and additions referred to may be rolled up into a salary as provided in this agreement. And clause 10 identifies wages or salary packaging that may be entered into. However, the second sentence of clause 2.1 gives a commitment that such arrangements will not disadvantage an employee overall against the terms of this agreement and any applicable legislation.

PN26

The agreement includes provisions for annual leave, sick leave and parental and bereavement leave. It provides an allowance for vehicle usage and also provides for a rest and recreation provision in relation to where they are working in isolated sites, and Roxby Downs and Olympic Dam are isolated sites.

PN27

So we would say, Commissioner, overall that the agreement does pass a no disadvantage test and I would ask that you certify the agreement in the terms sought.

PN28

THE COMMISSIONER: Mr Hoy, Roxby Downs and Olympic Dam sites may be isolated, but clause 3 says "and work incidental thereto". Does that mean work incidental thereto at Roxby Downs and Olympic Dam? Clause 3.

PN29

MR HOY: It would be - yes, Commissioner.

PN30

THE COMMISSIONER: You see, I think clause 3 is rather unclear as to the identity of the single business or part of a single business, and that raises a question of jurisdiction.

PN31

MR HOY: The way I would read that, Commissioner, is that if there was work that had to be taken from the Roxby Downs or Olympic Dam sites to be worked on elsewhere, then that would apply to that work as well, but it wouldn't apply generally to any work in South Australia.

PN32

THE COMMISSIONER: So who are the employees covered and what work are they performing?

PN33

MR HOY: There are three employees covered. The company, on my instructions, has high pressure water blasting equipment that cleans metal structures, concrete floors, and then applies a coating surface to those structures as a protective coating.

PN34

THE COMMISSIONER: And they already have these employees employed and there is already an existing contract?

PN35

MR HOY: There is no existing contract for Roxby Downs or Olympic Dam. The employees currently operate in a variety of areas undertaking that work. There are three employees who undertake the use of such specialist equipment, and it is specialist equipment on my instructions, Commissioner.

PN36

THE COMMISSIONER: So why wouldn't it be more appropriate to have an agreement under 170LL if there is no contract? It is a greenfields agreement, isn't it?

PN37

MR HOY: Well, just query whether an employer and employee agreement can be a greenfields agreement, Commissioner.

PN38

THE COMMISSIONER: Well, yes, that is right, except that there are no employees for a contract at Roxby Downs or Olympic Dam.

PN39

MR HOY: There are employees if a contract is won, Commissioner.

PN40

THE COMMISSIONER: Yes. I think in clause 6 there is a bit of a variance with clause 3, isn't there? It is on the same point that I was raising with you.

PN41

MR HOY: Yes, yes.

PN42

THE COMMISSIONER:

PN43

Establish terms and conditions of employment for the company of its employees engaged to perform at those sites.

PN44

And that is not quite the same as 3, is it?

PN45

MR HOY: It is not, but - it could be clearer.

PN46

THE COMMISSIONER: At all sites in South Australia.

PN47

MR HOY: Yes. I think the identification is at these sites in South Australia, Roxby Downs and Olympic Dam.

PN48

THE COMMISSIONER: Yes. So under LK(7) the employer followed its duty to take reasonable steps to explain to all employees at the particular time?

PN49

MR HOY: That is correct, Commissioner, yes.

PN50

THE COMMISSIONER: How can I be satisfied as to the no disadvantage test? Just by way of example, there appears to be four weeks work cycles; why is it not the case that extra leave for continuous shifts and like entitlements are part of the existing conditions for the purposes of no disadvantage?

PN51

MR HOY: I am sorry, Commissioner, can you - - -

PN52

THE COMMISSIONER: Well, am I right in saying that the agreement and the work will entail four week work cycles including continuous shifts? Am I right or am I wrong?

PN53

MR HOY: Potentially, Commissioner, yes, yes. It is actually a five-week cycle.

PN54

THE COMMISSIONER: But it doesn't - - -

PN55

MR HOY: It is work for four weeks with the fifth week off.

PN56

THE COMMISSIONER: But it doesn't provide for extra leave for the continuous shifts or like entitlements.

PN57

MR HOY: Well, Commissioner, it does insofar as where the contract is over, say, a nine-week period, as I understand it there is a 13-day fortnight of 10 to 12 hours a day worked, so there is two fortnights within a four week. They have the fifth week off and paid provided that there is another four weeks of work to follow on from return from that rest and recreation period.

PN58

THE COMMISSIONER: Yes.

PN59

MR HOY: Now, when I say paid, that applies to full time employees. It does not apply to casual employees who would be picking up the casual loading.

PN60

THE COMMISSIONER: Just give me a moment. There is a very long list of levels of classification for three employees, is that right?

PN61

MR HOY: For the three - - -

PN62

THE COMMISSIONER: Or are there substantially increased number of employees proposed to be covered?

PN63

MR HOY: There is potential for extra employees. As I said, the three current employees operate the specialised equipment. The applying of the protective material can be undertaken by other less qualified employees who would be engaged on a casual basis. We are not talking big numbers, Commissioner. I mean, if you have only got three people that operate the specialised equipment, I would only imagine that they could be supplemented by maybe three or four additional employees.

PN64

THE COMMISSIONER: Thank you. Is there anything further you wanted to put to me in respect to this matter?

PN65

MR HOY: No, Commissioner, that concludes my submissions.

PN66

THE COMMISSIONER: Mr Hoy, I intend to reserve my decision and consider your submissions and the other materials and I will advise you in due course.

PN67

MR HOY: Thank you, Commissioner.

PN68

THE COMMISSIONER: This matter is adjourned.

ADJOURNED INDEFINITELY [10.45 am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 PAGES CORRECTING TYPOGRAPHICAL ERRORS PN14