AG2002/6719, Transcript of Proceedings [2003] AIRCTrans 220 (24 January 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT10145

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2002/6719

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by the Transport Workers' Union of Australia
for agreement with organisations of employees
(Division 2) re Shell Aviation Operations
Sydney Airport JUHI Agreement 2002

MELBOURNE

11.30 AM, THURSDAY, 9 JANUARY 2003

PN1

THE COMMISSIONER: Good Morning. I will take the appearances, please.

PN2

MS J. TISDALE: I appear for the Transport Workers Union.

PN3

MR STOOKE: I seek leave to appear on behalf of the Shell Company of Australia Limited.

PN4

THE COMMISSIONER: Leave is granted, Mr Stooke. Ms Tisdale.

PN5

MS TISDALE: Thank you, Commissioner. This is an application made under Division 2 of Part 6B of the Workplace Relations Act for certification of an agreement made under section 170LJ. All the requirements of the Act regulations and rules of the Commission have been met in the making of this agreement including that it was filed on time. The agreement meets the requirements of section 170LT of the Act in that it passes the no-disadvantage test. It was genuinely approved by a valid majority of relevant employees and the terms of the agreement were appropriately explained and extensively negotiated prior to a vote being taken. The agreement contains a dispute settlement procedure at clause 20 and anomaly expiry date of two years from certification at clause 3.2.

PN6

In relation to the no-disadvantage test, the agreement is underpinned by the Transport Workers (Oil Companies) Award 1998. The agreement imports its own classification structure, Commissioner, and it has within that classification structure a new classification for new employees and another classification for existing employees. The rate of pay that is provided for by the agreement for new employees is called Airport Operator Grade 1.

PN7

That rate is equivalent to the highest paid rate under the award which is the Senior Aerodrome Attendant Sydney. The rate of pay is $627.90 under both the award and the agreement. For the existing employees are classified at the Airport Operator Grade 2 and that rate of pay is significantly in excess of anything provided for by the award. So we would say that the agreement meets the requirements of the Act and seek its certification in the terms sought from today's date, if the Commission pleases.

PN8

THE COMMISSIONER: Could I just ask you a question about the potential - what does it refer to? Common hourly rate?

PN9

MS TISDALE: Yes.

PN10

THE COMMISSIONER: Could you just explain how that works to me, please. I mean, it seems to me that the agreement contemplates such a thing - - -

PN11

MS TISDALE: Yes.

PN12

THE COMMISSIONER: - - - but it doesn't actually say that a common hourly rate will be payable per se. It sort of deals with the situation where someone takes steps to institute a common hourly rate and prescribes the basis upon which such a common hourly rate is to be arrived at. Is that correct?

PN13

MS TISDALE: That is correct, Commissioner, but in my understanding there needs to be agreement before any employee can take up a common hourly rate. No, there needs to be a collective agreement from the employees to take up the common hourly rate and there is no agreement at this point in time but the agreement sets up how such a thing would work and be arrived at if that agreement was forthcoming.

PN14

MR STOOKE: Commissioner - - -

PN15

THE COMMISSIONER: Yes.

PN16

MR STOOKE: - - - it may assist if I could briefly speak to that.

PN17

THE COMMISSIONER: Go ahead Mr Stooke. Yes.

PN18

MR STOOKE: The common hourly rate concept is fairly widely used in Shell, as the Commissioner would be aware, particularly with terminals involving members of the NUW and the AMWU. The effect of a common hourly rate would be more in terms of the methodology of payment than change the income per se, given that the rate that would be factored in for penalty rates would be double time because these people are continuous seven day shift workers.

PN19

So it would be more of a convenience factor in terms of the option to go to a common hourly rate rather than changing any denominator as to the effect of the penalty rates and you will note in the option where the employees elect, and I stress the word elect, that it would be inclusive of all penalties and entitlements unless specifically exempted by the provisions contained herein which is the agreement itself. So from that point of view there is no - - -

PN20

THE COMMISSIONER: I am not greatly concerned about the effort bargain, if you like, to put it in its most general terms. Because - I understand what you are saying about that, that this is really a grossing up for the purpose of payroll management and an income continuity rather than actually negotiating a new effort bargain. It is really just the way in which the existing effort bargain is translated into remuneration for the purposes of payment.

PN21

MR STOOKE: That is correct. Yes.

PN22

THE COMMISSIONER: I understand that.

PN23

MR STOOKE: It is not an annualised salary where the scope of the work could be at difference with the remuneration.

PN24

THE COMMISSIONER: Yes. That is what I mean by it, an effort bargain.

PN25

MR STOOKE: The common hourly rate is a methodology - - -

PN26

THE COMMISSIONER: Yes, of payment.

PN27

MR STOOKE: Yes.

PN28

THE COMMISSIONER: Payment for what is already prescribed by the agreement.

PN29

MR STOOKE: That is correct.

PN30

THE COMMISSIONER: Not changes to the effort for the remuneration to be paid.

PN31

MR STOOKE: That is correct.

PN32

THE COMMISSIONER: I understand that. It is more a technical issue that I am raising. It just seems to me that that takes us to the last sentence in the provisions on - well, it is not paginated but where it says attachment to common hourly rate, paragraph 1 in the agreement. The last sentence refers to an attachment.

PN33

MR STOOKE: That is following agreement with the employees.

PN34

THE COMMISSIONER: That is what I imagined was the case. It is not an attachment that currently exists. It is one to be produced.

PN35

MR STOOKE: Yes.

PN36

THE COMMISSIONER: That is right. Now, for - - -

PN37

MR STOOKE: It is probably, Commissioner, more appropriate to characterise this provision almost as a leave reserve for the parties to elect that option and it has been a feature of the agreements at all the airports involving Shell Company of Australia.

PN38

THE COMMISSIONER: Yes. I don't have any concern about the inclusion of an ..... of this kind. I just want to clarify the technical issue as to how it is to comprise the agreement.

PN39

MR STOOKE: Yes.

PN40

THE COMMISSIONER: And the terms of the agreement which have been approved by the majority of employees is that there will be an attachment in the event that such an agreement is reached. It just seems to me that what I am interrogating is what is the meaning of an attachment and I think that what needs to be the case is that the parties need to give an undertaking that the implementation of an hourly rate will be the subject of an application to vary the agreement so as to incorporate the agreed attachment as one of the terms of the agreement.

PN41

MR STOOKE: I would be prepared to give that undertaking, Commissioner.

PN42

THE COMMISSIONER: Very well. Is that the case, Ms Tisdale. Yes, that is fine.

PN43

MR STOOKE: Thank you, Commissioner.

PN44

THE COMMISSIONER: I just want to obviate the possibility that it can be suggested the Commission certify agreement that are mutable during their life. We cannot do that. The concept of the legislation is the parties make an agreement for a specified period of time and they abide by it.

PN45

MR STOOKE: That is right.

PN46

THE COMMISSIONER: And we don't have industrial disputes because there are dispute settlement procedures required by the legislation to be incorporated into the agreement and we have certainty in our industrial relations. So that is the theory and those undertakings that you and the TWU have now given satisfy the legislative requirements that if this agreement is going to be varied, it will be varied in accordance with the Act.

PN47

MR STOOKE: Thank you, Commissioner.

PN48

THE COMMISSIONER: Very well. Thank you. Otherwise I am satisfied that the agreement meets the no-disadvantage test; has been arrived at in accordance with the procedures prescribed by the legislation and will issue an order of certification accordingly including reference to the undertaking given today concerning the implementation of any agreed hourly rate.

PN49

MR STOOKE: Perhaps for the record, Commissioner, I should concur with the submissions of my colleague.

PN50

THE COMMISSIONER: Very well.

PN51

MR STOOKE: Thank you.

PN52

THE COMMISSIONER: I will publish my decision and the order of certification provided directly to the parties by post. Thank you.

ADJOURNED INDEFINITELY [11.40am]