AG2003/2768, Transcript of Proceedings [2003] AIRCTrans 2412 (17 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/2768

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Armlec Pty Limited for certification of
the Armlec Pty Limited Enterprise Agreement
South Australia 2003

ADELAIDE

11.15 AM, FRIDAY, 30 MAY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, could I have some appearances, please.

PN2

MR S. PRIEST: I appear for the company in this matter. Appearing with me is MR J. CRICHTON and MR L. MOORE.

PN3

MR K. TROWBRIDGE: I'm representing the employees.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Priest?

PN5

MR PRIEST: Commissioner, the company in its application before you is a member of the National Electrical Communications Association which by that association makes them respondent to the National Electrical Electronic Communications Contract Industry Award of 1998 for the electrical workers covered by this agreement. We believe, sir, that the provisions as required by Part VIB of the Workplace Relations Act have been complied with as testified by the statutory declaration from the company and that signed by the employer representative, Mr Kym Trowbridge. Mr Trowbridge was elected as employee representative to act on behalf of other employees covered by this agreement.

PN6

The application made before you is under section 170LK of the Act and in accordance with the Act the employees were given a letter on 15 April 2003 indicating the company's intention to make the agreement, advising employees that if they were members of an organisation of employees that they could be represented by that organisation in the development of the agreement. I have a copy of that letter if you would like it.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

EXHIBIT #A1 LETTER TO MR TROWBRIDGE FROM ARMLEC PTY LIMITED DATED 15/04/2003

PN8

MR PRIEST: Sir, subject to this letter no employee made such a request. In relation to the specific requirements of the Act the agreement certainly does not disadvantage the employees covered by this agreement. The terms and conditions of the agreement have been explained and discussed with the employees extensively and as I understand it the employees have a very clear and precise understanding of the agreement. A valid majority of employees approve the agreement by way of a meeting held on 30 April 2003.

PN9

The agreement does contain in clause 11 a disputes settlement procedure that contains reference to the Australian Industrial Relations Commission's role in any dispute by way of conciliation and/or by way of arbitration and the nominal expiry date of the agreement is found in clause 8, period of operation termination and that will be 30 April 2005. To conclude, sir, it is my submission that the agreement before you is developed in compliance with the requirements of the Act, its contents satisfies the requirements of the Act and we seek therefore the Commission's certification of the agreement effective from today's date. If the Commission pleases.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Priest. Mr Trowbridge, rather than asking you to present a submission on the proposed agreement I'm going to ask you a few questions. Firstly, can you advise me of how it is you came to be elected as the employee representative?

PN11

MR TROWBRIDGE: Yes, there was a vote by all the employees. My name was put forward and I accepted it and they elected me as their representative.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Can you confirm to me that both you received the letter that I've marked as A1 and that to the best of your knowledge other employees received a similar letter?

PN13

MR TROWBRIDGE: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: Can you confirm to me that you are not aware that any employee sought the involvement of a union?

PN15

MR TROWBRIDGE: At the meetings there was nobody said they wanted a union involved, that is correct.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Trowbridge, I'm going to ask Mr Priest a few questions about the agreement. The questions that I'm asking are not designed to stop the agreement being certified. The questions do not invite Mr Priest to change the agreement but they go to the understanding or intention of the parties with respect to the agreement and they reflect my desire to clarify issues now rather than regretting at some future stage that I did not clarify an issue which then became the subject of a dispute. I will direct my questions to Mr Priest but if you disagree with any of the answers that he gives me then I would be expecting you to alert me to your concern in that regard.

PN17

MR TROWBRIDGE: I understand.

PN18

THE SENIOR DEPUTY PRESIDENT: If you don't disagree I will take it that you are in agreement with his responses. Mr Priest, can I refer you firstly to clause 7 of the agreement and simply seek to clarify, given the somewhat complex nature of the National Electrical Contracting Industry Award that the parties intend that allowances which might include the licence allowance, the service and maintenance allowance and installation allowances that are set out in that award will apply in addition to arrangements specified in this agreement.

PN19

MR PRIEST: The allowances in the award such as installation, service and maintenance are included in the all-purpose hourly rate set out in that award and I imagine that they would be included in the all-purpose hourly rate set out by John in this award. Allowances such as travel allowance and other special disability allowances and the like not covered by this agreement will be covered by the award.

PN20

THE SENIOR DEPUTY PRESIDENT: I see. So the wage rates as specified in the schedule attached to the agreement are intended then to incorporate any of the all-purpose payments that are established by the award and included as a result in table E of the award.

PN21

MR PRIEST: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: Can I clarify the reference to the single bargaining unit in clause 9 of the agreement? How many people were involved in the negotiation of the agreement?

PN23

MR PRIEST: It is my understanding that the company was represented by two from management and three employees.

PN24

THE SENIOR DEPUTY PRESIDENT: I must say I'm having a little difficulty reconciling that information with the information contained in the statutory declaration. It might be appropriate if I ask Mr Trowbridge to give me his understanding of how many people were involved in the negotiation of the agreement.

PN25

MR TROWBRIDGE: There were three employee representatives, myself and two others.

PN26

THE SENIOR DEPUTY PRESIDENT: I see. The employer was represented, I presume?

PN27

MR TROWBRIDGE: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Clause 11 on page 5 at point B of the procedure. Can I take it that the intention is that if the discussions between the employee and/or the site representative don't resolve the matter then at that point the issue might be referred to the company's consultative committee or alternatively the principal contractor might be involved in the discussions, but that those steps would be taken within 24 hours. Is that appropriate?

PN29

MR TROWBRIDGE: Yes. If the employee or site representative and the employer's site representative cannot reach agreement then within 24 hours the dispute will be referred to the enterprises consultative committee.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. With respect to step E in the process, because of the somewhat curious wording of that provision can I presume that the parties intend that the Commission would firstly try to resolve the matter by way of conciliation and that arbitration would be called upon only as a last resort?

PN31

MR TROWBRIDGE: Yes, yes.

PN32

THE SENIOR DEPUTY PRESIDENT: Clause 13 relates to apprentices. Can I refer you to the second paragraph in that clause. Perhaps before I ask the question it has just occurred to me that the employee representative may not have a copy of the agreement. I will ask my associate to loan her a copy of the agreement from the Commission's file and I will collect it back from you at the conclusion of the hearing, Mr Trowbridge. I'm simply anxious that you are able to follow the questions that I'm asking.

PN33

MR TROWBRIDGE: May I ask where we are up to in the - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, we are now looking at clause 13 which you will find at page 6. The second paragraph of that provision states:

PN35

The apprentices are under our/your jurisdiction and become our/your responsibility.

PN36

What do the parties intend by that statement?

PN37

MR PRIEST: It is my understanding that written from the company's perspective, it is just to reflect that it is not only the company's jurisdiction but the tradesmen's jurisdiction, and is the company's and the tradesmen's responsibility.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 14.2 with particular reference to the top of page 7. I must admit to a degree of confusion in this provision. The first paragraph on page 7 indicates that:

PN39

Where training is attended outside of normal working hours, no claim or payment for such time as spent at training shall be made. Where training is conducted during normal working hours, no loss of income shall result from such training.

PN40

It then continues to say that if the employee fails the relevant training course, they must pay for any re-tests or any fees applicable to performing the course again. Do I understand from that that if an employee has to sit a relevant training course, they would need to do so in their time?

PN41

MR MOORE: Sir, if I may assist the Commission, being one of the authors of this clause, that is exactly right. The training for an agreed course is an agreement between the company and the particular employee involved. If that training course is conducted during working hours, then obviously the company will pay the wages of that employee. If it is conducted outside of normal hours, then there will be no such payment or claim for payment for those hours spent.

PN42

In relation to if they fail the relevant training course, then the responsibility is on the actual employee to pay for any subsequent charges that may apply from the training provider to that employee. The company will not pay those added costs.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Moore. Am I also correctly understanding clause 14.3 such that the only time that an employee would be required to actually pay money to the employer would be in the event that the employee's employment was terminated prior to the nominal credit arrangement being repaid?

PN44

MR MOORE: That is correct, sir, but in fact there is a caveat to that - that if the employer terminates an employee, then no such payment will be made.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes. Clause 15 on page 8 indicates that the parties agree that the current arrangements for hours of work provisions may be altered during the life of this agreement for selected projects and work areas. Are the hours that are set out elsewhere in this agreement the current hours or what are the hours of work?

PN46

MR MOORE: If I may again, sir, the essence of the clause is that if, for example, the work pattern was from 8 to 4 and it was an established pattern, then it is able to be changed within the normal span of hours of the award to accommodate the project or whatever the work that had been undertaking.

PN47

THE SENIOR DEPUTY PRESIDENT: We might come back to that in a moment. The second paragraph in clause 15 references break times. Are those breaks paid for?

PN48

MR MOORE: The breaks are, yes - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN50

MR MOORE: - - - except for lunch.

PN51

MR PRIEST: The morning tea break is paid for but the lunch break is not paid for.

PN52

THE SENIOR DEPUTY PRESIDENT: I see, thank you. The second to last paragraph on that page 8 reads:

PN53

Where mutually agreed, the ordinary hours of work within the span of hours may be extended to, but shall not exceed, 12 hours on any one day during Monday to Friday.

PN54

If an employee commenced work at, say, 7 am and worked by agreement for 12 hours, then the employee would be finishing work after 6 pm, which is referenced in the second paragraph of that particular clause. The question that I have is whether or not the parties then intended to provide scope to extend those ordinary hours specified in the second paragraph of that clause by agreement so as to give effect to a possible 12 hour working day?

PN55

MR MOORE: That is certainly the intention, sir. In fact, you have just raised a point where I see there is an anomaly there in the wording. Certainly, the intent was that a person could work 12 ordinary hours per day. If that went beyond the scope of the designated 6 till 6, then that does create an anomaly in the wording but, certainly, the intention is that the employee is able to work 12 hours per day.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, Mr Trowbridge, because of the significance of that particular question, I am anxious that you share the same intention in terms of the operation of that particular provision.

PN57

MR TROWBRIDGE: Yes, I do. The intention was to have a standard 12 hour day within - that was to give a general scope of the hours of work that a person should work, that there wouldn't be any - like, night shift or anything like that would be out of the ordinary.

PN58

THE SENIOR DEPUTY PRESIDENT: I see, so where a 12 hour arrangement is worked under that sort of system, can I take it that the 12 hours in any one day would all be regarded as ordinary time?

PN59

MR PRIEST: No.

PN60

THE SENIOR DEPUTY PRESIDENT: Perhaps you could explain to me the arrangements that would apply?

PN61

MR MOORE: Correct me if I'm wrong, but as I see this, the way it is written, then if somebody worked a 12 hour shift, this would have to be between the hours of 6 and 6 - 6 in the morning till 6 at night. Was that the clear intention? I certainly wasn't part of the negotiations. I do know the actual clause's intent.

PN62

THE SENIOR DEPUTY PRESIDENT: I need to stress I'm not trying to create a dispute where there isn't one, but I am anxious that the parties share a common view as to the arrangement.

PN63

MR TROWBRIDGE: Well, the 6 to 6 was put in there so that that would be the general scope of the normal 8 hour day, so between 6 and 6 there would be the normal working day for an employee, and the overtime was going to be on top of that, I think, if that makes sense.

PN64

THE SENIOR DEPUTY PRESIDENT: So an employee would, for argument's sake, commence work at 6 am and work a 12 hour day, which would contribute to the 38 hour week so, presumably, they would not be required to work five 12-hour days in a given week unless it was part of a roster arrangement.

PN65

MR MOORE: Definitely not. Still 38 hours is the maximum ordinary hours per week.

PN66

THE SENIOR DEPUTY PRESIDENT: So if an employee is working a 12 hour day, then there would be a maximum of 3 such days in a given week within which the 12 hours could be worked as ordinary time?

PN67

MR CRICHTON: My understanding of the wording of that and as it is written that is 12 hours of, as they call it, ordinary hours. As you say, they may start at 6. It does not mean that is a 12 hour straight working. Within those 12 hours are the ordinary hours so you still do an 8 hour period. Those hours may stay at 6. They might stay at 8. Over those hours, it is unordinary so if you are asked to stay till 4, obviously you are going to be paid a different - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. I think you have clarified the issue. Clause 17 on page 9 notes in the first paragraph that the parties have agreed to consider the following measures. I'm not sure that I understand the intention of the parties in that regard, given that the following four paragraphs appear to outline quite specific requirements. Hence, I need some clarification as to whether or not the measures stipulated in clause 17 are measures which are agreed between the parties, or are they agreed to be considered. There is a wealth of difference between the two.

PN69

MR CRICHTON: It is an agreed measure, sir.

PN70

THE SENIOR DEPUTY PRESIDENT: Clause 23 on page 12 envisages that:

PN71

Wage rates in excess of the minimum wages afforded by this agreement may be negotiated with individual employees and recorded by written agreement between the parties.

PN72

Do I understand then that the employees who are party to this agreement appreciate that there might well be variations between the wages they receive and that the simple fact that one employee is receiving more than another would not form the basis for a claim under this particular agreement? That question probably goes more to Mr Trowbridge.

PN73

MR TROWBRIDGE: Yes. All the employees are aware that there is a different pay rate and scale, yes.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes. I'm wondering whether you might assist me, Mr Priest, in relation to clause 25 on page 12 - in particular to the second last paragraph. Can you indicate to me, in terms of the Green Card reference? I must say green cards in some countries assume a different characteristic which I presume the parties aren't referring to in this instance.

PN75

MR PRIEST: Actually, it is very similar, sir, the right to work. Being part of the construct of the green card with safer industries under WorkCover, the green card, sir, is a process in the building and construction industry where a designated training course is undertaken by all workers in the construction industry and from that there is a, if you like, generic induction program which all employees have currently been through and that includes all trades and non-trades where they receive a green card for their attendance at such course, and that green card has an expiry life, I think, of 2 years at the moment. That person does not then have to have an induction every time they go onto a construction site.

PN76

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 27 on page 13 references ..... or equivalent superannuation schemes. Can I presume that the choice of superannuation scheme is fundamentally a choice of the individual employee?

PN77

MR PRIEST: Yes.

PN78

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 28 refers to site allowances as determined by the contractual arrangements for the specific job site. Can I presume that those site allowances would apply over and above the hourly rate specified in appendix A of this particular agreement?

PN79

MR PRIEST: That is correct.

PN80

THE SENIOR DEPUTY PRESIDENT: Clause 33, and in particular the second paragraph in that clause, I presume that paragraph is, in fact, simply expanding on the provisions of the first paragraph, and clause 34.1.4 on page 15, what is the intention of that particular provision, Mr Priest?

PN81

MR PRIEST: 34.1.4 reads that all tools should be of an acceptable, agreed standard.

PN82

MR MOORE: If I may, sir, again being one of the constructors of this clause, it is in relation to the payment for loss of tools. The award provides a figure of some $400 for an employee who has lost their tools or had stolen tools in a certain set of circumstances. What this agreement does is actually replaces all the tools that an employee has as long as that employee provides a validated list to the employer. The employer validates that they have actually got those tools. If they are stolen, the employer will replace them.

PN83

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 34.6 on page 17 references casual employment. I didn't observe a provision relative to payment for casuals in the agreement. Is there such a provision or if not, then what is the intention of the parties with regard to payment for casual employees?

PN84

MR PRIEST: I think you are asking for an hourly rate for casual employees?

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, or at least some arrangement regarding payment for the casual employees.

PN86

MR PRIEST: Sure.

PN87

MR MOORE: I can talk to that because, again, I've been part of the construction of this clause. The actual casual employment makes no change to the award provisions of the 20 per cent rate.

PN88

THE SENIOR DEPUTY PRESIDENT: I see, so the intention is to adopt a 20 per cent payment?

PN89

MR MOORE: It is, and also the reason for the clause is to expand the number of weeks as prescribed by the award, which is 8, to a maximum of 16.

PN90

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 37 on page 18 talks of a minimum payment of $10 into a separate scheme. Can I presume that that minimum payment of $10 would be a $10 per week payment?

PN91

MR PRIEST: Yes, sir. We have identified this and clarified that it is $10 per week.

PN92

THE SENIOR DEPUTY PRESIDENT: Secondly, can I presume that the arrangement is intended to replace the relatively standard termination of employment payment provisions contained in the award?

PN93

MR PRIEST: Yes, in lieu of.

PN94

THE SENIOR DEPUTY PRESIDENT: The award contains that relatively common scale of payments, depending on the duration of an employee's service. I'm just anxious to know what the intention of the parties is in relation to that?

PN95

MR MOORE: If I may assist, sir, the award also provides that if a person has a contribution paid to a severance fund, that will offset the amount of liability the company has and this does the same.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Clause 38, who pays for the income protection insurance?

PN97

MR PRIEST: The income protection insurance will be paid by the company.

PN98

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 39.3 references heat. Can I understand that the intention there is to refer to that in the context of the inclement weather provision?

PN99

MR PRIEST: Yes, sir.

PN100

THE SENIOR DEPUTY PRESIDENT: You will be relieve to know you are nearing the end of my questions, Mr Priest. Can I take you to appendix A. Do I understand then that the rate of $21.50 as an hourly rate is the minimum rate that would be applied to any employee who would be classified within or under the award?

PN101

MR MOORE: Yes.

PN102

THE SENIOR DEPUTY PRESIDENT: Irrespective of trade, status or any other arrangement?

PN103

MR PRIEST: It is a grade 5, sir.

PN104

THE SENIOR DEPUTY PRESIDENT: So it would commence with the grade 3 employee or commence with a grade 5 employee?

PN105

MR PRIEST: It would - this rate is applicable to a grade 5, A class electrician and that is all they have at this establishment.

PN106

THE SENIOR DEPUTY PRESIDENT: A final question, or perhaps comment which needs to be made. I refer you to page 33, the signatory page of the agreement. I would observe that this page contains the statement:

PN107

I also understand that the details of any negotiated pay rates with Armlec Proprietary Limited remain strictly confidential and not to be discussed with a third party.

PN108

I would need to make an observation that if the agreement is certified, the document as such is not capable of being regarded as confidential. The parties understand that, I presume?

PN109

MR PRIEST: Yes, sir.

PN110

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Priest. Now, in an abundance of caution, Mr Trowbridge, can I take it that you are in agreement with all of Mr Priest's responses?

PN111

MR TROWBRIDGE: Yes, I am.

PN112

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of that information, together with the material contained in the statutory declaration, I am satisfied that the requirements of section 170LK have been met. Additionally, I am satisfied that the agreement was endorsed by a valid majority of the employees, and that it meets the requirements of the no disadvantage test. I am also satisfied the agreement contains the necessary dispute resolution provision, and is of a duration envisaged by the Act. Accordingly, the agreement will be certified with effect from today's date.

PN113

The certificate will be forwarded out to the parties within the next few days. The certificate will identify the various clauses upon which I have sought clarification from the parties. It will not detail the answers to the questions I raised, nor indeed the detailed question. Should the parties ever need to refer back to the questions and the answers given to me, you will need to have regard to the transcript of today's proceedings. I would take this opportunity to congratulate the parties on reaching this agreement and express my hope that it benefits both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [11.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER TO MR TROWBRIDGE FROM ARMLEC PTY LIMITED DATED 15/04/2003 PN8