AG2003/5434, Transcript of Proceedings [2003] AIRCTrans 3021 (16 July 2003)

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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

AG2003/5434

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Carter Holt Harvey Packaging Pty Ltd and
and Another for certification of the Carter
Holt South Australia Enterprise Agreement
2003/2006

ADELAIDE

9.55 AM WEDNESDAY, 2 JULY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have the appearances, please.

PN2

MR N. GOLD: I appear for Carter Holt Harvey.

PN3

MR F. LARNER: I appear as Regional Secretary for the print division AMWU.

PN4

THE SENIOR DEPUTY PRESIDENT: Who is going to open the proceedings this morning? Mr Gold, do you have that honour?

PN5

MR GOLD: I believe, Senior Deputy President, I do. I do not intend to actually wax poetic for too long, simply say an agreement has been reached. It is a 3 year agreement covering a range of issues. The substantive change to our previous agreement being obviously the pay increases and the introduction of this skills recognition development program although it is actually a rebadged process that we ran once before but are now making a lot more sense.

PN6

The one thing I will point the Commission's attention to is on page 23 of the agreement, clause 29, which is allowances, there is a rate mentioned for first aid allowance and for meal allowance. That rate on 29.1 was $9.10 for meal allowance, subsequently to this being voted on, been an increase in the Graphic Arts Award so that $9.10 would now be $9.35, that is consistent, as I said because it does vary from time to time in the Graphic Arts General Award. The same issue, different amounts, applies to clause 29.2, first aid allowance. It was $10.65, that has gone up to $11. Both of those are operative from the first pay period on or after 21 June this year.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Gold, I will note the intention of the parties to increase those amounts but I am not going to change the document which was voted upon by the employees.

PN8

MR GOLD: So long as we have it on the transcript we are all happy and we all know what our intentions are so quite happy with that.

PN9

THE SENIOR DEPUTY PRESIDENT: By the time this hearing is concluded we might have a couple of other issues on transcript too.

PN10

MR GOLD: With those words said, there is nothing further I have to tell you.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Larner.

PN12

MR LARNER: Upon hearing from Mr Gold, I would seek the certification of the Carter Holt agreement upon the information provided to me also from my delegate, Kevin Murray.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Larner. Mr Larner, I am going to direct a few questions to Mr Gold. You would be aware from previous experiences, my questions are not going to be inviting Mr Gold to redraft the agreement. They simply go toward clarifying issues of intention underpinning various provisions in the agreement and reflect my desire to do so now rather than wait for those issues to possibly arise in a different forum. If you disagree with any of Mr Golds' responses, then please jump up and tell me because otherwise I shall take your silence as assent.

PN14

Mr Gold, can I refer you first of all to clause 3. It appears to be expressing, what I think is a relatively simple concept in a complicated away. Can I take it that the intention of the parties, expressed in that clause, is that the agreement and the award should be read together. Where the agreement and the award are inconsistent, the agreement prevails except insofar as wages and allowances type issues where the amounts, as you have already indicated in terms of page 23 of the document, might apply such that the award is preferable rather than the agreement.

PN15

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

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN17

MR LARNER: Commissioner, may I bring to your attention clause 2, I have spoken to the company, seems to be a typographical error that reflects the 1995 award when the intention is for the 2000, as in clause 1.

PN18

THE SENIOR DEPUTY PRESIDENT: Very well. Clause 11.5(f), at the bottom of page 8, talks of the development of a pay system that takes various criteria into account. Is it intended to develop that pay system during the life of this agreement and if so, then is it the intention of the parties that if there is to be a variation of payment or classification structure then that would be achieved by way of a variation to this agreement?

PN19

MR GOLD: The answer to that - I will answer the second part first, which is, yes, if we got to the point where we had a new classification system, then we would seek to vary the agreement. The first part, will it happen in the life of this agreement? This is actually, if you like, a carry over clause from the last two times I think we have had this agreement and I think there has been ongoing discussion about how we do it and part of the clause I referred to in my opening of the Skilled Recognition and Development Program starts to deal with that. Whether that will happen over the next 3 years or not I would not want to absolutely say it will but we will certainly be having those discussions over that time.

PN20

THE SENIOR DEPUTY PRESIDENT: Very well.

PN21

MR LARNER: From my delegate, his view is similar to Mr Golds' and that is it is their understanding the wages that would apply during the life of the agreement are set out forthwith in clause 22, under skills recognition.

PN22

THE SENIOR DEPUTY PRESIDENT: Clause 19.4, page 13 - do you have that page, Mr Larner?

PN23

MR LARNER: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: Indicates, in the first paragraph, a majority of weekly employees at the work section concerned might agree with Carter Holt Harvey to extend ordinary hours of day work up to 10 hours per day. To what extent is the intention relative to the second paragraph also one that there would need to be a majority of employees who would agree to changes in ordinary hours of day work.

PN25

MR GOLD: Senior Deputy President, if your question is would there also require to be a majority of weekly employees in the section concerned the answer is yes.

PN26

THE SENIOR DEPUTY PRESIDENT: Clause 21.3 on page 15, talks of the possibility of there being no agreement in respect of the implementation of ordinary working hours. That gives rise to two questions. Firstly, should I understand that an employee who may not be a member of the union can be represented by a person or organisation of their choice in that process?

PN27

MR GOLD: Yes, Commissioner.

PN28

THE SENIOR DEPUTY PRESIDENT: Secondly, if such a dispute was still unresolved and was referred to the Industrial Relations Commission, the parties would have the Commission do with the matter. There are times when parties are quite specific in terms of wanting the Commission to engage, firstly, in a conciliation process and secondly, in an arbitral function. There are other times when parties want to limit the Commission's involvement to the conciliation process and there are even other occasions when parties want to jump straight to the arbitration process. Now, there is no one right answer, save and accept - I probably prefer you to give the same answer so perhaps before you do answer my question it might be appropriate that I invite you and Mr Larner to put your heads together to see whether you have got the same view on that question.

PN29

MR GOLD: Senior Deputy President, we are in overwhelming agreement that preference would be for conciliation in first instance and if conciliation was unsuccessful then we would move to arbitration.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. On the same page, clause 22.1 and in the very last paragraph, there is reference to appendix A, do I take it that should be reference to appendix B?

PN31

MR GOLD: Correct.

PN32

THE SENIOR DEPUTY PRESIDENT: Now, can I take you the wages clause, 23.2, that clause refers to the minimum full time weekly wages in each year of this agreement. When did those years commence from?

PN33

MR GOLD: From the first pay period on or after - - -

PN34

THE SENIOR DEPUTY PRESIDENT: The certification of the agreement.

PN35

MR GOLD: - - - certification.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 27 on page 21 refers to a possibility of Saturday or Sunday work being part of an employees ordinary weeks work? How would such a circumstance arise?

PN37

MR GOLD: It is a very good question. I might actually ask Mr Osborne.

PN38

MR OSBORNE: We have got one section where - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Sorry, your name is?

PN40

MR OSBORNE: Sorry, Mark Osborne, we have got one section that the guys that have come back to the company have said we would prefer to start on a Sunday night and not work a Friday night so that they have a longer break period and we have done that, that is why that clause is in there.

PN41

THE SENIOR DEPUTY PRESIDENT: Is that arrangement an arrangement achieved consistent with the capacity to change hours or ordinary hours of work as previously addressed in this agreement?

PN42

MR OSBORNE: Yes, it does.

PN43

THE SENIOR DEPUTY PRESIDENT: On page 22, clause 28.2, establishes payments for employees who are required to work during their usual meal period. Clause 28.8 indicates that meal breaks are not paid breaks. I am just wondering whether someone could reconcile those two provisions for me.

PN44

MR GOLD: Senior Deputy President, the difference is one, you are actually required to work during your usual meal period in which case it would be a paid break. You would be paid for that time. If it was a normal meal period where - normal lunch, if you like, that is an unpaid period. That is the difference between the two.

PN45

THE SENIOR DEPUTY PRESIDENT: If your employees are required to work through that break?

PN46

MR GOLD: Then we would pay.

PN47

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN48

MR LARNER: Just further clarification, obviously, those workers would still be able to have the half hour break as per the award in the agreement.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 32.10, page 26, deals with situations where employees might access a disputes procedure prior to the termination of their employment. Should I read that clause as indicating that the decision on the part of Carter Holt Harvey to terminate an employee's employment is suspended whilst that process is being followed?

PN50

MR GOLD: That is correct.

PN51

THE SENIOR DEPUTY PRESIDENT: If, from the point of the reference of the matter pursuant to 32.10(e) to the Commission, I'm anxious that the parties do respond to this because this is actually an issue that arises with some frequency.

PN52

MR GOLD: Sorry, I'm just seeking some clarification from you. This is clause 32.10 that you are talking about?

PN53

THE SENIOR DEPUTY PRESIDENT: I'm talking of 32.10 and, in particular, the possibility that a dispute over a proposed termination of employment might end up being referred to the Commission for conciliation and then, as a last resort, arbitration. The issue or the question is one of whether the proposed termination of employment is then delayed or suspended pending the completion of that process.

PN54

MR GOLD: Well, the start of the answer is - the question of 32.10 is can employees access the disputes procedure prior to termination so the assumption is that we've told them that we are going to terminate them but we have not done so yet.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR GOLD: We have entered into discussion, and our discussions have been fruitless and we still can't agree. Your question is would we say: well, tough. You can go away and go to the Commission. We will reinstate you. Is that really your - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Not quite. It appears to me that the Act provides a mechanism for persons who believe they have been unfairly dismissed to pursue a remedy. The question that I'm asking is specifically related to this clause 32.10, and it is to the effect that if a given employee is advised by Carter Holt Harvey of an intention to terminate their employment, it is appears to me that this clause allows the employee to access a disputes procedure. The disputes procedure ends up, potentially, with the Commission having to arbitrate the matter in dispute.

PN58

The question arises as to whether or not the actual implementation of the decision to terminate that employee's employment is then delayed pending an outcome of that arbitration process.

PN59

MR GOLD: Our answer would be, yes, it would be delayed pending an arbitration process.

PN60

MR LARNER: May I also add that upon previous experience with Carter Holt Harvey as at the end of 2002, this instance did arise and between the union and the company, the employee concerned or both employees concerned were suspended on full pay. There was no loss of pay whilst the parties deliberated on the matter and tried to seek a resolution, so it would be the union's view that process would occur again right through the exercise until resolution is sought, either on site or before the Commission.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Clause 35.6 on page 29. It talks of an employee whose claim for sick leave might be rejected having the capacity to apply to the AIRC. Now, I wonder whether you might clarify for me the intention of the parties with respect to that provision. I raise that question because there are, effectively, two circumstances which might take effect in this regard. One is where there might be a dispute over whether or not an employee is able or entitled to claim sick leave.

PN62

The second is whether or not there might be a dispute over whether the employer is complying with the agreement which fundamentally goes to an enforcement function and is not generally the function of this Commission. It is a matter for the Court. Now, section 170LW of the Act provides an effective discretion for the Commission to be involved in the settlement of disputes where it is asked to be involved under the terms of an agreement. I need to alert you to the extent to which I don't expect the Commission to be involved in an enforcement function but it can, of course, be involved in the resolution of a dispute which gives rise to a question as to what is the intention with respect to clause 35.6.

PN63

MR GOLD: As, Senior Deputy President, you are thinking so was it written, and that is that the intention is if there was some disagreement, we would seek to have - we might seek to come to the Commission to resolve the dispute. We would not be seeking to have the Commission to force the clause as such.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Clause 35.10 on that same page. It talks of a one-off bonus to be paid at September 1 each year. Can I take it then that the first of those bonuses under this agreement will apply from 1 September 2003?

PN65

MR GOLD: Correct.

PN66

MR LARNER: Yes.

PN67

THE SENIOR DEPUTY PRESIDENT: Clause 40 on page 33, and in particular clause 40.1(b), can I take it that once again an employee who is not a member of this particular union or is a member of another union has the capacity to be represented by a person or organisation of their choice?

PN68

MR GOLD: Correct.

PN69

THE SENIOR DEPUTY PRESIDENT: A final question for you. It relates to clause 42.1 on page 33 and, in particular, to the second paragraph which envisages that if the rates of pay under the award increase by an amount greater than that provided for under the agreement, then the higher amount would be entertained or adopted. Now, I seek some confirmation from the parties as to how that would work.

PN70

The increases provided for under this agreement apply in June of each year. Is it the intention of the parties when applying those June increases to look back over the extent of the increases that have been granted in the relevant Award and then to do an adjustment or is it the intention of the parties to look at this agreement whenever the relevant Award is varied so as to then say: do we need to make an adjustment at that point in time?

PN71

MR GOLD: It would be the latter. The reality is that the rates that are paid on site are actually significantly more than the Award unless the ACTU or a similar body is extraordinarily successful in a national wage case. This is an unlikely occurrence but nonetheless, the case would be that if the award increased we would, at that time, look at the rates we are paying and make sure that the rates we were paying were no less than were applicable at that time.

PN72

THE SENIOR DEPUTY PRESIDENT: Perhaps I could clarify that again, I'm sorry. If I look at that second paragraph in clause 42.1, it talks of an amount of increase rather than an overall quantum. Is it the intention of the parties to look at the amount of the increase or at the quantum, that is, the absolute amount or weekly rate set in the award?

PN73

MR GOLD: It would be the quantum, the total amount.

PN74

THE SENIOR DEPUTY PRESIDENT: I see.

PN75

MR GOLD: Not the rate of the increase.

PN76

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now, Mr Larner, is that your understanding? I have to say it may well be the understanding of the parties, but the words are somewhat confusing in that regard.

PN77

MR LARNER: I might seek to have a discussion with the company and my delegate on this matter because - - -

PN78

THE SENIOR DEPUTY PRESIDENT: Look, I won't adjourn the proceedings but I will certainly let you have a chat amongst yourselves.

PN79

MR LARNER: Yes.

PN80

MR GOLD: Senior Deputy President, I think the parties are in agreement and hopefully we are answering the right question here, but our view is that if - - -

PN81

THE SENIOR DEPUTY PRESIDENT: There's no right or wrong answer.

PN82

MR GOLD: You want to make sure we are just - - -

PN83

THE SENIOR DEPUTY PRESIDENT: I'm just anxious that the parties have the same answer.

PN84

MR GOLD: I believe we are. What we are really saying is if the national wage case increased the Award by $25 and our enterprise bargaining agreement only increases it by $20, then that issue is - we wouldn't be looking at that. What we would be looking at is rather the total quantum. If the total quantum of the rate applicable is greater in the Award than what we are actually paying through the agreement, then we would pay as per the Award.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Mr Gold. That concludes my questions. Mr Larner, from an abundance of caution, is there anything else you want to say relative to the issues that I've raised?

PN86

MR LARNER: No, nothing further.

PN87

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the information provided to me in the statutory declarations, I am satisfied that the agreement was reached through a process consistent with the Act so that employees were able to make an informed vote in favour of it. I am also satisfied that the agreement meets the requirements of the no disadvantage test. The agreement is consistent with the Act in terms of its term of operation, and the existence of dispute resolution procedures, the operation of which the parties have clarified today.

PN88

I will certify the agreement with effect from today. The certificate will be forwarded out to the parties within the next few days. You will note that the certificate identifies the various clauses upon which I have sought some clarification from the parties. It will not detail your responses so that to the extent that it was ever necessary to have regard to those responses, you will need to consider the transcript of these proceedings. It is clear that this agreement is part of a sequence of agreement, and I wish the parties well in its continued operation and will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.25am]