AG2003/2799, Transcript of Proceedings [2003] AIRCTrans 3118 (21 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BARTEL

AG2003/2799

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Agreement under section 170LK of the Act
by Flotek Pty Ltd and Another for certification
of the Flotek Pty Ltd Enterprise Agreement 2003

ADELAIDE

10.56 AM, TUESDAY, 8 JULY 2003

PN1

MR B. KLITSCHER: I appear on behalf Flotek Pty Limited on this matter.

PN2

THE COMMISSIONER: Yes, thanks Mr Klitscher and thanks for hanging around, sorry about the delay. This matter follows on from proceedings in the Commission on 2 July in relation to this matter. At that time there was representatives of the company and also a representative of the employees, an elected representative of the employees present at that time. There are a number of issues that I raised and sought clarification on from all the parties. I don't have actually have the transcript with me as yet but I recall the issues that I raised. I also recall the explanation that was given by yourself, Mr Klitscher and by the representative of the company, in terms of the - how you would expect the agreement to operate and also heard from the employee rep in relation to those specific concerns that I had.

PN3

Since that time I just note, that we do have on file an email from yourself, Mr Klitscher dated 3 July 2003 and look, I'll mark that as an exhibit for the file. Perhaps you can address that in the course of your submissions, Mr Klitscher. I'll just mark as exhibit F1 for these proceedings today. Yes, thank you.

EXHIBIT #F1 EMAIL FROM MR KLITSCHER DATED 03/07/2003

PN4

MR KLITSCHER: Commissioner, I sought instructions during discussions, from my client Flotek Pty Limited. As the email suggests to you employs a casual employment flexibility that only goes to the number of hours that might be required to be worked by the employees week-by-week and it does not go to altering the award or moving away from the award provisions in respect to the qualification of casual employees to have the option to go to permanent or part-time or full-time. So that this is strictly only about hours may vary week-by-week, the flexibility ..... the day and the ability to have that flexibility.

PN5

THE COMMISSIONER: So just on that then. So if an agreement is entered into either on commencement of employment or at some other stage between and an employee and employer the 6-month period which I understand is the qualification period under the award in order to at least to apply for permanency, if that came around in the course of that agreement the agreement wouldn't prevent that being considered on its merits, as if there was no agreement as to hours effectively.

PN6

MR KLITSCHER: That is correct.

PN7

THE COMMISSIONER: Yes, thank you.

PN8

MR KLITSCHER: Commissioner, in clause 10 after discussions between the parties and I then received instructions that the employer certainly would be happy, in fact would be happier if the last paragraph in clause 10, that is the paragraph commencing with the word, overtime and ending with the word, above, if that paragraph was deleted in its entirety, it really does not go to anything in the agreement and therefore is probably seen as superfluous.

PN9

THE COMMISSIONER: Yes. Well, look, it was my recollection from the explanation given from the employee rep and also the explanation that you gave at that time, that if anything that last paragraph could be interpreted as providing something that wasn't intended.

PN10

MR KLITSCHER: Sure.

PN11

THE COMMISSIONER: And it would be my intention if there is no objection from your client, Mr Klitscher to amend the agreement to delete that last paragraph.

PN12

MR KLITSCHER: No objection at all.

PN13

THE COMMISSIONER: Yes, pursuant to section 111(1)(r) of the Act, the agreement will be amended by deleting the fourth paragraph in clause 10, working hours and starting and finishing times. Thank you .

PN14

MR KLITSCHER: Commissioner, I believe that really covers the outstanding issues that you wanted us to go away and consider.

PN15

THE COMMISSIONER: Yes, I should also note for the record, I guess to re-affirm a couple of other matters that were raised by me on the last occasion. The first, was in relation to clause 3 Application and Parties Bound and it was the explanation of the parties that the final phrase in that clause which reads:

PN16

And includes Flotek employees working throughout the State of South Australia.

PN17

In fact, simply re-affirms the previous phrasing of that clause and does not seek to extend that clause to any employees who for example, are may not be covered by the Metal Industry South Australia Award. The other matter which I also clarified with the parties on the last occasion, was in relation to clause 9 wages which set a rate of $19 per hour, once this agreement is certified and I received assurances from the parties that all trades-persons employed by Flotek were in fact on rates of pay lower than $19. So the $19 per hour actually represents an increase to all employees of Flotek as well.

PN18

MR KLITSCHER: Yes, on certification, yes.

PN19

THE COMMISSIONER: Yes, and I think that was the extent of the matters raised on the last occasion. Yes, there is nothing further?

PN20

MR KLITSCHER: Nothing further I wish to add, thanks Commissioner. Just request the Commission that the agreement can be certified?

PN21

THE COMMISSIONER: Yes, thanks, Mr Klitscher. Yes, look, on the basis of the clarification provided by Mr Klitscher and my discussions with Mr Klitscher and the employee representative, also the email that has been referred to and marked exhibit F1 and the further explanation provided today, I'm satisfied that the Application for Certification meets the statutory requirements and I note that the Application for Certification has now been amended in terms outlined by me to clause 10.

PN22

In particular, I'm satisfied that the amended agreement meets the no disadvantage test, that the agreement was approved by a valid majority of employees who genuinely consented to the agreement, that the agreement is for a period of operation within the maximum prescribed by the Act and contains relevant provisions dealing with dispute settling procedures and re-negotiation of the agreement.

PN23

Pursuant to section 170LT, I therefore certify the agreement. The agreement is binding on the parties set out in clause 3, The Application and Parties Bound, being Flotek Pty Limited and its employees covered by the Metal Industry South Australia Award. The agreement will come into operation from 2 July 2003 and remain in force until the nominal expiry date of 1 July 2005 and a certificate will issued to the parties in due course.

PN24

MR KLITSCHER: Just one matter of clarification perhaps, Commissioner. When we were before you - it has just occurred to me - on 2 June, we did hand up an exhibit, I think you marked that as exhibit F1, it was a copy of a letter so whether that effects this mornings exhibit?

PN25

THE COMMISSIONER: Yes, it does, thank you for that, Mr Klitscher, sorry the document which I marked as exhibit F1 this morning should in fact be marked exhibit F2, being the email from Mr Klitscher dated 3 July 2003. Yes, if there is nothing further, Mr Klitscher?

PN26

MR KLITSCHER: Nothing further, thanks, Commissioner.

PN27

THE COMMISSIONER: Thank you.

ADJOURNED INDEFINITELY [11.05am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F1 EMAIL FROM MR KLITSCHER DATED 03/07/2003 PN4