AG2003/5432, Transcript of Proceedings [2003] AIRCTrans 3130 (22 July 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 3643
~~AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

AG2003/5432

APPLICATION FOR AGREEMENT WITH
EMPLOYEES (DIVISION 2)

Application under section 170LK of the Act
by Hallmark Oaks Pty Ltd for certification of
Hallmark Oaks Pty Ltd - Cann River Enterprise
Bargaining Agreement 2003

MELBOURNE

2.13 PM, WEDNESDAY, 9 JULY 2003

PN1

MR P. RYAN: I appear on behalf of the company, together with MR R. HUMPHREYS, the owner and general manager of the company, and MR T. HALL, an elected employee representative on behalf of the employees.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ryan?

PN3

MR RYAN: Thank you, your Honour. Your Honour, this matter is an application made under Division 2, Part VIB of the Workplace Relations Act. It is an application made on behalf of Hallmark Oats Pty Ltd and its employees for certification of an agreement reached between the company and its employees at the Cann River mill site. Your Honour, this is the third such certified agreement of the company and its employees, however, this is the first Division 2 enterprise agreement to be entered into. The previous agreement was certified by Commissioner Cribb.

PN4

Your Honour, discussions in relation to this agreement commenced last year. In fact, it was proposed to be a Division 3 agreement, however, that didn't eventuate at that point in time, and it was earlier this year that discussions re-recommenced, and the employees and company elected to seek to have an agreement certified as a Division 2 agreement. The agreement itself is effectively rolling over the previous certified agreement, with the only substantive change relating to increased monetary payments to the employees, which are contained within the agreement.

PN5

Your Honour, in terms of the mandatory requirements of the agreement itself, the agreement itself has a defined period of operation, as set out at clause 4 of the agreement, which is a three year term, and also the agreement contains within it the required dispute resolution procedure which is outlined at clause 10 of the agreement. Your Honour, we would submit that the manner of compliance with the Act and the regulations as set out in the accompanying statutory declarations.

PN6

Included with the statutory declarations is actually the advice that was forwarded to the employees as required in relation to the company's intention to seek to have an agreement, and also close with the documentation, the statutory declaration, the notification from Mr Ted Hall, in relation to him being authorised to act on behalf of the employees in respect of the requirements of the Act.

PN7

Your Honour, on the basis of the documentation that has been submitted and the submissions that I have made, we would seek and request that the agreement be certified pursuant to the Workplace Relations Act. If the Commission pleases.

PN8

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, can I take you to clause 4. The third paragraph says:

PN9

The agreement shall operate from 1 June 2003 and remain in force for a period of three years, therefore till 31 May 2006. The parties agree to the roll-over of this agreement for a period of one year after an initial two year period. The only clause to be reviewed at the completion of the initial two year term is clause 40.

PN10

I think it should be clause 39, not 40, if you look at the - is that right?

PN11

MR RYAN: Thank you, your Honour. It most definitely should have been clause 39, the reference to the wage increase and other benefits.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. I will just correct that typo. But of more concern to me is this:

PN13

The parties agree to commence negotiation of this clause -

PN14

That is clause 39:

PN15

- at least eight weeks prior to its expiry.

PN16

So the expiry is 31 May 2006. Is it meant prior to the expiry of the total agreement or the expiry of the two year term?

PN17

MR RYAN: I believe it should be to the total, to the expiry of the total agreement.

PN18

THE SENIOR DEPUTY PRESIDENT: Okay. So eight weeks prior to that is going to be round about end of March, okay?

PN19

MR RYAN: Yes, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: So end March 2006, right, you are going to negotiate, or you are going to review, negotiate that clause:

PN21

Should the review process not be completed by 1 October in the year of expiry -

PN22

Which is 1 October being after the nominal expiry date:

PN23

- either party can elect to defer negotiations till 1 February the following year, till 1 February 2007, in which time this agreement will remain in effect.

PN24

It can't.

PN25

MR RYAN: Your Honour, yes, I appreciate it has been raised, and we are now reconsidering that clause. It was a clause that was there when the initial discussions on this agreement were last year, 2002, so the time frame of that has altered. Perhaps if I could suggest that the most appropriate way to deal with that is if the clause can be meant to delete that clause, so that it is consistent then with the intention of the parties, was that they commenced negotiations eight weeks prior to expiry, and that with the review, that review should be completed eight weeks prior to the expiry date.

PN26

THE SENIOR DEPUTY PRESIDENT: Well, my concern is this. I don't know what the employees thought they were agreeing to there.

PN27

MR RYAN: Unfortunately I was not present at that meeting either. I could ask Mr Humphreys perhaps to indicate to you directly in terms of the intention. I can only suggest that the dates there are as you pointed out, are out of kilter at this point of time.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps Mr Humphreys might be able to enlighten me about what he thought it meant.

PN29

MR HUMPHREYS: Your Honour, the problem we have here, we have the expiration of our previous EBA between the employer and the employees at our company, occurred quite some time ago, and there was a third party that had an interest in the renewal of the enterprise bargaining agreement. Unfortunately what we have in front of us is basically a cut and paste of what we had with the third party involvement.

PN30

The removal of the third party was really brought about by my employees who came to me and said, well, we just can't wait for them any longer, because it was being a stop start situation with them. They said, is there any way we can get around this? I said, well, I understand there is an instrument, if you like, called a Division 2, and I am more than happy to entertain that if you guys want to. And that is what they decided to do. Maybe not enough attention has been given to the dates and that, but if there is some way we can fix it to save us doing this five hours down and five hours back, I would be absolutely delighted.

PN31

If we made it a two year agreement with the acquiescence of my employee rep? The difficulty they have, your Honour, is that it has probably cost them $700 or $800 so far, because the benefits that will flow from the ratification of this EBA will flow from the time of its ratification, and that was probably one of the major driving forces of them coming to me and saying is there some other way we can do this.

PN32

THE SENIOR DEPUTY PRESIDENT: Although, as I understand it, there are no terms and conditions in this agreement which are less than any award or other provisions to which the employees are entitled by law.

PN33

MR HUMPHREYS: Your Honour, our previous EBA had a number of advantages to the employees over and above the award, and this one, once again, goes further than that and has some incremental wage increases in it which are well above the award and will flow to them.

PN34

THE SENIOR DEPUTY PRESIDENT: Okay. So the sort of $700 or $800 that you are talking about, there is nothing to stop you paying that, is there?

PN35

MR HUMPHREYS: There is probably not. But we were never going to get resolution to it - until we got to resolution to it I didn't really want to pass it on. And they have come back to me, your Honour, and said, is there some way we can do this, because of the procrastination of the third party. And so we did decide to do it the way we have done it.

PN36

THE SENIOR DEPUTY PRESIDENT: And equally, if that was the case, I mean, you didn't want to pay until you had an agreement. Fine. But if there is a hiccup, you could make any back payment retrospective, couldn't you?

PN37

MR HUMPHREYS: I certainly could.

PN38

THE SENIOR DEPUTY PRESIDENT: So you could back pay it on the basis that there is some agreement reached at a certain date?

PN39

MR HUMPHREYS: Yes. We would have to establish that date, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, okay, thank you Mr Humphreys. Mr Hall, what do you understand the fourth paragraph in clause 4 means?

PN41

MR HALL: I am not quite sure, you know, on all this type of legal stuff, but on behalf of myself and my employees, we totally agree with what our employer has put forward to us. We have just waited too long before we have got anything.

PN42

THE SENIOR DEPUTY PRESIDENT: Okay. I will go into conference.

SHORT ADJOURNMENT [2.24pm]

RESUMED [2.32pm]

PN43

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, in respect of the fourth paragraph in clause 4, I have pointed out to you the potential ambiguity in that clause. Is it to be eight weeks prior to expiry, to be prior to the two years?

PN44

MR RYAN: Yes, your Honour, that was the intention of the parties, and unfortunately there was an inconsistency with the other dates that were mentioned in that paragraph.

PN45

THE SENIOR DEPUTY PRESIDENT: So it should be at least eight weeks prior to 31 March 2005, should it?

PN46

MR RYAN: That is the correct reference that should be there, your Honour. That then would give true effect to the intent, which is that there are increases for the first two years of the agreement, and there is the intention to negotiate the third increase prior to the third year commencing.

PN47

THE SENIOR DEPUTY PRESIDENT: Right. Was that your understanding, Mr Humphreys?

PN48

MR HUMPHREYS: Yes, it was.

PN49

THE SENIOR DEPUTY PRESIDENT: And Mr Hall?

PN50

MR HALL: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: Well, I will amend that to at least eight weeks prior to 31 March 2005. Is there anything else you want to add, Mr Hall?

PN52

MR HALL: No. I would just like to go along with what has been said, and all my other workers will be agreeable with that, thank you.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Humphreys, anything you want to add?

PN54

MR HUMPHREYS: No thank you, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Well, having regard to the material contained on the file in this matter and also the submissions put to me, I am satisfied I should certify the agreement known as the Hallmark Oaks Pty Ltd - Cann River Enterprise Bargaining Agreement 2003, as amended during the course of these proceedings. I am satisfied that to do so would be consistent with the requirements of the Act and the regulations. The certification of the agreement will come into force from today's date and remain in force until 31 May in the year 2006. I will now adjourn.

ADJOURNED INDEFINITELY [2.34pm]