AG2002/5909, Transcript of Proceedings [2003] AIRCTrans 445 (12 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2002/5909

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Allied Engineering Pty Limited and Others for
certification of the Allied Engineering Workshop
Agreement 2002

ADELAIDE

10.50 AM, WEDNESDAY, 29 JANUARY 2003

PN1

THE COMMISSIONER: I will take appearances, thanks.

PN2

MR A. MARKIEWICZ: If the Commission pleases I appear on behalf of the company Allied Engineering Pty Ltd and appearing with me from the company is MR MICHAEL IANNELLA, the Company Director. If the Commission pleases. If I could also indicate that also present is the employee representative MR VLASMIR MARICIC who is also present.

PN3

THE COMMISSIONER: Yes, thank you.

PN4

MS G. REGIONE: If the Commission pleases, I am from the Australian Manufacturing Workers Union representing our members employed by Allied Engineering and with me is our shop steward from Allied Engineering, MR SEAN HACKETT. Thank you, sir.

PN5

THE COMMISSIONER: Yes, thanks. Mr Markiewicz?

PN6

MR MARKIEWICZ: Thank you, Commissioner. Commissioner, this is an application for a certification of an agreement known as the Allied Engineering Workshop Agreement 2002. It is an agreement under section 170LK between the company and the relevant employees in the workshop.

PN7

I can report, sir, that the required statutory declarations have been signed on behalf of the company and the employees and whilst the AMWU have indicated that they wish to be party to an agreement, they have not signed a statutory declaration. There is a difference of opinion between the AMWU and the others in terms of the form of the agreement.

PN8

As a consequence of the meeting between the company and the employees developments were consistently provided to all employees by a management employee and employee representatives. The agreement contains an avoidance of industrial disputes procedure at clause 10 and a no extra claim provision at clause 9. Further, all employees were provided with access to copies of the terms of the final agreement a full 14 days prior to its acceptance by a valid majority on 13 September 2002.

PN9

We also submit there is no reduction in the overall terms of the employees' conditions of employment and the parties have agreed this agreement shall operate from the date of certification and shall remain in operation for a period of 36 months. Commissioner, as a result of differences between the union and the other parties the certification had been delayed subject to trying to get a statutory declaration on behalf of the AMWU.

PN10

As I understand it, it is not necessary in terms of the AMWU to actually put in a statutory declaration. They can still be party to the agreement by giving an indication to the Commission that they wish to be a party which can happen at the hearing for the certification.

PN11

THE COMMISSIONER: Mr Markiewicz, was this always intended to be or originally intended to be an LJ agreement?

PN12

MR MARKIEWICZ: In terms of the company, it was always intended to be an LK.

PN13

THE COMMISSIONER: Right.

PN14

MR MARKIEWICZ: In terms of its employees. Perhaps if I could just give a bit of background, Commissioner. In terms of that, there were two agreements that were being negotiated. There was one agreement which was on behalf of the workshop which is this one which is currently before the Commission. There is another agreement which regards on-site employees which Mr John Gresty on behalf of the union has been involved and that one is negotiated as a 170LJ.

PN15

That has been signed and a statutory declaration has been signed on behalf of the AMWU and will be lodged with the Commission this week. In terms of this particular one which is in respect of the workshop employees, it was always the intention on behalf of the company for it to be a 170LK agreement. That is what was discussed with particular employees and that is what was agreed.

PN16

But as I say, certainly the union and the union official who was involved, Mr Andrew Clarke, certainly indicated that it was the wish of the particular union for it to be a 170LJ and eventually indicated that they would not sign a statutory declaration for a 170LK but would do so if it was a 170LJ.

PN17

Again because of the differences in the two, if it was a 170LJ there would have to be a requirement for a statutory declaration. Being an application under section 170LK there is not a requirement for the union to in actual fact encompass a statutory declaration. However, Commissioner, because of the discussion that took place between the union and the other parties there was a delay in the lodgement of particular agreements.

PN18

Certainly we would seek the Commission's discretion in consideration of the agreement in line with section 111(1)(r) of the Act and would refer the Commission to the decision of Vice President Ross, TNT Logistics Sabco Warehouse Enterprise Agreement 1996. That particular case he also certified a particular agreement that was over 3 months out of time and also indicated that matters of consideration included there being no change in the composition of the work force since the agreement was approved.

PN19

Now, if I could indicate to the Commission that is the particular case with the particular company. The composition of the work force has remained unchanged since the agreement had been made. So unless - - -

PN20

THE COMMISSIONER: There were other factors that Vice President Ross took into account in that decision including the decision by the relevant employees was a unanimous decision. Can I get some indication here as to what the actual vote was, and I don't need to know the precise details but was it - but some indication would be useful.

PN21

MR MARICIC: There was 37 employees all got voting papers. Out of those 37, 36 voted and this was on the final - we had seven questions, your Honour, or eight questions actually that were voted on.

PN22

MS REGIONE: Commissioner, I am not aware of that document.

PN23

THE COMMISSIONER: The document I'm looking at is simply quite - - -

PN24

MR MARICIC: That is just a ballot return on the actual what people voted on as far as the employees go on those particular questions. I will give you the questions if you like.

PN25

THE COMMISSIONER: Well, I mean I don't think the document helps me much at all. It has got a list of names and then three columns. The first column is a list of names, the second column says: I have returned the ballot paper, the third column has provision for signature and there are a number of signatures there and - - -

PN26

MR MARICIC: Yes, I've got the details on where we've all signed off on the last page.

PN27

THE COMMISSIONER: On the last page there's some figures down the bottom there.

PN28

MR MARICIC: Yes, that is right, yes. That is the actual final count of what was returned and who voted according to what.

PN29

THE COMMISSIONER: So there were eight questions.

PN30

MR MARICIC: That is right.

PN31

THE COMMISSIONER: Can I just ask what were those questions? I'm sorry about that. What were those questions?

PN32

MR MARICIC: Would you like me to - I've got a copy of them there, save me reading.

PN33

MS REGIONE: Could I just have a quick look at it?

PN34

MR MARICIC: Yes, certainly. I will give you a copy too.

PN35

THE COMMISSIONER: I will explain, Ms Regione, what I've got in front of me.

PN36

MS REGIONE: Yes, I've got a copy of that, thank you, sir.

PN37

THE COMMISSIONER: In regard to question 1, do you agree for the AMWU to be included as parties bound to this agreement, 35 yes 1 no. Question 2, date and period of operation, do you agree for the term to be 36 months, 36 yes. That was unanimous, yes.

PN38

MR MARICIC: You seem to have missed some of the questions out, sir.

PN39

THE COMMISSIONER: Sorry?

PN40

MR MARICIC: Some of them actually missed a couple of the questions out. There's one or two that haven't - - -

PN41

THE COMMISSIONER: Sure, I understand. Question 3, do you agree to clause 7 objectives of the agreement? That was unanimous. Well, 34 yes and no voted against. Question 4, in clause 8 wages do you agree to a wage increase of 12 per cent in the first 12 months, additional - etcetera, etcetera and that was 35 yes, none against.

PN42

MR MARKIEWICZ: Hardly surprising though, sir.

PN43

THE COMMISSIONER: No, no, that is true. Question 5, do you agree to clause 9 no extra claims, 34 yes 1 against. Question 6, do you agree to the avoidance of industrial disputes. That was unanimous. Question 7 related to enterprise specific issues under attachment A, sick leave clauses, superannuation clauses, protection of entitlements, clothing clauses. That was unanimous, well almost unanimous.

PN44

Then question 8, do you agree for the issue of long service leave to be kept in accordance with the Metal Engineering and Associated Industries Award 1998? There were 29 in favour and 7 against. That was the one more contentious issue I suppose but it is a very clear majority. You said you had a copy of that, Ms Regione.

PN45

MS REGIONE: I have got a copy of that thank you, sir.

PN46

THE COMMISSIONER: Yes, very well. I mean I can hand those back. I mean I don't think we need to have that formally as a part of the document at all. I just note though that in the decision that you refer to, Mr Markiewicz, in Vice President Ross' decision in the TNT Logistics matter he made his decision having regard to the decision in that case by the relevant employees was a unanimous decision to approve the agreement.

PN47

Now, here it might not - well is it as good as unanimous. I mean it is a pretty overwhelming majority and you say there is no change in the composition of the work force since the agreement was approved and the agreement was voted on or approved back in September.

PN48

MR MARICIC: 13 September, yes.

PN49

THE COMMISSIONER: And no new employees at all?

PN50

MR IANNELLA: Look it would be minor. I can't say off the top of my head that it is a hundred per cent exactly the same. Sorry, but it would be 90 per cent, 95 per cent the same.

PN51

MR MARKIEWICZ: If you could just excuse us for one moment please, Commissioner.

PN52

THE COMMISSIONER: Yes.

PN53

MR IANNELLA: Yes, I'm focusing more on the administration, not the shop floor, that is correct.

PN54

THE COMMISSIONER: So what can you say about the shop floor?

PN55

MR IANNELLA: The shop floor, two to three, yes.

PN56

THE COMMISSIONER: Two to three changes with some people leaving and new ones coming in.

PN57

MR IANNELLA: That is correct.

PN58

THE COMMISSIONER: It is only minor in that sense. Now, Mr Markiewicz, you are saying then the reason for the delay was this issue as to whether or not the union was going to be a party to the agreement at the end of the day.

PN59

MR MARKIEWICZ: Correct, sir.

PN60

THE COMMISSIONER: Okay. Anything further you wish to put?

PN61

MR MARKIEWICZ: No, sir.

PN62

THE COMMISSIONER: Can I just ask a couple of questions in relation to 5.11 - - -

PN63

MR MARKIEWICZ: The stat dec, sir?

PN64

THE COMMISSIONER: Sorry?

PN65

MR MARKIEWICZ: Of the statutory dec?

PN66

THE COMMISSIONER: Yes, of the statutory declaration. How many people of a non-English-speaking background are you talking about here?

PN67

MR MARKIEWICZ: One person, sir.

PN68

THE COMMISSIONER: One, I'm sorry. Yes, that is correct. Right, sorry, that takes care of that. No further questions from my point, Mr Markiewicz. Now, Ms Regione?

PN69

MS REGIONE: Thank you, sir. Sir, with respect to Mr Markiewicz, I think the paperwork which has been presented to you already demonstrates that in fact the papers were distributed. The final copy of the proposed agreement was distributed on 29 August with instructions that the ballots be returned the next day and Mr markiewicz said, and I'm sure he was following his instructions, that the ballot was conducted on 13 September.

PN70

THE COMMISSIONER: Can I just get that clarified, Mr Markiewicz?

PN71

MR MARKIEWICZ: Yes, sir.

PN72

THE COMMISSIONER: The ballot papers went out on 29 August. They were returned the following day?

PN73

MR MARKIEWICZ: Yes, sir.

PN74

MS REGIONE: And the agreement if I may, sir, was distributed with them.

PN75

THE COMMISSIONER: Yes. What is the magic then of 13 September where you say that was the date on which the agreement was approved?

PN76

MR MARKIEWICZ: Commissioner, on the instructions that I have is that it was a matter in terms of putting it through and the 13th refers to the 14 days for the employees to consider their particular positions.

PN77

THE COMMISSIONER: Well, did they - - -

PN78

MR MARKIEWICZ: Perhaps if I could ask the employee representative to give an indication of what occurred?

PN79

MR MARICIC: Right, your Honour, that is exactly right. That was 14 days after we actually counted the votes, that 13 September. The votes went out on the 28th actually and all the people took them home and read them and we asked for them to be returned by the 30th and most of them I think - the last count we had was on the 2nd of the 9th actually.

PN80

The first count was on the 30th. There were still a few absentees and on the 2nd of the 9th we've got the last count in and that is when the final count was actually done. So it is just that 14 day cooling-off period till the 13th. We informed people they had still a chance to change their mind if they wanted to and that is, you know, have a good think about it. They had a good read, they spoke with their spouses, etcetera if they had to.

PN81

They took all the voting papers home and also the agreement and we gave them 48 hours to basically vote on it.

PN82

THE COMMISSIONER: Well, why didn't you give them up to 13 September then to vote on it?

PN83

MR MARICIC: Well, most, the majority, and I speak on behalf of the employees here, all decided they wanted to get it out of the way as soon as possible and they already - we could have taken the vote earlier. It was just waiting on the actual final proposal to come through and there was hardly any changes in that anyway.

PN84

THE COMMISSIONER: Okay. Sorry, Ms Regione.

PN85

MS REGIONE: Yes, Commissioner, the AMWUs position is that this whole process has been somewhat unorthodox. The process of enterprise bargaining was initiated by the AMWU serving an initiation of bargaining period notice on 21 May 2002. The employer responded by writing to its employees asking them whether they wanted an EB and whether they wanted the union to negotiate for them and asking them to nominate their own non-union representatives to be involved in negotiations.

PN86

I should say, sir, to be fair that the union has about one-fifth of the employees as members at the workshop. The company - there wasn't a ballot held to choose the non-union representatives. They simply were self nominated and what the company did then was negotiated with them to the exclusion of the AMWU and its members.

PN87

There was outright discriminatory action against the AMWU and its members in that when meetings were held of the work force to discuss enterprise bargaining positions and so on, the non-union workers were allowed paid time to have meetings, to hold meetings with their so called representatives and the AMWUs members were required to meet in non-paid time and lost wages for these meetings.

PN88

The other discriminatory aspect of it was that unlimited facilities of administrative support and paid time for negotiations by the employee reps and for discussion with the workers was provided to the non-union representatives but denied to the union shop steward Mr Hackett. So because of essentially largely our exclusion, we did have a couple of meetings with the company but largely we were excluded from the process so we can't really say, and this is why we didn't fill in the stat dec, we can't really say that the process of approving this agreement meets the requirements of the Act.

PN89

In fact I think as we've seen with the ballot process there are some unorthodox practices which appear to have been followed. As Mr Markiewicz said, the union has also negotiated a site agreement because there's a workshop with its employees and there's site work and the site agreement has been negotiated and is an agreement which is an LJ agreement and that is obviously what we were also seeking for the workshop employees.

PN90

Now, the biggest problem that we have with this proposed agreement is that the classifications, and if I could take you to them, sir, in the agreement itself, they are on the last page. The classification structure only provides for a trades person C10 which is the very base level trades person in the award and the Metal Engineering and Associated Industries Award has an extensive classification structure and a very clearly defined one which the parties have all worked on for a very long time, system for defining what classification applies to what type of work.

PN91

And it was our position to the company throughout this, the limited negotiations we did get with them, that there should be an exercise, a classification exercise undertaken because from what we know of the work undertaken there, there are a number of employees whose work falls well above the C10 level and this agreement does not provide for them to receive anything other than the base trade rate and workshop rate.

PN92

So we have significant concerns with that and really our question is what will be the structural process for dealing with any disputes which arise about workers being required to carry out duties above the C10 base grade level during the course of this agreement. I mean the agreement is silent on the competency standards in the Metal Engineering and Associated Industries Award.

PN93

Maybe that means that it is open to the union to continue those discussions and negotiations during the period of this agreement. However there is the no-extra-claims clause and we really need to know quite clearly that our members who are above the C10 rate will not be fixed in place for the term of the agreement, that there will be room left to further discuss the classifications in line with the competency standards in the award.

PN94

That is our position, sir. I guess it is not outright opposition but it is some concern about the process and it is a very sincere concern about the classification process and the inadequacies of this proposed agreement in terms of that above-trade base-trade work.

PN95

THE COMMISSIONER: In regard to that latter point is your submission that the agreement does not pass the no-disadvantage test?

PN96

MS REGIONE: Well, certainly for those people who are above the base trade. They are by definition of the last page of the agreement to be classified as trades persons C10 and paid that rate I presume. Or else they are not covered by the agreement at all and it purports to cover everyone so I'm not quite sure what the company intend to do about it. As I say, we've been largely left out and it is difficult to - - -

PN97

THE COMMISSIONER: So the reference to C10 being the only rate, again which clause are you - - -

PN98

MS REGIONE: I'm looking at the last page of the proposed agreement which is a supplementary information hourly pay rates. It is not in the agreement that you have submitted to the Commission, is that what you are saying? So this page, you have not been included it?

PN99

THE COMMISSIONER: I don't have reference to here.

PN100

MR MARKIEWICZ: It is covered under clause 8 wages.

PN101

THE COMMISSIONER: Clause 8 wages simply states:

PN102

Established wage levels and agreed increase over the life of this agreement are as follows.

PN103

And then there's the 12 per cent wage increase and the 3 per cent wage increase and the final 3 per cent wage increase. That is all it says. It says nothing about classifications.

PN104

MS REGIONE: Sir, maybe if I could submit this document which was distributed to the work force as part of the agreement?

PN105

THE COMMISSIONER: What I'm looking at here is a document that has been submitted by the union headed: Allied Engineering Workshop Agreement 2002, supplementary information hourly pay rates. Two tables are then listed, one for permanent employees and one for casual employees and the tables contain six columns.

PN106

The first column is the classification and I note there that the highest level classification is for C10. There's also reference to C11, C12, C13. In the third column there's the current rate, fourth column there's the hourly rate plus 12 per cent, fifth column is the hourly rate plus an additional 3 per cent and so on. That is the document I'm looking at. Do you have that, Mr Markiewicz?

PN107

MR MARKIEWICZ: Yes, sir.

PN108

MS REGIONE: Sir, it is our submission that that was distributed with the agreement which the employees were asked to vote upon.

PN109

THE COMMISSIONER: All right. Mr Markiewicz, could you explain what the company says about this? Is this part of the agreement or is it not? What is its status?

PN110

MR MARKIEWICZ: Sir, I think in terms of looking at that, it is as included in the title, supplementary information hourly pay rates. It was put out at the same time to give an indication of what the increases would mean. It wasn't a part of the agreement but it was an explanation of showing - it is supplementary information to show what the actual amount in terms of the 12 per cent, the 3 per cent and 3 per cent, what that would mean and in terms - - -

PN111

THE COMMISSIONER: Ms Regione says that this is an indication that the agreement assumes that there is no one classified at a higher level than C10. What do you say to that?

PN112

MR MARKIEWICZ: Certainly I'm not aware of anyone who is classified beyond C10 but again that would be in accordance as indicated, it is subject to the provisions of the Metal Engineering and Associated Industries Award. If someone meets the particular classification at a higher level then that particular higher classification would be applicable.

PN113

THE COMMISSIONER: And there is a process of reclassification but I mean if someone felt at the moment they were higher than a C10 and they were being underpaid in effect, well there's nothing in the agreement to stop them.

PN114

MR MARKIEWICZ: The provisions of the award would apply. There is nothing in the agreement that prevents the utilisation of the classification or reclassification provisions contained within the award.

PN115

THE COMMISSIONER: Yes. Now, again in relation to the - what do you say about the relation to the procedures involved here? I mean there seems to have been a little bit of confusion but can you just run over again what the company is saying the procedure for the - the voting procedure actually was?

PN116

MR MARKIEWICZ: Certainly, sir. I think there was also a particular notice that was put out by Mr Iannella on behalf of the company which is dated Wednesday, August 28 which was addressed to all workshop employees and in it he stated:

PN117

As you are aware negotiations for our certified agreement have concluded and a final copy of the agreement has been prepared. We are required under the Workplace Relations Act to give employees ...(reads)... within 21 days.

PN118

And that was signed by Mr Iannella. I can certainly show you a copy of that document if the Commission wishes.

PN119

THE COMMISSIONER: Yes. So that went out to all workshop employees on 28 August?

PN120

MR MARKIEWICZ: Yes, sir.

PN121

THE COMMISSIONER: Yes.

PN122

MR MARKIEWICZ: And that is why in terms of that, the company then utilised the 13th as being the date of the particular approval in which time for employees to have the 14 days in which to come back and give an indication of their approval of the agreement. In terms of that, sir, that then related to having the agreement and signing the agreement, was signed by the representative on behalf of the employees, giving an indication of agreement to the proposal put up by the company and discussed with the representatives previously.

PN123

THE COMMISSIONER: Okay. So the ballot papers then go out on the 29th?

PN124

MR MARKIEWICZ: They did. Yes, sir. That is my understanding.

PN125

THE COMMISSIONER: Have you got a copy of any documentation that went out with those ballot papers as to when they were to be returned?

PN126

MR MARKIEWICZ: Yes, sir. In actual fact I think that is what the employee representative had indicated.

PN127

THE COMMISSIONER: Had indicated earlier, right.

PN128

MR MARKIEWICZ: Earlier.

PN129

MS REGIONE: I've got a copy of that.

PN130

THE COMMISSIONER: I would like to just have a look, yes. Just one moment, we will have a look at this, Mr Markiewicz.

PN131

MR MARKIEWICZ: Yes, sir.

PN132

THE COMMISSIONER: So this voting paper goes out to all the workshop employees. Now, obviously that - well I'm assuming that includes of course the union members.

PN133

MR MARKIEWICZ: Correct.

PN134

THE COMMISSIONER: Right and then those figures that were mentioned earlier by the employee rep, those figures cover union members as well.

PN135

MR IANNELLA: Correct.

PN136

MR MARKIEWICZ: It is all of the employees, sir.

PN137

THE COMMISSIONER: Right. What do you say, Mr Markiewicz, to the union's allegations about discrimination against union representatives in the process leading up to the agreement being sent out to the employees?

PN138

MR MARKIEWICZ: Certainly the company would reject and has rejected that particular proposition.

PN139

THE COMMISSIONER: But I mean they are serious allegations. I mean is there any substance to them at all?

PN140

MR MARKIEWICZ: No, sir. In terms of that in actual fact the company went through the particular processes of ensuring that the employees were aware that they could utilise their particular union for the purposes of negotiations. In terms of the particular information, the information in terms of the representation was for all the particular employees. So all employees were treated exactly the same.

PN141

THE COMMISSIONER: Well, I mean Ms Regione says that for non-union members they were given - they were allowed paid time for different meetings, union members were not allowed paid time. I mean are you just denying that completely?

PN142

MR MARKIEWICZ: Yes, sir. My instructions, Mr Commissioner, are that in terms of particular meetings they applied to all employees whether they were members of the union or not.

PN143

THE COMMISSIONER: Right.

PN144

MS REGIONE: Maybe, sir, if I could just clarify that. There were meetings called by the non-union representatives and I think what Mr Markiewicz is saying is that union representatives were welcome to aware those meetings with the non-union representatives but any meetings with the union representatives were not paid for and that is our complaint, sir.

PN145

THE COMMISSIONER: Yes. What does the company say to that?

PN146

MR MARKIEWICZ: Perhaps if we could ask the employee representative.

PN147

MR MARICIC: Your Honour, I will answer that. I mean I asked for particular meetings and I was told in no uncertain terms by both Mr Iannella and Mark Graham who is my foreman that any meeting we were to have was to be only for 15 minutes duration either before lunch and going into our lunch hour break or before we knock off and after we've knocked off.

PN148

So that way there's 15 minutes of their time maybe and 15 minutes of our time and that is all there ever was. Now, I know Sean has asked for half hour meetings and that was rejected. The union delegate asked for half and they rejected the half-hour meetings and they said you can have quarter-hour meetings. Now, as far as - - -

PN149

THE COMMISSIONER: When you say quarter-hour meetings, you mean quarter of an hour being paid in their - - -

PN150

MR MARICIC: Paid, that is right, exactly right. So there's not - - -

PN151

THE COMMISSIONER: So 30 minute meetings but 15 minutes in your time, 15 minutes in the company's.

PN152

MR MARICIC: Yes, that is right and if it goes over the rest is in our time.

PN153

THE COMMISSIONER: Okay.

PN154

MR MARICIC: And the foreman specified that to me and he said: you and the union delegate are getting the same time here, I don't want any friction in the workshop. That is exactly what he - and I didn't want any friction in the - I didn't want to be in this position right now but I was told that with no unspecific terms that I had only 15 minutes in my time to hold a meeting and 15 minutes of the company's time basically and as had the union.

PN155

Now, as far as the union members were allowed to come to our meetings, there was no problem with that at all. In fact it was the other way round. When the union had a meeting, a couple of us wanted to attend their meeting. We were told basically to get out but that was their decision because we - one of them wanted to find out what exactly is being told to the union delegates because they were getting a different story to what the majority of the people wanted you see. So yes.

PN156

THE COMMISSIONER: Well, thanks. I mean that explains. Perhaps if I get Mr Hackett or you Ms Regione just to respond to that. I mean I understand where the company is coming from. They are saying: well look 30 minute meetings were fine but half in the company's time, half in the employees' time. And from the sound of it what they are saying is the union was asking for the whole 30 minutes to be in the company's time.

PN157

MS REGIONE: Certainly were, sir, and we were not paid for any of the time, not 15 minutes. I mean if it was fair on that arrangement our members would have only lost 15 minutes pay instead of losing a half an hour's pay whenever we had a meeting.

PN158

THE COMMISSIONER: Well, I mean it is a simple matter. Either the union members were paid for that 15 minutes or they weren't. Now, the union says they weren't paid and the company says they were paid. Look in any event I suppose the relevance of all this is - I mean these are serious issues and if we were in a dispute setting here I would be saying: look please just sort it out. I mean the Commission's main concern here is that both union members and non-union members be treated the same.

PN159

That is the Commission's concern and if they haven't been treated the same then my recommendation is that you rectify that matter but I mean it is a simple factual matter really. Mr Iannella, do you want to say something?

PN160

MR IANNELLA: Sorry, yes. Your Honour, I was just going to say it was proven there's an error that Sean has not been paid. Allied always stands behind its words. If there's a problem we fix it but I need to identify that. As far as I'm concerned it is being paid equal.

PN161

THE COMMISSIONER: Well, Ms Regione, have you had discussions with the company about this issue, about payment for those meetings?

PN162

MS REGIONE: Sir, I'm filling in for the organiser who is up at Roxby today so I haven't personally been involved at all until today. I could speak to Mr Hackett about that and discover whether there have been discussions but we have a pay slip of Mr Hackett's which demonstrates the lost time and we are not saying it is only Mr Hackett who lost the money but all of the union members who attended the meeting.

PN163

THE COMMISSIONER: Well, look can I just make a recommendation that the parties have some further discussions about that and if there is a discrepancy in the way in which union members and non-union members have been treated, my strongest recommendation is that that be sorted out and rectified. However I mean what I have before me at the moment is an agreement and it is proposed to be approved under section 170LK.

PN164

Now, Ms Regione, the Commission has limited powers to some extent when we are talking about agreements. I mean I'm looking at section 170LT of the Act and the Act says that if an application is made to the Commission in accordance with division 2 or 3 to certify an agreement, the Commission must certify the agreement if and must not certify the agreement unless it is satisfied of certain things.

PN165

The first thing, the critical thing, is the no-disadvantage test. Your point I think was a valid point. However the document you handed up of course is not part of the agreement. The company says it was only for explanatory purposes only and certainly the agreement at clause 6 dealing with the relationship with the parent award is quite clear. If the union contends that there are employees who are classified at a higher level than C10, well there's nothing in this agreement that negates that.

PN166

MS REGIONE: Well, sir, that would satisfy our concerns if it is recognised by the company that we can turn up next week and start, you know, if that is what our members ask us to do to discuss with them the classification of these people doing above C10 work.

PN167

THE COMMISSIONER: Yes.

PN168

MS REGIONE: And that won't be considered a breach of the agreement and that would satisfy that concern.

PN169

THE COMMISSIONER: It would seem to me there is nothing in the agreement that negates that position. That document was only handed out for explanatory purposes and the company says: well there's no one classified higher than C10 at the moment. Well, that might be a matter of fact at the moment.

PN170

Whether it is a matter of principle whether that should be the case is another issue and I think you can deal with that. So in terms of the no-disadvantage test, the Commission does not really have a problem with the agreement. I mean it is a pretty basic agreement. I mean I don't think there's a problem there.

PN171

There's the issue of a valid majority. The Commission must be satisfied that a valid majority of persons have genuinely made the agreement. I don't see that there is any problem with that on the basis of what I've heard. The Commission must be satisfied that there's been explanations given in ways - explanations of the agreement given in ways that were appropriate having regard to the relevant background of people and so on.

PN172

That does not seem to have been in issue. The Commission must been satisfied there is provisions in the agreement for prevention and settlement of disputes. That is the case. It seems to me that for the purposes of section 170LT which I've got to have regard to, the only thing the Commission can do is either certify the agreement or not certify the agreement and I must certify the agreement if I'm satisfied that those provisions that I've mentioned about no-disadvantage test, valid majority, etcetera have been satisfied and it would seem to me on the basis of what I've heard that they have been satisfied.

PN173

So can I just clarify this again, Ms Regione? You are not opposing the certification of the agreement?

PN174

MS REGIONE: No, sir. What we are saying is that - - -

PN175

THE COMMISSIONER: You are merely expressing your concerns about the process.

PN176

MS REGIONE: Yes, sir. We are saying it is up to the Commission to determine whether the process meets the requirements of the Act because we are really not in a position to say that it does. That is all we are saying.

PN177

THE COMMISSIONER: I understand, yes, yes. Yes, well look I think given the requirements of section 170LT I am satisfied that those processes have been met. It does concern me that the application is so much out of date. Now, I understand the reason for it and I guess having regard to that decision that you referred to, Mr Markiewicz, the decision of Vice President Ross which is the touchstone to these matters, you can't guarantee me there's been no change in the composition of the work force but what you can guarantee me of is that if there has been a change in composition of the work force it has been basically negligible.

PN178

It might have been two or three employees but not such that it would affect that majority of the 36.

PN179

MR MARKIEWICZ: Correct, sir.

PN180

THE COMMISSIONER: And while the decision of the relevant employees was not necessarily unanimous, it was as good as unanimous basically. I understand the reasons for the delay but I think in all the circumstances I think it would appropriate for the Commission to exercise its powers under 111(1)(r) and extend the time and having looked at the agreement and having considered the process and so on, I'm satisfied with the agreement.

PN181

However I think the points that Ms Regione raises are on the face of them matters that the company should take on board next time it does an agreement and as I say the Commission's main concern here is that all employees be treated in the same manner. I mean that is pretty obvious but if there are problems with that in the workplace then that has got to be sorted out for the future but I think this time around I'm satisfied.

PN182

So unless there's anything further from the parties what I would indicate is that the Commission has before it an application to certify an agreement pursuant to section 170LK of the Act. I note firstly that the application is substantially out of time but having regard to the submissions of the employer this morning and in particular having regard to the decision that has been referred to in TNT Logistics Sabco Warehouse Enterprise Agreement 1996, a decision of Vice President Ross on 29 April 1997 in print P0442, the Commission in the circumstances of the present case is prepared to exercise its discretion pursuant to section 111(1)(r) of the Act and grant the necessary extension of time to enable the application to proceed.

PN183

I can also indicate for the record that I have perused the statutory declarations on file of Michael Iannella, a Director of Allied Engineering Pty Ltd which is the employer in this instance, and Vlasmir Maricic, employee representative employed by the company and elected by the relevant employees to act on their behalf.

PN184

The Commission has heard from the parties today in relation to an application to have the agreement certified under division 2 of Part VIB of the Act. The Commission notes that the Metal Engineering and Associated Industries Award 1998 is the relevant award for the purposes of the no-disadvantage test.

PN185

The Commission further declares that it is satisfied not without some consideration but it is satisfied that the necessary statutory requirements for certification of the agreement have been met and is satisfied with the explanations that have been given by the parties today. Accordingly the Commission hereby certifies the Allied Engineering Pty Ltd Workshop Agreement 2002 to operate from the beginning of the first pay period to commence on or after the date of certification which will be today's date, 29 January 2003, and to remain in force for a period of 36 months there from.

PN186

The Commission in certifying this agreement notes that certification of the agreement ends the bargaining period in matter BI2002/413. I indicate to the parties that the necessary documentation confirming the certification will be forwarded to the parties shortly. Finally I can indicate that in regard to the matters raised by the union today it is certainly my recommendation which is all I can do in proceedings of this present nature but it is my recommendation that the parties meet together as soon as possible over the next day or two to try to resolve any outstanding issues in regard to the payment of union members in regard to meetings leading up to this agreement.

PN187

I think that is probably all we need to say at this point. We can leave it there. We stand adjourned.

ADJOURNED INDEFINITELY [11.40am]