AG2003/7021, Transcript of Proceedings [2003] AIRCTrans 4699 (23 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 4946

~~AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2003/7021

APPLICATION FOR AGREEMENT WITH
EMPLOYEES (DIVISION 2)

Application under section 170LK of the Act
by Pioneer Construction Materials Pty Ltd
and another for certification of
Pioneer Construction Materials Pty Ltd
Quarry Enterprise Bargaining Agreement,
July 2003

MELBOURNE

11.07 AM, MONDAY, 8 OCTOBER 2003

PN219

MR C. SMALE: I appear on behalf of Pioneer, together with MR E. HLEDE from Pioneer.

PN220

MR A. COX: I appear on behalf of the Australian Workers Union. I have no objection to Mr Smale representing Pioneer in this hearing.

PN221

THE COMMISSIONER: I don't think you necessarily have standing to make an objection in these circumstances, but let's not worry about it, I will grant leave in any event. Yes, Mr Smale?

PN222

MR SMALE: Thank you, sir. Sir, you may recall that when this matter was last before you, Ms Angus from the AWU indicated that the union may wish to make representations to you concerning whether there was jurisdictional basis to consider the application.

PN223

THE COMMISSIONER: Well, that seems to have been withdrawn, because I have a letter from Mr Winter, saying that the union wants to be a party bound by the agreement.

PN224

MR SMALE: Yes.

PN225

THE COMMISSIONER: Do you have a copy of that?

PN226

MR SMALE: I have that, sir, yes.

PN227

THE COMMISSIONER: Right. It didn't say on the letter whether it had been copied to anybody else.

PN228

MR SMALE: And I understand from both Mr Winter and Mr Cox that, indeed, that what is implicit in that, that is, that there is no objection to the agreement being certified, is, in fact, the case.

PN229

THE COMMISSIONER: Well, there is some recent authority on this subject, that you shouldn't take it for granted that an organisation seeking to be bound by the agreement is necessarily submitting to the proposition that it meets the no disadvantage test, for example.

PN230

MR SMALE: Yes. I was trying to indicate, Commissioner, that I did clarify with Mr Cox and Mr Winter that what I took to be implicit was, in fact, explicitly intended.

PN231

THE COMMISSIONER: I see, right. All right.

PN232

MR SMALE: That is to say that they didn't wish to raise any jurisdictional issues.

PN233

THE COMMISSIONER: Well, they say the agreement is fit for certification.

PN234

MR SMALE: That is my understanding, yes.

PN235

THE COMMISSIONER: All right. Well, perhaps Mr Cox can help us with that in due course.

PN236

MR SMALE: Yes.

PN237

THE COMMISSIONER: Look, I only have one question about this agreement, and that is, what is the means by which the company can seek to have a variation in the severance pay made under clause 15.5, do you think? Does that mean you make an application to the Commission for a variation of the agreement?

PN238

MR SMALE: No, Commissioner. It means that if the employee concerned and the company both accept that there is acceptable alternative employment within the meaning of that clause, that the redundancy provisions will not apply. If the employee doesn't accept that - - -

PN239

THE COMMISSIONER: Well, it doesn't really say that, does it, with all due respect, it doesn't say that? What it says is what is usually the case in an award, is it not the case? That what it says is what is usually provided for by awards. And what you have just described is a different situation, because an award provision confers the discretion for the variation upon the Commission, does it not?

PN240

MR SMALE: Yes, sir, yes.

PN241

THE COMMISSIONER: Right. Not upon the company. It seems to me to - and what may have varied. I understand what you told me a moment ago, but I am looking at what it says in the agreement and what has been approved by the valid majority of employees. That is what they approved. And they are not here, are they, they are not represented today?

PN242

MR SMALE: No, sir.

PN243

THE COMMISSIONER: Perhaps you could clarify this. If what you are saying is, that if you find acceptable alternative employment for someone, and they say to you - is this right - I agree this is acceptable alternative employment, I therefore agree that I won't receive any severance payments, that is what you are saying?

PN244

MR SMALE: Yes, sir.

PN245

THE COMMISSIONER: All right. Well, I think I need a little bit of confirmation in this 170LK scenario, a little bit of confirmation from the employees that is their understanding.

PN246

MR SMALE: Yes.

PN247

THE COMMISSIONER: But I don't necessarily think that that is an impediment, but I do think it would be desirable if there be a bit of clarification.

PN248

MR SMALE: The clarification I will seek, sir, is that the clause either has the meaning I have attempted to attribute to it, or that it has the meaning that the employees and the company understand it to mean, that the - - -

PN249

THE COMMISSIONER: The same of an award?

PN250

MR SMALE: The same as an award, yes.

PN251

THE COMMISSIONER: In other words, it would be dealt with under the dispute settlement procedure.

PN252

MR SMALE: Yes.

PN253

THE COMMISSIONER: And the principles applied by the Commission for the determination of such matters would apply.

PN254

MR SMALE: Yes.

PN255

THE COMMISSIONER: Well, if you gave an undertaking to that effect, that, I think, would be the end of the day. And that, I suspect, is probably open to the company right now if you want to do it, because there is no prejudice to the employees under those terms.

PN256

MR SMALE: Yes. I have instructions to give that undertaking, sir, that the clause should be construed so that in the event of the company seeking to invoke the provisions of that clause, that the employee would have the right to invoke the dispute resolution clause.

PN257

THE COMMISSIONER: All right. And that an employee would be informed that unless they consent to the non provision of the severance payment where acceptable alternative employment is obtained by the employer, that the onus would be upon the employer to obtain from the Commission, in accordance with the usual principles applicable to such variations, a determination. Is that right?

PN258

MR SMALE: Yes, sir.

PN259

THE COMMISSIONER: Well, could you draft something, advice which would be given to an employee in those circumstances?

PN260

MR SMALE: Yes, sir.

PN261

THE COMMISSIONER: And provide it for the file please.

PN262

MR SMALE: Yes, sir.

PN263

THE COMMISSIONER: All right. As an undertaking.

PN264

MR SMALE: Yes. What I will do, sir, is await the transcript, and extract a combination of both what I said and you said, and give that in the form of an undertaking and in the form of a letter that would be given.

PN265

THE COMMISSIONER: In the event, yes.

PN266

MR SMALE: In the event that there was some dispute about this.

PN267

THE COMMISSIONER: Yes, very well. Mr Cox, do you have anything else to say? Do you confirm that the union takes the view that the agreement is fit for certification under the Act?

PN268

MR COX: Yes, Commissioner.

PN269

THE COMMISSIONER: In all respects?

PN270

MR COX: There has been a long drawn out process. I have got a copy of the letter that was sent to the company on the 3rd, if you would like a copy?

PN271

THE COMMISSIONER: Yes, please.

PN272

MR COX: The company has a copy.

PN273

THE COMMISSIONER: And I do have another letter on the file from Mr Winter.

PN274

MR COX: Yes, that is right, Commissioner.

EXHIBIT #AWU1 LETTER TO COMPANY FROM UNION

EXHIBIT #AWU2 LETTER TO COMPANY FROM MR WINTER

PN275

MR COX: We have changed our mind. We have had discussions with our members, and we now ask to be party to the agreement, which, we have had a few discussions with the company, and there is no objection about the union being bound to the agreement. Do you want me to say anything to do with that clause we just discussed?

PN276

THE COMMISSIONER: No, that is fine. I just need you to tell me that you agree with Mr Smale, that the agreement is fit for certification, and are you happy with the undertaking that we have been discussing in relation to a variation of the severance pay liability?

PN277

MR COX: Yes, Commissioner.

PN278

THE COMMISSIONER: All right, very well. Will you forward a copy of the letter please to the AWU, Mr Smale?

PN279

MR SMALE: I am sorry, sir, would I?

PN280

THE COMMISSIONER: Would you please forward a copy of the draft letter to the AWU?

PN281

MR SMALE: Yes, sir.

PN282

THE COMMISSIONER: Identifying what will be done in that event.

PN283

MR SMALE: Yes.

PN284

THE COMMISSIONER: I indicate to the parties it is my intention to certify the agreement, subject to the receipt of that undertaking and the relevant information. I am satisfied that the agreement was made in accordance with the requirements of the legislation. I am satisfied that it has been approved by a valid majority of the employees whose employment will be covered by its terms, and I am satisfied in particular with the clarification and undertaking that we have been discussing in relation to severance payment liability that would not disadvantage employees covered by its terms.

PN285

The agreement provides an appropriate commencement and duration provision, and dispute settlement procedure. In all of these circumstances it is appropriate and necessary that the Commission issue an order certifying the agreement, and I will do so. The order of certification will come into force on and from today's date, and remain in force until 30 June 2006. Thank you.

ADJOURNED INDEFINITELY [11.16am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 LETTER TO COMPANY FROM UNION PN275
EXHIBIT #AWU2 LETTER TO COMPANY FROM MR WINTER PN275