C2003/5997, Transcript of Proceedings [2003] AIRCTrans 4898 (6 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 10651

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/5997
AG2003/7872

ACI OPERATIONS PTY LIMITED t/as
ACI MOULD MANUFACTURING

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

Notification pursuant to section 99 of the Act
of a dispute re the alleged certification of
the incorrect version of the Enterprise
Bargaining Agreement

APPLICATION FOR AGREEMENT ABOUT
INDUSTRIAL DISPUTE (DIVISION 3)

Application under section 170LS of the Act
by ACI Operations Pty Limited t/as ACI
Mould Manufacturing and Another for
certification of the ACI Mould
Manufacturing Certified Agreement 2003

MELBOURNE

12.01 PM, WEDNESDAY, 21 OCTOBER 2003

PN1

MR R. MARASCO: I am from the Australian Industry Group representing ACI Operations Proprietary Limited trading as ACI Mould Manufacturing; with me is MR F. NIEUWHAF, MR B. DELANEY and MR M. MINNITO.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, together with MR T. MAVROMATIS and the shop stewards from the site.

PN3

THE COMMISSIONER: Thank you. Well, not to put too fine a point on it, what have you stuffed up? Mr Marasco.

PN4

MR MARASCO: Yes. Would it be more appropriate if we went into private conference if we are talking about stuff-ups?

PN5

THE COMMISSIONER: Well, as I understand it, an agreement was put before Senior Deputy President Acton.

PN6

MR MARASCO: Yes.

PN7

THE COMMISSIONER: And that was certified.

PN8

MR MARASCO: That is correct.

PN9

THE COMMISSIONER: But the agreement that was certified contained not exactly what was agreed to.

PN10

MR MARASCO: That is correct.

PN11

THE COMMISSIONER: Right. So what do you seek to do?

PN12

MR MARASCO: Well, we say that the agreement that was certified by the Senior Deputy President was an incorrect version of the agreement; it was not the true version agreed to by the parties and it was not the true version as subject to the arbitration that the Commission as it is currently constituted arbitrated on in relation to the roster issue. I have faxed through to the Commission a draft statutory declaration from myself, which I have given a copy of to Mr Addison just setting out what actually happened.

PN13

THE COMMISSIONER: Right.

PN14

MR MARASCO: What I would like to discuss in private conference with the union and with you, Commissioner, is sort of the best means to rectify the stuff up. I understand that the Commission has powers under section 111(p) and (q) to rectify errors, namely:

PN15

...to allow the amendment on such terms as it considers appropriate of any application or other document ...(reads)... whether in substance of form.

PN16

So I would just like to discuss with the Commission and the union whether we make an application under section 111 or whether it is more appropriate we do an application under section 170MG, namely an application to terminate the incorrect version of the agreement and immediately thereafter certify the correct on. But I am of the view that maybe section 111(p) and (q) might be the more appropriate way to do it.

PN17

THE COMMISSIONER: Right, okay. Thank you. Mr Addison, what do you say?

PN18

MR ADDISON: Yes, thanks, Commissioner. Commissioner, I am not that fussed on the vehicle. It would seem to me that MG would probably be the most appropriate way to do it but, as I say, I am not fussed on that. What I would like to do is get some agreement as to exactly where we are at. I was called last week with regard to this matter and told that the wrong copy was certified on the basis that it contained half a per cent less than was agreed. When I got the documents I found out that that was not correct. The copy that was certified, in fact, had the correct, wage outcomes in it so I understand that there is some argument about clause 19 which has the two roster arrangements in it.

PN19

THE COMMISSIONER: Yes.

PN20

MR ADDISON: However, that would not make the agreement a nullity in any event because there is a Commission decision that stands side by side with a decision of yourself, Commissioner, with regard to the appropriate roster so that would - - -

PN21

THE COMMISSIONER: Well, that is true except that - I mean the difficulty as I see it when looking at the two agreements, the one with the two options if you like, is that to avoid any doubt and to have - to avoid at any point in the future some bush lawyer coming in saying: ah, there is an option. Rather than trying to go behind the agreement and see that there was a decision creating expectations that there is availability of an option and to avoid any of that, I am just wondering for the purposes of clarity it is better if people actually read off a clean document.

PN22

MR ADDISON: Yes, except it is not unusual to read two documents together. Indeed, the Metal Industry Award has got to be read in connection with this agreement in any event.

PN23

THE COMMISSIONER: But I think the Metal Industry Award has got to be read in connection with a hundred other documents but - - -

PN24

MR ADDISON: I mean, look, I am happy to go into conference, Commissioner, and clarify where we are at. I understand there is some argument about the sick leave provision; whether it should be reflected in days or reflected in hours. The agreement that was certified is reflected in days. The agreement that the company now seeks to have certified reflects sick leave in hours. I wasn't involved in that particular discussion. My involvement was principally around the shift issues - - -

PN25

THE COMMISSIONER: Yes.

PN26

MR ADDISON: - - - rather than the sick leave issues. Mr Mavromatis was involved in the sick leave issues. I think it might be useful to go into conference, briefly at least, to explore just exactly where we are at.

PN27

THE COMMISSIONER: Okay, all right. We will just go off transcript. Thanks.

SHORT ADJOURNMENT [12.07pm]

RESUMED [12.52pm]

PN28

THE COMMISSIONER: The Commission has had an opportunity to have a conference with the parties. What appeared to be a simple issue of rectifying an agreement that inadvertently had been certified with some errors has now evolved into something much larger. There is the issue of the application of clause 6.3 which states:

PN29

Existing over-award payments and conditions of employment shall continue to apply.

PN30

There are a range of matters that have been raised by the union that say that the company has now altered the existing terms and conditions that existed prior to the certification of the now new agreement. That decision, according to the union, was made unilaterally. It has been acknowledged by the company that there has been some errors made in the past and they have now corrected those errors. The union has raised the issue of the status quo and the definition of that under the agreement.

PN31

There is also the issue of the application of sick leave provision, whether it should be reflected in hours or whether it should be reflected in days. The union needs to clarify that, given that Mr Thomson, an Assistant National Secretary, was involved in those negotiations as to what the intent was of that clause and whether it should have been reflected in hours or within days. The parties also need to review what is happening at other ACI sites in terms of the application of the superannuation - particularly the superannuation issue and the rostered day off issue.

PN32

The Commission would recommend that the parties confer and see whether or not they can reach some understandings. If not, then it may be appropriate that either party may wish to run an argument over the application of those clauses that have been identified this morning as part of the conference process. Until such time as there is an understanding or the matters are determined by the Commission, the agreement that was certified by Senior Deputy President Acton, despite the errors in that agreement, that agreement is the certified agreement and shall continue to operate until such time as it is replaced by something else. Is that clear? All right, thanks. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [12.55pm]