AG2003/8948, Transcript of Proceedings [2003] AIRCTrans 4915 (6 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2003/8948

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by ADI Limited Explosive Ordnance Services
and Others for certification of the
ADI Limited, Explosive Ordnance Storage,
Distribution and Maintenance (EO SD&M)
Enterprise Agreement 2003

SYDNEY

2.35 PM, WEDNESDAY, 22 OCTOBER 2003

PN1

MR P. LEAVER: I'm from ADI and with me is MR T. DAVIS.

PN2

MR A. CASEY: I appear for the National Union of Workers.

PN3

THE COMMISSIONER: Thank you, Mr Casey. Have the parties determined who will address or make submissions in regard to the application?

PN4

MR LEAVER: Yes, Commissioner, I will.

PN5

THE COMMISSIONER: Thank you, Mr Leaver.

PN6

MR LEAVER: Commissioner, there are probably a number of omissions or corrections which came from the stat decs which, hopefully, I will address throughout the term of the submissions I'm about to make.

PN7

THE COMMISSIONER: And you'll seek amendments to the statutory declarations, will you?

PN8

MR LEAVER: Yes, I will as I go through.

PN9

THE COMMISSIONER: Leave to amend.

PN10

MR LEAVER: Yes, leave to amend; sorry, Commissioner. Commissioner, this is an application under section 170LJ, Part VIB of the Workplace Relations Act for certification of an agreement between ADI Limited and the National Union of Workers. The relevant parent awards are the ADI Limited Middle Management and Professional Award 1998 and the ADI Limited Employees Award 1999. The agreement will apply to part of a single business, that being ADI Limited Explosive Ordnance Services.

PN11

THE COMMISSIONER: A distinct operational part of the business?

PN12

MR LEAVER: A distinct operational part of the business.

PN13

THE COMMISSIONER: I find parties answer yes to that question and don't actually go further and say what it is, but, never mind, you're not on your lonesome, Mr Leaver, in that regard.

PN14

MR LEAVER: And it's certainly distinct geographically in about 40 different sites throughout Australia, so distinct from any other ADI sites that we have. Commissioner, the agreement applies to 91 employees, which includes 18 females and two people of non-English speaking background at the sites. The negotiations for the agreement have been wide-ranging. The initial agreement, which this agreement will replace, was made as a Greenfield agreement, so the parties really came into these negotiations with experience of 18 months worth of operations under their belts and really looking for changes to that previous agreement which incorporated some of the difficulties we've had over that period of time.

PN15

Once the negotiations were completed, we went out to each of the sites through union representatives, and where there was no union representatives through our site managers, to the employees. One of the matters which I seek leave to enter in the company stat dec is at 6.5 of the stat dec. It's actually blank as to what steps the employer had taken to explain the agreement to employees.

PN16

THE COMMISSIONER: Well, it's not so much amendment; you are seeking to build on and where the statutory declaration of Mr Davis was signed.

PN17

MR LEAVER: Yes, and basically to place on record, Commissioner, that we did have quite fulsome, I would say, explanation of the agreement to our sites over a period of time. The matter was such that the first time that the agreement went to a vote it was actually rejected by a majority of people, so the NUW and ourselves did a campaign throughout all the sites to explain some of the things which had come out as difficulties, so that everybody understood the agreement before finally getting majority approval of the agreement.

PN18

The agreement does on balance improve the overall terms and conditions of the employees and meets the no disadvantage test. As I said, it does entirely replace the previous agreement which applied which was the ADI Limited Warehousing Maintenance and Distribution Enterprise Agreement 2000. It nominally expired in June of this year and, obviously, we've had no protected action or bargaining period place on us. We've been able to reach agreement and hence we're here before you, Commissioner.

PN19

The agreement provides for three minimum rate increases: a 3.5 percent increase from the first full pay period on or after 30 June of 2004; 3.5 percent from the first full pay period on or after 30 June 2005; and a final increase of 4 percent from the first full pay period on or after 30 June 2006. The employees, Commissioner, had access to the agreement as I said. Twice the agreement went out to each of the sites to all the people there before a final meeting was taken on 23 September of this year.

PN20

THE COMMISSIONER: So they had the 14 day period?

PN21

MR LEAVER: Two lots of 14 day periods to view the same document, because we were worried whether the distribution had been correct and also there were some questions that some of the parties had.

PN22

THE COMMISSIONER: Some of the employees had.

PN23

MR LEAVER: Yes, and also some of the officials. Once questions had come back it puts doubts in people's minds. I would like to also place - just to attach to the file, Commissioner, a series of letter exchanges between the parties which covers some of the matters which were questioned from the agreement, and all the employees also got to see copies of these letters to understand how the agreement is to operate.

PN24

THE COMMISSIONER: We might mark that material A1 in proceedings before me.

EXHIBIT #A1 SERIES OF LETTER EXCHANGES BETWEEN THE PARTIES

PN25

THE COMMISSIONER: Yes, whenever you're ready.

PN26

MR LEAVER: As I said, Commissioner, that vote was carried out on 23 September and the documents, both stat decs from the parties and the application, was lodged on 9 October so within the 21 day period as required. The agreement does contain a disputes procedure for presenting and settling disputes which is at clause 8 of the agreement and that clause allows for, as a final stage in the event of a dispute remaining unresolved, either party may refer the matter to the Australian Industrial Relations Commission to have the matter resolved by means of conciliation or arbitration, which was also echoed in the stat decs from the parties.

PN27

THE COMMISSIONER: There is one particular part of the statutory declaration which hasn't been answered and that's at 7.6.2. I did read your dispute settling provision and the parties are agreed that the Commission has power to settle a matter under the agreement by conciliation or arbitration. It's just that in the statutory declaration 7.6.2 has not been answered. Do you want to turn your mind to that and advise me?

PN28

MR LEAVER: Commissioner, unless Mr Casey says otherwise, effectively what the parties have agreed is that the Commission by getting carriage of the dispute has all of its powers open to it under the Act. So if it chose to put together a board of reference, it would certainly be our intent that the parties would accede to that.

PN29

THE COMMISSIONER: So, what it's saying is that from your perspective the dispute settling provision in the agreement empowers the Commission to settle a dispute over the application of the agreement.

PN30

MR LEAVER: Yes.

PN31

THE COMMISSIONER: And/or appoint a board of reference, so it would be a tick in the "yes" box in that particular section of the statutory declaration?

PN32

MR LEAVER: That would be so, Commissioner. The Commission would be empowered to take carriage of the dispute effectively from the parties.

PN33

THE COMMISSIONER: Yes, thank you for that clarification.

PN34

MR LEAVER: Commissioner, there is one other change to actually both of the statutory declarations which were made. Both of the stat decs talk about the nominal expiry date being 14 June 2006. Within clause 5 of the agreement it clearly states that the expiry will be 30 July 2006, so I would seek to amend certainly Mr Davis's statutory declaration to read correctly I suppose - to read in line with the enterprise agreement that we have placed for certification.

PN35

THE COMMISSIONER: Yes, I see that.

PN36

MR LEAVER: The NUW effectively, Commissioner, received a copy of our statutory declaration and they've just copied from that date, I would say, so I apologise for being incorrect on that point. Commissioner, we would commend this agreement for certification based upon the statutory declaration as amended and expanded upon provided by Mr Davis from ADI and from the NUW and in my submissions to you today. It is our submission that the agreement meets the requirements of the Act for certification under 170LT, and we would seek certification from today's date with an expiry date of 30 July 2006. If it please the Commission.

PN37

THE COMMISSIONER: Mr Leaver, I notice the agreement that I have on file is signed by the parties, ADI and the National Union of Workers, and in accordance with the requirements of the rules. It simply says that the application must be accompanied, or be in accordance with form 27 and accompanied by agreement signed by the parties and what-have-you. It is just that it is not dated. Normally, people sign something and date the day they sign it. I don't know that the rule specifies that it must be signed and dated by the parties; I just draw it to your attention in a sense. You might turn your mind to that for the next agreement that you enter into.

PN38

MR LEAVER: Commissioner, sadly, it will be my last appearance for ADI. So I will hand that to the elders and betters.

PN39

THE COMMISSIONER: You are moving on?

PN40

MR LEAVER: Yes, I am, Commissioner, and 16 of these has probably been enough. I commend the document for certification by the Commission.

PN41

THE COMMISSIONER: Thank you, Mr Leaver, I won't tell you how many agreements I have done. Thank you for those submissions. Mr Casey?

PN42

MR CASEY: If it please the Commission. Commissioner, I am happy to support everything that Mr Paul Leaver has expressed to you. The agreement was done in a very wide-ranging and friendly manner between the company and the employees, our members, and ourselves. There were several meetings held. There was quite an extensive roadshow put on by the union to explain the agreement. All the agreements were - the drafts of agreements were handed out for a minimum of two weeks prior to the vote being taken. As it was reported to you, the first vote was refused, and of course we went through another educational campaign after that.

PN43

As for the technical issues, Commissioner, we also agree that the Commission does have the power to arbitrate disputes of this agreement, and also that the expiry date should read 30 July 2006. I commend the certification of the agreement.

PN44

THE COMMISSIONER: Yes, thank you, Mr Casey, for those submissions. Yes, I don't think there is anything further that I was to raise with the parties. This is an application before the Commission made by ADI Limited and the National Union of Workers for the certification of an agreement made pursuant to Section 170LJ of the Act.

PN45

The agreement is to be known as the ADI Limited, Explosive Ordinance Storage, Distribution and Maintenance Enterprise Agreement 2003. And on the basis that the statutory declarations are filed and clarified and amended in proceedings before me today, and the submissions made by Mr Leaver and Mr Casey, I am satisfied that the statutory requirements of a certification have been met by the parties. I am satisfied that the agreement in relation to the requirements of the no-disadvantage test does not on balance result in a reduction of the overall terms and conditions of employment under the relevant awards or laws.

PN46

I have clarified with the parties the dispute settling provision found at clause 8 of the agreement, and the agreement specifies a nominal expiry date of 30 July 2006, which is not more than three years after the agreement will come into operation. The application before me is granted with effect from today's date, and formal certification will issue in due course. Gentlemen, thank you for your attendance, the Commission stands adjourned.

ADJOURNED INDEFINITELY [2.48pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SERIES OF LETTER EXCHANGES BETWEEN THE PARTIES PN25