AG2003/7390, Transcript of Proceedings [2003] AIRCTrans 5057 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/7390

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Another for
certification of Dry Creek Rocla Proprietary
Limited Enterprise Agreement 2003-2006

ADELAIDE

10.05 AM, THURSDAY, 30 OCTOBER 2003

PN1

MR J. ROCK: I appear for Business SA on behalf of Rocla Proprietary Limited, with me today is MR D. ALLAN, the Area Manager for Rocla and MR G. HOOK, who is the National HR Manager for Rocla Proprietary Limited.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rock.

PN3

MR A. POLANCO: Your Honour, I am here representing the Australian Workers' Union and the employees at Rocla Pipes.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Polanco. Mr Rock?

PN5

MR ROCK: Sir, I will take the running with the submissions if that is agreeable to yourself? Your Honour, this is an application for the certificate of an agreement pursuant to section 170LJ, Division 2 of the Workplace Relations Act 1996. The parties are clearly defined at clause 4 of the agreement as The Australian Workers' Union Rocla Proprietary Limited and all employees of Rocla Proprietary Limited at the pipeline products plant at Dry Creek. The agreement does pertain to the employer/employer relationship and has been consensually arrived at by the parties.

PN6

Rocla Proprietary Limited is a constitutional corporate as required by the Act and defined in the Australian Corporation laws. The union does have coverage, the Australian Workers' Union does have coverage of the relevant employees of the enterprise and does have at least one member at that site. The agreement was lodged within 21 days of the valid agreement of a majority of employees. The vote for the agreement was taken on 2 October 2003 and the agreement was lodged on 13 October 2003.

PN7

The employer took all reasonable steps to ensure that employees had access to the agreement for 15 days and they were quite particular on that prior to the vote being taken. The terms of the agreement were explained to all persons proposed to be covered in an appropriate way and that was through a FIG, which is a factory improvement group, and all employees had the ability to raise any issues and bring them back to the committee for clarification.

PN8

The identified subgroups required to be identified in the statutory declarations, there is one non-English speaking background employee, I'm instructed that he has a sufficient grasp of English that he could understand all the terms and conditions that would apply to his employment. As I have said, the agreement was approved by a valid majority of workers who cast a valid vote. I'm instructed there is 15 people eligible to vote of which there were 14 valid votes and all of those votes were in favour of the agreement.

PN9

There is nothing in the agreement that will cause employees to suffer any disadvantage, indeed the agreement improves on conditions already contained in the AWU Rocla Industries Award 1999. There is a significant increase in wages which is described as the final appendix to the agreement. Superannuation is phased in to over incentives over time, so that is also paid on the incentives that employees can earn and also super is paid on shift loadings. There's an ability for employees to salary sacrifice additional superannuation over and above that required to be paid.

PN10

The agreement contains a well structured and escalating type dispute resolution procedure at clause 24 and provides for this Commission to conciliate and if required arbitrate any disputes that escalate to that level. The agreements specifies a nominal expiry date of 30 September 2006 which is within the 3 years specified within the Act. We say there are no inconsistencies within the minimum under Division 3 of Part 6A as the agreement does not contain any objectionable preference clauses. The agreement contains an anti discrimination clause at clause 25 which is titled: Equal Employment Opportunity and addresses the criteria at section 170LU(5) of the Act. The agreement applies to a geographically distinct part of the Rocla Proprietary Limited business, being the Dry Creek pipeline product site. Sir, unless you have got any further questions or questions of me I commend this agreement to certification and I'm sure Mr Polanco would take up the opportunity to add his words to that.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Rock. Mr Polanco?

PN12

MR POLANCO: Yes, your Honour, as Mr Rock said we took particular interest with our employees on going to fill the hole in the negotiations, fill up the process. All the time the employees were kept you informed through the consultative committee, through the union, my own person and quite a few occasion by the management itself and during that negotiation there were quite a few issues where the employees had some sort of reservations, all those issues were addressed by the management upon further negotiations and at the end as Mr Rock mentioned the majority, actually 14, now 15 employees voted for the agreement to be certified and in further talks with the employees, with our members, they all sound reasonably happy, if not very happy with the outcome. So the position with Australian Workers' Union and the employees is to support the management and they call for Mr Rock to certify the agreement, our application. Thank you, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Polanco, I'm going to ask Mr Rock just a few questions about the agreement. My questions will not invite him to rewrite the document that was voted upon by the employees but they rather go to clarifying the intention of the parties in a number of respects so that I can consider that in terms of the application. I invite you to indicate if in relation to any of his responses you disagree with that response or indeed want to add something to it.

PN14

MR POLANCO: Thank you, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Rock, can I refer you firstly of all to clause 8 of the agreement and simply seek that you confirm an issue which created a little confusion in my mind when I first read the agreement. The reference to the AMATEC Enterprise Bargaining Award of 1993 is that synonymous with the AWU AMATEC Limited Award of 1990 which ultimately by way of an order issued by Commissioner Lewin in April 2001 appears to now be called the AWU Rocla Industries Award of 1999?

PN16

MR ROCK: Sir, I'm going to refer to Mr Hook on that issue as he is more intimately experienced with it, with your consent.

PN17

MR HOOK: Your Honour - sorry.

PN18

THE SENIOR DEPUTY PRESIDENT: Perhaps before Mr Hook responds, my associate has just pointed out to me that perhaps other than Mr Rock, none of the parties, or none of the persons at the bar table have copies of the agreement. So I shall loan you three copies from my file, it might help in terms of answering my questions. If you don't give them back we won't let you out of the building. The question arises initially as a result of clause 8, but you will see it is a question that recurs a couple of times during the agreement.

PN19

MR HOOK: Your Honour, as I understand the situation there was an award made in 1993 which was the - as its called the AMATEC Enterprise Bargaining Award. It was actually an enterprise agreement and as I understand at that time the company and the union decided to make an award rather than an enterprise agreement which I think was also available to it. It did not supersede the 1990 award which you referred to because there was a 1990 AWU AMATEC Award. This was an enterprise agreement which referred back to that award. As a result of the award restructuring process in I think it was about 1999 the AWU AMATEC Award of 1991 was replaced by the AWU Rocla Industries Award 1999.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. If I look at clause 17.2 on page 6 of the document am I correct in reading that as if it should read: lump sum bonus payments will be made in the pay of the third week?

PN21

MR ROCK: Certainly, sir, that is a typographical error. If I could take you to a further typographical error, sir, there is a reference at clause 23 of the AWU AMATEC Award, I'm instructed that that should in fact be the AWU Rocla Industries Award 1999.

PN22

THE SENIOR DEPUTY PRESIDENT: I see, yes, I understand that now to be the case. I won't make those amendments. I would simply point out that - I think that issue is probably adequately addressed by the operation of clause 3 as the correct award title and by Commissioner Lewin's order which replaces that AMATEC Limited Award with the Rocla one, but you have eliminated the need for me to ask you a question about that provision.

PN23

Clause 20, as it appears on page 7 in the second paragraph on page 7 refers to the proposed development or establishment of a development plan for each employee. Am I to understand that that is intended to happen over the life of this agreement?

PN24

MR ROCK: Your Honour, that clause comes from the previous enterprise agreement clause which related to the establishment of a classification structure. A development plan was required and has been required previously and it will continue.

PN25

THE SENIOR DEPUTY PRESIDENT: So development plans are an ongoing feature.

PN26

MR ROCK: They are an ongoing feature.

PN27

THE SENIOR DEPUTY PRESIDENT: And the clause should be read as: effectively requiring the maintenance of those annual development plans?

PN28

MR ROCK: In effect, that is right.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 26 on page 9 relates to occupational health and safety. It refers to the Rocla Occupational Health and Safety Policy, rehabilitation policy and other company policies directed or related to occupational health and safety issues. Am I to understand that the parties intend or that the parties can advise me that those policies are documented policies, that they are readily available to employees and that they may be changed during the life of this agreement?

PN30

MR ROCK: Your Honour, the policies are readily available, they are in fact at the site. They are contained in what is referred to as the Rocla Safety Manual, that document is referred to by the safety committee that is established at the site and each site has their own safety policy and objects with an overriding safety policy coming from the company that the employees are able to amend or change the objectives during the life of this agreement.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Polanco, are there any issues that you want to raise relative to my questions, or can I take it that you are in agreement with the information provided to me by the company?

PN32

MR POLANCO: Yes, your Honour, I do agree with the answers that have raised - that Mr Rock gave.

PN33

THE SENIOR DEPUTY PRESIDENT: On the basis of that information together with the statutory declarations I'm satisfied the agreement meets the requirements of the Act necessary for certification. It contains the necessary dispute resolution provisions, is a duration envisaged by the Act, it meets the requirements of the no disadvantage test and does not contain provisions which are contrary to the Act. I will certify the agreement with effect from today.

PN34

That certificate will be forwarded out to the parties within the next few days. You will note that it will refer to the various issues about which I have sought clarification. It will not detail the responses because those are recorded on the transcript should it ever be necessary to have regard to them. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.20am]