AG2003/7394, Transcript of Proceedings [2003] AIRCTrans 5110 (19 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/7394

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act by National Union of Workers - South Australian Branch and Another for certification of the Allied Mills Australia Pty Ltd Mile End (S.A.) Enterprise Agreement 2003

ADELAIDE

11.00 AM, WEDNESDAY, 5 NOVEMBER 2003

PN14

THE SENIOR DEPUTY PRESIDENT: Good morning. Can I have some appearances please?

PN15

MR TRENOUTH: I appear on behalf of the National Union of Workers.

PN16

MR D. AINGER: I appear on behalf of Allied Mills.

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Trenouth?

PN18

MR TRENOUTH: Thank you, Senior Deputy President. This is an application made pursuant to Division 2 of Part VIB of the Workplace Relations Act, 1996 between the National Union of Workers and Allied Mills Australia Pty Ltd. This application is in relation to an agreement in writing that matters pertaining to the relationship between the employer, Allied Mills Australia Pty Ltd, the constitutional corporation and all persons who, at any time when the agreement is in operation, are employed on the part of a single business whose employment is subject to the agreement.

PN19

In accordance with section 170LJ, where the employers made the agreement with one or more organisations of employees where each organisation has at least one member employed in the part of the single business, the agreement was approved by a valid majority of the employers to be bound by the agreement and the employer made reasonable steps to ensure employees had access at least 14 days before approval was given to the agreement in writing and the terms of the agreement were explained to all employees.

PN20

Senior Deputy President, the agreement has been generally approved by a valid majority of employees. The terms of the agreement have been explained in accordance with 170LT Part VII. The agreement at clause 13 includes procedures for preventing settlement disputes and the agreement is due to expire on 31 August 2005. The parties therefore seek the approval of the application pursuant to section 170LT. Thank you.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Trenouth. Mr Ainger?

PN22

MR AINGER: Sir, if the Commission pleases, we would certainly agree with the submission put forward by the NUW and wish the agreement to be certified.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ainger, I'm going to ask Mr Trenouth a few questions about the agreement. My questions don't invite him to re-write the document that was voted on by the employees but they instead go toward clarifying issues that I would rather clarify and understand now as an alternative to regretting that I didn't do so at a later stage. They also go to issues which I will need to take into account in consideration of the application.

PN24

If you feel that you are either better equipped to answer the questions that I address to Mr Trenouth, I can assure you, from my past experience, that he won't object to you doing so. Equally, I would issue and invitation that if you wish to expand upon or indeed, dispute an answer that he gives me, you should feel free to do so.

PN25

Mr Trenouth, can I take you to clause 6 of the agreement, first of all. With reference to subclause B, am I correct in my understanding of the intention of the parties in that the parties intend that the provisions of the previous agreements, which are now superseded, particularly insofar as they impact on work practices or work arrangements, will continue to apply unless they are changed in accordance with clause 7 of this particular agreement?

PN26

MR TRENOUTH: That is correct, Senior Deputy President.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 8 establishes the wage increases. Perhaps this question is best addressed to Mr Ainger. Mr Ainger, in order to consider the provisions of the agreement in this respect, is it possible for the parties to provide me with a schedule that shows either the starting point for the application of those wage increases or indeed that shows the planned wage increases to be granted in accordance with clause 8?

PN28

MR AINGER: Yes, certainly that is possible, Deputy President. We actually brought that information with us this morning so I can table that information if you wish?

PN29

THE SENIOR DEPUTY PRESIDENT: Has the information been shown to Mr Trenouth?

PN30

MR AINGER: Not at this stage. No.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. It might be best if it were shown to him first of all. If he is in a position to agree to it today then I shall note it accordingly or alternatively I am happy to provide him with the opportunity to consider it. I infinitely prefer the parties to be saying to me, we are agreed as to what constitutes the base point for the application of these wage increases.

PN32

MR AINGER: Yes, sir.

PN33

MR TRENOUTH: Yes, Senior Deputy President, I may perhaps take the latter course and just seek some instruction about the rates and then provide them if we are happy, to the Commission.

PN34

THE SENIOR DEPUTY PRESIDENT: On the basis that you would be considering the document that you have been given, I am happy to receive from Mr Ainger, a copy of that document which would then allow you, Mr Trenouth, to simply fax or email my office to say that you are in agreement with the document.

PN35

MR TRENOUTH: Yes.

EXHIBIT #AM1 WAGES SCHEDULE

PN36

THE SENIOR DEPUTY PRESIDENT: Mr Trenouth, how long do you think you might need to be able to consider the information contained in this document?

PN37

MR TRENOUTH: I would like to do it today or by the end of tomorrow at the latest. It shouldn't take me very long at all.

PN38

THE SENIOR DEPUTY PRESIDENT: So if I haven't heard from you within a week, I would be able to reasonably assume there was a problem somewhere.

PN39

MR TRENOUTH: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Clause 9 specifies in the last paragraph, that a performance feedback system is to be trialled. Is that system a documented system?

PN41

MR TRENOUTH: I might ask for some assistance on that matter.

PN42

MR AINGER: It is a documented system, although it hasn't actually been trialled at this stage, but certainly the company is in a position where it could submit that information, if the Commission - - -

PN43

THE SENIOR DEPUTY PRESIDENT: No, I'm not asking for the document. I'm simply wanting to establish that first of all, it is a documented system and secondly, by definition, am I correct in understanding that as a trial, it is intended that documentation may change over the life of the agreement?

PN44

MR AINGER: It certainly - yes, it is certainly possible for that document to change over the life of the agreement, yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Clause 10 relates to skill development and training. It refers in the fourth paragraph to the National Competency Standards. Now, those competency standards are generally documented, but in the event that those standards were to change, is it intended that those changes would be automatically adopted with reference to the classification levels for Mile End employees, or is it intended that those classification levels be linked to the National Competency Standards as they exist at the time of this agreement?

PN46

MR AINGER: The intention is that they would be linked as at this point of time, but that is not to say that there wouldn't be further discussions between the parties in the event that those competency standards altered.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 11.2(d) refers to ordinary pay. Am I to understand that ordinary pay is then the rate specified as a gross figure in the document that I have called AM1?

PN48

MR AINGER: That is correct.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 17 on page 11 relates to labour hire casuals. Now, to what extent - and it might perhaps be a question best addressed to Mr Ainger - but to what extent am I to understand that that clause is simply a statement of intention and does not purport to represent a binding obligation imposed upon a third party, being a labour hire firm, who is not a party to this agreement?

PN50

MR AINGER: That is right, Deputy President. It has been framed in such a way that it does not put an obligation on a third party. The obligation is upon the company to reach agreement with a labour hire firm to pay those rates for people who are engaged at our site. As I say, the obligation isn't on the third party and there's no obligation on that labour hire firm or any labour hire firm providing labour, to pay those rates, if they don't wish to do business with Allied Mills.

PN51

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Can I then take you to appendix A which details the export roster. If I look at clause B(1) and then look at clause B(6), how do you put to me that I should reconcile those figures as weekly rates, with those that are articulated in AM1?

PN52

MR AINGER: Yes, if I could just explain there, Deputy President. The rates in B(1) incorporate various penalties for working 7 days a week, so weekend penalties and they - there is a calculation which can be made available to the Commission if you wish, just to outline the reasons as to why those rates are what they. But there is definitely a formula there which has been used and which has been agreed to by the parties, so that it incorporates some of those penalties, which normally would be paid for people working on weekends through that period of time.

PN53

THE SENIOR DEPUTY PRESIDENT: I see, so those rates are inclusive of any penalties for that particular four-shift, 7-day roster?

PN54

MR AINGER: That is right. It includes weekend penalties and also the rotating shiftwork - the afternoon shift and night shift.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you. They derive at least in part from those rates set out in AM1?

PN56

MR AINGER: Correct.

PN57

THE SENIOR DEPUTY PRESIDENT: So is it fair then to understand that as the rates in AM1 increase, so too would the rates for the 7-day export roster?

PN58

MR AINGER: That is correct.

PN59

THE SENIOR DEPUTY PRESIDENT: And B(6)?

PN60

MR AINGER: Yes, B(6) is the rates which are outlined in the document which was submitted earlier, AM1. It is consistent with those rates, which are the new rates which apply on the new enterprise agreement.

PN61

THE SENIOR DEPUTY PRESIDENT: I see, so they relate to the - I see, yes, thank you.

PN62

MR AINGER: Yes, I suppose I should explain there, the topman is the level 5. That is the terminology which is used in the milling business, topman level 5.

PN63

THE SENIOR DEPUTY PRESIDENT: Mr Trenouth, you escaped very lightly in terms of my questions, because Mr Ainger answered most of them. Can I presume that you are in agreement with all of his answers?

PN64

MR TRENOUTH: Yes, I am, Senior Deputy President.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, I can indicate to the parties that I am satisfied that the agreement has been reached through a process consistent with the Act, such that employees were able to make an informed choice to vote in favour of it. I am equally satisfied that the agreement is of a duration consistent with the requirements of the Act and that it contains the necessary dispute resolution provisions. The agreement does not contain provisions which are contrary to the Act and I can advise that subject to receipt of advice from Mr Trenouth to the effect that the NUW is in agreement with AM1, I would propose to certify the agreement with effect from that date.

PN66

In the event that Mr Trenouth's advice was either not received or alternatively, that it detailed a problem associated with AM1, then the matter would be re-listed, so that we could try to sort out that difficulty. In that regard, Mr Ainger, I understood you have come from a foreign place and we would endeavour to re-list the matter, giving you the option of a video hearing. I don't expect that that is going to be likely in any event. If I can certify the agreement, then the certificate which would take effect from the date upon which I receive the advice from Mr Trenouth, would detail the various clauses about which I have sought clarification.

PN67

It would not detail the responses because those are recorded on the transcript, if it were ever necessary to have regard to them. That certificate would then be sent out within a few days of receipt of Mr Trenouth's advice. On the basis that I would be very optimistic that the agreement can be certified, I will take the opportunity of congratulating the parties on reaching this agreement and to express my hope that you don't need to give that dispute resolution provision too much exercise. I will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [11.20am]

PN68

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AM1 WAGES SCHEDULE PN36