AG2003/9682, Transcript of Proceedings [2003] AIRCTrans 5439 (8 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5420
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9682

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Boral Resources (Vic) Pty Ltd trading
as Boral Concrete Vic Metro and Another for
certification of the Boral Concrete Plant
Managers Certified Agreement 2003

MELBOURNE

2.17 PM, FRIDAY, 21 NOVEMBER 2003

PN1

MS K. IRWIN: From the Australian Industry Group. I appear on behalf of Boral Resources Victoria. And appearing with me today, your Honour, is MS. R. JARRETT.

PN2

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Winter. Once again, I take it that the parties are asking me to adopt the information contained in the statutory declarations relative to this matter. I note that an application has been made pursuant to section 170XF and I also note that there are issues relative to the time of lodgement of the application. Do you wish to address me in relation to that issue first, Ms Irwin?

PN4

MS IRWIN: Yes, your Honour, in relation to the late lodgement or the 170XF?

PN5

THE SENIOR DEPUTY PRESIDENT: The late lodgment first?

PN6

MS IRWIN: The late lodgment. Your Honour, on that issue I have been instructed that the reason for delay in filing was that again the Australian Industry Group was waiting on the documents to be returned from the union. If it pleases the Commission.

PN7

THE SENIOR DEPUTY PRESIDENT: What can you tell me about the number of employees covered by the agreement at the time the employees voted as distinct from the present time?

PN8

MS IRWIN: Just bear with me for a moment, your Honour. You Honour, I have received instructions that the composition of the workforce has not altered in the time between the date of the vote and the eventual date of lodgment.

PN9

THE SENIOR DEPUTY PRESIDENT: So the same 18 employees who voted on the agreement on 9 September remained in employment on 7 November?

PN10

MS IRWIN: That is correct, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Winter, can you confirm that information too?

PN12

MR WINTER: Yes, I can.

PN13

THE SENIOR DEPUTY PRESIDENT: Very well, I will exercise the discretion provided for in section 111(1)(r) of the Act so as to extend the timeframe for lodgment of the application. Now, Ms Irwin, do you want to address me relative to the section 170XF application?

PN14

MS IRWIN: Yes, your Honour. Your Honour, an application is made under section 170XF of the Act for the Commission to determine an appropriate award for the purpose of deciding whether a certified agreement passes the no disadvantage test. Your Honour, I have been instructed that the type of work performed by the employees to be covered by the agreement essentially involves administration duties, processing of orders, occupational health and safety responsibilities, environment responsibilities as well as supervisory responsibilities.

PN15

As the company is not aware of there being a manger's award, per se, and in relation to the Concrete Plant Batching - or Batching Plants Award it only goes up to 100 percent trade level. I have been instructed that it is believed that the Clerical and Administrative Employees Victoria Award may be appropriate for the purpose of deciding whether the agreement passes the no disadvantage test.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Winter, I understand the logic underpinning the proposed adoption of that particular award, but can you confirm to me that the AWU has coverage of these particular employees?

PN17

MR WINTER: We do under our extensive rules in regard to Concrete Batching. These individuals still perform batching work as the majority of their work. They have taken on some new roles in relation to taking responsibility for OH and S issues, environmental issues, etcetera, but as batchers they would still process the orders and as managers now they still process the orders. What they have basically done - or Boral has done - is got rid of a line of management that used to exist where they had area managers, etcetera, extensive numbers and they have put in a central ordering system and as a result our batchers have taken on additional responsibility but the majority of their tasks have not changed.

PN18

THE SENIOR DEPUTY PRESIDENT: If the majority of their tasks have not changed then how is it that you can put to me that the tasks ought to be best described in the terms set by that Victorian Clerks Award?

PN19

MR WINTER: Well, there are additional tasks that have been put in place and they might be taking control of invoicing, etcetera, taking credit control, etcetera and which they did not do as batchers but they have also picked up.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, you see I am referring to the 170XF application filed on behalf of the employer and in that application the employer asserts that - and I quote:

PN21

The kind of work that the persons under the proposed agreement are engaged in is site management and occupational health and safety management.

PN22

And if I am understanding you correctly you are telling me that, yes, they are engaged in site management and occupational health and safety, but the mainstream functions that they are undertaking reflect the concrete batchers' duties?

PN23

MR WINTER: I would say that they are engaged to perform batching type work. They are employed there to make sure that the orders are filled correctly; the right mixes are put into the concrete. One area where they now have additional responsibility is that the plant operatives would now report to them also. So there has been some change of duties. We had a brief discussion over what was the appropriate award. The agreement still reflects, if you look at the agreement itself, the agreement still reflects a relationship to the Concrete Batching Plants Award.

PN24

Now, the issue that has been brought up by the company is that that award only goes to the trade level but some of the conditions contained in that award still apply.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, indeed, thank you. Ms Irwin, are you able to assist me in that regard? I realise if you have only just been briefed it may be a tall order but you see what is underpinning the question that I am asking is that the proposed award that I determine under section 170XF contains a classification which is the best that I can link to this particular one; it is known as a skill level 6. And it details a range of functions. It involves the application of knowledge of the organisation's objectives and performance and the application of specialist knowledge in areas such as projected growth, product trends and general industry conditions including a knowledge of competitors and major client's market structures in the performance of responsibilities.

PN26

It requires the use of basic statistics to interpret data, statistical tables and frequency tables. The administration of workers compensation claims, insurance and disputed claims. It may involve the planning and organising of work priorities of a unit or a section. It my involve the administration of salary packages, allowances, etcetera, and I must say, I am having a little difficulty reconciling that particular classification with the information given to me by Mr Winter.

PN27

MS IRWIN: Your Honour, my instructions are that if the Commission feels that it may be more appropriate to use the Concrete Batching Plants Award as the award for the purposes of conducting the no disadvantage test that the company would not have an objection to that. I am unaware of the rationale behind the - inserting the Clerical and Admin Employees Victoria Award other than as I have already explained.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Would it be possible for the employer to provide me with a position description for the persons to be covered by this particular proposed agreement?

PN29

MR WINTER: There is actually one in the agreement.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, is there any further information available other than that which I have got?

PN31

MS IRWIN: I believe that further information is able to be furnished.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. If that information were provided to me over the next week and also provided to Mr Winter I can indicate that I would then consider the question of what was the most appropriate award for the purposes of section 170XF. Mr Winter, if within two days of my - of that information being provided to you, you wish to comment on that information then you might do so in writing to my office otherwise I will take it that you have got no further comment to make on this particular issue.

PN33

MR WINTER: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: On that basis I will not be certifying the agreement today but I do think it appropriate that I outline to the parties the various questions that I have about the agreement in the event that I can determine the section 170XF application. It may simply be a case then that I would certify the agreement from the same date. On that basis, Mr Winter, can I presume that you are the resident expert?

PN35

MR WINTER: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Once again, am I to understand that this agreement is limited to a clearly defined greater Melbourne metropolitan area?

PN37

MR WINTER: Correct.

PN38

THE SENIOR DEPUTY PRESIDENT: And that there is no potential for the parties to have a dispute over that particular definition.

PN39

MR WINTER: No, none whatsoever.

PN40

THE SENIOR DEPUTY PRESIDENT: Looking at clause 1.5, is the intention to adopt the entirety of that Victorian appendix?

PN41

MR WINTER: Yes, except for the pay rates, of course.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, you see the reason for asking that question is that clause 1.5 then details four specific clauses giving rise to the question as to whether it is just those clauses or the entirety of the agreement.

PN43

MR WINTER: It is - what we agreed on was the appendix itself and the four clauses from the award. The rest of the award would not apply.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 1.8 details the grievance procedure. Step 4 involves the reference of the matter to the Industrial Relations Commission - - -

PN45

MR WINTER: And we would see that for both conciliation and/or arbitration, if necessary.

PN46

THE SENIOR DEPUTY PRESIDENT: Ms Irwin, are you able to confirm the employer understanding of that particular issue?

PN47

MS IRWIN: It appears that that is a correct interpretation, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Clause 2.10 on page 8 refers to the Boral car policy. Am I to understand that that is a documented policy?

PN49

MR WINTER: Yes, it is.

PN50

THE SENIOR DEPUTY PRESIDENT: That it is readily available to all of the employees who are supplied with a car and that it may be changed during the duration of this agreement?

PN51

MR WINTER: It applies to the two HC plants and it would be the same as the previous. If policies changed there would be negotiations that would be handled under the disputes procedure.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 2.18 envisages the movement of employees to salaried employees. Am I to understand that in that instance those employees would no longer be deemed to be covered by this agreement?

PN53

MR WINTER: Yes, there was an argument in relation to that where there was an offer made which was rejected unanimously that the new plant managers would become salaried employees.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. And that issue has now been agreed upon?

PN55

MR WINTER: That - it is still a reserve matter.

PN56

THE SENIOR DEPUTY PRESIDENT: If I can then take you to appendix B, page 3 and the section relation to performance based termination. Once again, the disciplinary policies or procedures booklet is readily available to employees and may be changed during the life of the agreement?

PN57

MR WINTER: That is correct, again, based on procedures and negotiations and settlement in the Commission if we can't resolve it.

PN58

THE SENIOR DEPUTY PRESIDENT: And appendix C, am I to understand that is the appendix reference in its entirety in clause 1.5?

PN59

MR WINTER: Appendix C. It refers back to those provisions of the award and the Batch Plants pay rates.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, that is the entirety of the document - - -

PN61

MR WINTER: Plus those four clauses.

PN62

THE SENIOR DEPUTY PRESIDENT: - - - referenced in 1.5 plus the four clauses from the award?

PN63

MR WINTER: Correct.

PN64

THE SENIOR DEPUTY PRESIDENT: Ms Irwin, is your position the same as that expressed by Mr Winter, relative to the clauses that I have asked?

PN65

MS IRWIN: Yes, it is, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that subject to the determination of the section 170XF application and the application of the no disadvantage test I see little reason why this agreement would not then be certified. Obviously I am not able to make a determination in that respect but I am satisfied that the agreement meets the fundamental tests apart from the no disadvantage test, insofar as the process whereby it was reached, the inclusion of dispute resolution provision and an appropriate termination date.

PN67

The certificate, if I can in fact certify the agreement, would be sent out to the parties and the date of operation of that certificate would reflect the date upon which I become satisfied as distinct from the parties providing information to me as to the provisions of section 170XF and the application of the no disadvantage test. That certificate would detail the various clauses about which I have sought clarification and again the answers to the questions that I have been provided with would be contained on the transcript should the parties need to have reference to them.

PN68

In the event that I was not satisfied on the issue of section 170XF the matter would be relisted probably by video link so that we could try to resolve the issue. Are you happy with that, Ms Irwin?

PN69

MS IRWIN: Yes, I am, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: Mr Winter?

PN71

MR WINTER: Yes, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [2.33pm]