AG2003/9681, Transcript of Proceedings [2003] AIRCTrans 5440 (8 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5419

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9681

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Boral Resources (Vic) Pty Ltd
t/as Boral Concrete Vic Metro and Another
for certification of the Boral Concrete
Enterprise Bargaining Agreement (Plant
Operative) 2003

MELBOURNE

2.00 PM, FRIDAY, 21 NOVEMBER 2003

PN1

MS K. IRWIN: I am from the Australian Industry Group and appearing with me this afternoon is MS R. JARRETT from the company.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Irwin. Ms Irwin, can I take it that you ask me to adopt all of the information contained in the employer's statutory declaration?

PN3

MS IRWIN: Yes, your Honour. I believe that would be my instructions, yes.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN5

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

PN6

THE SENIOR DEPUTY PRESIDENT: Can I take it, too, that you propose that I adopt all of the information contained in the union's statutory declaration too?

PN7

MR WINTER: Yes, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Ms Irwin, I am to some extent in your hands. I am quite happy to proceed on the basis that I will simply ask you the questions that I have about the agreement, and if there are any comments of a preliminary nature that you want to make I don't want to constrain you.

PN9

MS IRWIN: Your Honour, I believe that we need to seek an extension of time for the lodgment of this matter.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, it appears to be the case.

PN11

MS IRWIN: The preliminary issue that needs to be addressed. We seek for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21 day time limit prescribed in section 170LM(2). The Commission will have noted that while the agreement was approved by employees on 8 August 2003 it was not in fact filed until 7 November 2003. I have been instructed that there was some delay whilst awaiting the signed copies of the statutory declarations from parties, your Honour.

PN12

The stat dec from the company was not received back at our office until 29 September, and the stat decs from the union was not received until 31 October. Your Honour, I do have a statutory declaration prepared by the company indicating that there has been no alteration to the composition of the workforce in the time between the vote and the date of lodgment.

PN13

THE SENIOR DEPUTY PRESIDENT: So the same nine employees who voted on the agreement exist now?

PN14

MS IRWIN: That is my instructions, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN16

MS IRWIN: If you have - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, I have received that, thank you. Mr Winter, can you confirm - - -

PN18

MR WINTER: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: - - - to the best of your knowledge there is no change in the number of employees?

PN20

MR WINTER: No, there has been no change whatsoever, and the reason for the late lodgment clearly was we received the documentation from the AIG on 24 September. I was on leave for part of September/October and that is why the documentation was late, and we do apologise and ask you to also use your discretion.

EXHIBIT #B1 ADDITIONAL STATUTORY DECLARATION RE EXTENSION OF TIME SOUGHT

PN21

THE SENIOR DEPUTY PRESIDENT: I will use the discretion provided for in section 111(1)(r) of the Act so as to extend the timeframe for lodgment of the application. Now, it might be best, Mr Winter, if I address the various questions that I have about the agreement to Ms Irwin.

PN22

MR WINTER: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: But can I indicate to you that so far as my questions relate to the actual agreement I do not propose to Ms Irwin that she modify or change the agreement in any way, as this was a document voted upon by the employees. My questions instead go to a number of issues that I will need to take into account in the decision to certify the agreement, and in some cases reflect a desire to clarify the provisions of the agreement, lest I regret not doing so at some future stage.

PN24

MR WINTER: Yes. So I might be able to assist. I was involved in the negotiations directly.

PN25

THE SENIOR DEPUTY PRESIDENT: Very well. Well, look, if there are any comments that you want to make relative to the answers provided to me by Ms Irwin, please feel free to jump up and make those comments. Ms Irwin, if you think it is better that I address my questions to Mr Winter tell me at a very early stage.

PN26

MS IRWIN: Your Honour, as I was not involved in the negotiations of the agreement, in fact I picked up the file this morning - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Well, let us reverse the order.

PN28

MS IRWIN: - - - it may be more appropriate to direct your questions at first instance to Mr Winter. Thank you.

PN29

THE SENIOR DEPUTY PRESIDENT: Well, let us reverse the order.

PN30

MR WINTER: I might regret that, but - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Mr Winter, the first questions doesn't actually relate to the agreement. It does relate to the statutory declaration. The statutory declarations are expressed in identical terms. They talk, at paragraph 6.4, of hard copies being provided to the committee and all plant operatives. Now, given that the matter listed following this matter has a phraseology identical to this, can you tell me what is meant by that particular provision?

PN32

MR WINTER: Yes, I can explain how the agreement was negotiated. Historic and - it might cover the other application as well. Historically the agreements we have with Boral Concrete were for all concrete batches, and historically they had batches or man in charge, and then you will have another level of management on top of that. A number of years ago they introduced a central auditing and they introduced plant managers, and the batches themselves basically become plant operatives. So there are two agreements now instead of one.

PN33

We established the consultative committee, made up of the plant managers and the operatives to negotiate both agreements, and when the plant operatives agreement was finalised and the committee was happy with that, then hard copies of the agreement were provided to each of the plant operatives.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. The first question relative to the agreement goes to the clause 1.3, the application clause.

PN35

MR WINTER: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: It establishes that the agreement has application within the State of Victoria. The agreement is however called the Metro Agreement. Should I draw any distinction between the use of the word "Metro", which is different to the formal name of the employer, and the application of the agreement?

PN37

MR WINTER: Yes. Boral has a number of agreements and of course a number of concrete batching plants throughout Victoria. The agreement will only apply to those batch plants known as the metropolitan batching plants. They cover areas of Melbourne from Deer Park out to Healesville, and there is a separate, totally separate agreement for those country batch plants.

PN38

THE SENIOR DEPUTY PRESIDENT: Where does it say that, Mr Winter?

PN39

MR WINTER: I suppose it is historical. This is about the fifth agreement we have had, and it has always been - they have a division - - -

PN40

THE SENIOR DEPUTY PRESIDENT: You see, I am a foreigner so I wouldn't necessarily know.

PN41

MR WINTER: They have a division with Boral and it is - what happens is you have got a metropolitan manager of concrete, which is a Mr Burton. He manages - he is in charge of concrete within that metropolitan zone, and he is responsible for those metropolitan batch plants. You then have a country division which takes in, of course, the country batch plants, and historically it has been known as either metropolitan batch plants or country batch plants, and the employees are clearly aware of what batch plants, the union is aware of what batch plants are covered by this agreement and which are not.

PN42

THE SENIOR DEPUTY PRESIDENT: So there is no potential for confusion as to whereabouts this award applies?

PN43

MR WINTER: No, because - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Notwithstanding the - sorry, this agreement applies. Notwithstanding that it doesn't define its area of - - -

PN45

MR WINTER: No. Historically it has been - that wording has been used for, as I said, the last five agreements.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN47

MR WINTER: And there has never been a problem.

PN48

THE SENIOR DEPUTY PRESIDENT: Clause 1.5 refers to the Concrete Batching Plant Award of 1985, Victoria Paid Rates Appendix. Now, paragraph 7.1 of the statutory declaration makes reference to the Concrete Batching Plant Award of 1999. If I understand correctly the Concrete Batching Plant Award of 1999 has formal application. Am I to take it though that the parties agree to adopt that Concrete Batching Plant Award of 1985, Victoria Paid Rates Appendix, as it stood at 1 June 1998, in lieu of any application of that Concrete Batching Plant Award of 1999?

PN49

MR WINTER: That is correct. That is a historical component that the Paid Rates Award - and many of the conditions contained in that used to - or have always applied.

PN50

THE SENIOR DEPUTY PRESIDENT: Clause 2.5 relates to key performance indicators. Am I to understand that the performance bonus will be paid on an annual basis?

PN51

MR WINTER: To my knowledge the performance bonus - the company may be in a better position to answer that than myself.

PN52

THE SENIOR DEPUTY PRESIDENT: Very well. Ms Irwin, can you assist me in that regard?

PN53

MS IRWIN: I have just received instructions, your Honour, that it is an annual bonus.

PN54

THE SENIOR DEPUTY PRESIDENT: Very well. Now, before you take your seat, can you also advise me, and upon this issue you may need to obtain instructions, in the event that the performance objectives detailed in clause 2.5 are not fully achieved, is the bonus paid in part? Is it delayed? And if so, is it then paid at a later stage upon consequent achievement of those particular targets?

PN55

MS IRWIN: Just bear with me for a moment, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN57

MS IRWIN: My instructions, your Honour, are that it would be if the targets were not achieved, the bonus would be paid in part, obviously relative to those - to what has been achieved, and there would be no delay.

PN58

THE SENIOR DEPUTY PRESIDENT: On a pro rata basis?

PN59

MS IRWIN: Yes. But there would be no delay of that.

PN60

THE SENIOR DEPUTY PRESIDENT: Well, if it is paid in part, let me put it to you by way of an example. Let us say 50 per cent of the targets are achieved. Then 50 per cent of the annual payment will then be made.

PN61

MS IRWIN: That is my understanding of how it would operate.

PN62

THE SENIOR DEPUTY PRESIDENT: If at some point later in the year all of those targets were then being achieved, is the bonus payment then increased from the date upon which those targets are then achieved?

PN63

MS IRWIN: I understand, your Honour, that the way the bonus operates is that it is annualised, so it is based upon a whole year, so if it is not met in one year it would be a pro rata. Then it would start again for the next year.

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you, and that reflects an understanding that you can live with, Mr Winter?

PN65

MR WINTER: That is what has occurred in the past.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 2.12 relates to an additional benefit negotiated as part of this agreement. I wonder whether you might put that in English for me?

PN67

MR WINTER: Well, it is basically a payout of RDOs. If you have banked a certain number of RDOs, and you have got to keep a minimum of 30 hours, if you - - -

PN68

THE SENIOR DEPUTY PRESIDENT: So there is a minimum of 30 hours worth of RDOs that must be retained?

PN69

MR WINTER: That is correct. Anything above that you can seek and it is voluntary. You can ask that they have them paid out.

PN70

THE SENIOR DEPUTY PRESIDENT: I see. But there is no - I should not read that as a requirement that a minimum of 30 hours of RDOs, of accumulated RDOs has to be retained at any one point in time. It is simply a case that having achieved a minimum of 30 hours payout may be made at the request of the employee.

PN71

MR WINTER: No. You must always keep a minimum of 30 hours in your bank.

PN72

THE SENIOR DEPUTY PRESIDENT: I see.

PN73

MR WINTER: And anything above that, then you can request, and it normally only happens at - the provision we have got in place, once a year the employee can say, "Well, look, I have got 65 hours. I would seek to have 35 hours paid out."

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.3, but as it appears on page 8, indicates in the very last sentence of that subclause that an exchange of letter to confirm the make-up of the redundancy component and notice component will be lodged with the Commission. When might the Commission expect that exchange to be made?

PN75

MR WINTER: I actually think that that is left over from an old agreement. I think that may have occurred two agreements ago. I would have to check, but that hasn't changed within the structure of this agreement. It was first introduced I am pretty sure two agreements ago, so it could have been four years ago, and that letter would have been put in the file when that original agreement was certified.

PN76

THE SENIOR DEPUTY PRESIDENT: Ms Irwin?

PN77

MS IRWIN: Again, your Honour, my instructions are that that clause is in fact a reference to a previous agreement that has obviously been left in as this agreement has kind of rolled over from previous generations.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. But has the exchange of letters occurred and been provided to the Commission for reference on a file somewhere in the Commission?

PN79

MS IRWIN: Unfortunately, Renee is unable to confirm that at this point in time, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: I see. Would it be possible to chase that down in the next few days, and perhaps provide a copy to Mr Winter and a copy for me for retention on the Commission's file?

PN81

MS IRWIN: Certainly, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you, and finally, Mr Winter, if I could take you to appendix A, which references, about halfway down page 11, and again twice on page 12, company policies and manuals on occupational health and safety environment, smoking and harassment. Am I to understand that those policies and manuals are documented, are readily available to all employees, and may be changed during the life of this agreement?

PN83

MR WINTER: Yes, and we had a big argument about that. We had some concerns about that, but we have agreed on a process, and if there was changes to those manuals then the parties would have discussions on negotiations in regard to those changes, and if necessary, if we didn't agree with any of those changes we could use the disputes procedure of the agreement to bring it to the Commission to have it resolved.

PN84

An example of that would be, especially in the managers agreement, managers now have taken responsibility of environmental issues, and there are some issues and were concerns from our membership about that particular issue, as there was an incident a couple of years ago, or a few years ago now at one of the particular batch sites. But we have put in a process that those manuals, should they be changed, then the parties would meet to discuss the changes and if necessary invoke the disputes procedure.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Irwin, are you able to confirm to me your agreement with all of the information provided to me by Mr Winter?

[2.16pm]

PN86

MS IRWIN: Yes, I am, your Honour, obviously pending us also taking those extra steps of chasing down those letters from the redundancy.

PN87

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that on the basis of the statutory declarations provided to me and the information provided to me today I am satisfied that the agreement meets the requirements of the Act insofar as it was arrived at by a valid majority of employees. I am satisfied that the agreement itself contains the requisite dispute resolution procedure, is of a duration envisaged by the Act and meets the requirements of the no disadvantage test and does not contain provisions which are contrary to the Act.

PN88

I will certify the agreement. The date of certification will reflect the date upon which I receive the advice from the employer that reflects the agreed provision relative to redundancy payment and notice arrangements referenced in clause 3.3. Once I receive that advice, which I would expect to receive within the next week, a certificate will be forwarded out to the parties. That certificate will identify the various clauses about which I sought clarification. It will not detail the answers that I have been given because those are recorded in the transcript if it were ever necessary to have regard to them.

PN89

I congratulate the parties on reaching this agreement and trust that it works well for both parties as you work towards version six. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [2.17pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 ADDITIONAL STATUTORY DECLARATION RE EXTENSION OF TIME SOUGHT PN21