AG2003/9686, Transcript of Proceedings [2003] AIRCTrans 5446 (8 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 5418

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9686

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Bayside Aust Pty Ltd and Another
for certification of the Bayside Aust
Pty Ltd Certified Agreement 2003-2006

MELBOURNE

1.15 PM, FRIDAY, 21 NOVEMBER 2003

PN1

MR B. SHAW: I seek leave to appear for the applicant company. With me is MR RENEE PETERSON and MR RYAN PETERSON, the employee representative.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes. Leave is granted, Mr Shaw.

PN3

MR SHAW: Thank you.

PN4

THE SENIOR DEPUTY PRESIDENT: I can also advise you that I have read both your statutory declaration and that of Mr Ryan Peterson. I take it that both you and he ask that I endorse that statutory declarations?

PN5

MR SHAW: Yes. The first statutory declaration is in fact by Jenny Peterson.

PN6

THE SENIOR DEPUTY PRESIDENT: I see. Yes.

PN7

MR SHAW: And the second - - -

PN8

THE SENIOR DEPUTY PRESIDENT: That is correct.

PN9

MR SHAW: - - - is by Mr Ryan Peterson in response to your request for an employee stat dec and a representative.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes indeed.

PN11

MR SHAW: And the short answer to your question is yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Very well. You can also take it that I have considered the section 170XF determination request. I am prepared to accede to that request and will make that determination. Subsequently the Plumbing Trades (Southern States) Construction Award 1999 will be determined as the appropriate award for this purpose.

PN13

MR SHAW: Thank you, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: If there are particular submissions that you want to put to me, Mr Shaw, I am happy for that to occur. I am also alternatively happy to proceed on the basis that I would ask you and particularly Mr Peterson a number of questions about both the process and indeed the agreement itself.

PN15

MR SHAW: Well, that - - -

PN16

THE SENIOR DEPUTY PRESIDENT: But I will hear any submissions you want to put to me.

PN17

MR SHAW: Well, the agreement itself, as you will see, is an agreement which treats the award as a minimum, so we say that it - and it doesn't attempt to cover the field, so we say it passes the no disadvantage test on that basis. As far as any particular aspects concerning the process are concerned, without me going through - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19

MR SHAW: - - - section 170LT and LU it might be we would get to the nub of it more quickly if you asked the questions.

PN20

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you. Mr Peterson, you are here today as the employee representative. Is that correct? Are you an elected employee representative or are you better described as one of the employees to whom it is proposed this agreement apply?

PN21

MR RYAN PETERSON: Just a leading hand. I am just an employee.

PN22

THE SENIOR DEPUTY PRESIDENT: I see. So you didn't pay a particular part in the negotiation of the agreement?

PN23

MR RYAN PETERSON: No.

PN24

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Now, can you confirm for me that on or about 16 October you received a letter from the employer advising of the intention to make the agreement?

PN25

MR RYAN PETERSON: That is correct.

PN26

THE SENIOR DEPUTY PRESIDENT: And that letter also confirmed that if you wished to be represented by a union you could be so represented?

PN27

MR RYAN PETERSON: Yes, that is correct.

PN28

THE SENIOR DEPUTY PRESIDENT: Are you aware that other employees received a letter of a similar nature?

PN29

MR RYAN PETERSON: We all received it at the same time.

PN30

THE SENIOR DEPUTY PRESIDENT: Are you aware of whether anybody sought such an agreement?

PN31

MR RYAN PETERSON: I am not - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Such union representation?

PN33

MR RYAN PETERSON: No, I am not aware.

PN34

THE SENIOR DEPUTY PRESIDENT: Very well. Now, Mr Peterson, I am going to ask Mr Shaw a couple of questions about the agreement proposal. My questions don't invite him to re-write the document that the employees voted to endorse. They rather go to the clarification of the way in which I should understand the document. If you disagree with anything that Mr Shaw says to me, please feel free to pop up and tell me just that. If you want to add anything you can do that too. Do you have a copy of the agreement there in front of you?

PN35

MR RYAN PETERSON: No, I haven't got one in front of me.

PN36

THE SENIOR DEPUTY PRESIDENT: Look, our system works as such that we come equipped for that problem.

PN37

MR RYAN PETERSON: Okay, right.

PN38

THE SENIOR DEPUTY PRESIDENT: And I shall loan you a copy from the Commission's file. Mr Shaw, can I take you to clause 5.1.1?

PN39

MR SHAW: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: It relates to wages.

PN41

MR SHAW: Yes.

PN42

THE SENIOR DEPUTY PRESIDENT: Is the agreed productivity component subject to a documented understanding?

PN43

MR SHAW: My understanding it is subject of simply an agreement between the parties. I probably had better get instructions on that actually, but I think it is just an - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Feel free to do so.

PN45

MR SHAW: Yes. It is purely an arrangement made between the employer and each employee. Its documentation is in the payslip.

PN46

THE SENIOR DEPUTY PRESIDENT: I see, and am I to understand that the reference to wages set out in the award includes the allowances specified in clauses 10, 11, 12 and 13 of the award?

PN47

MR SHAW: Yes, it does.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. 5.1.2 refers to the requirement that wage rates for work performed on commercial building and construction work might vary, but shall at all times remain in excess of the applicable award rates of pay.

PN49

MR SHAW: That is a clause designed to enable the rates to be varied which, as you would appreciate at common law they really can't be. Or they can be varied upwards but very few people agree to have them varied downwards, for when the company is working on sites which may, for example, be governed by - generally governed by LJ agreements that have terms which may be in excess of these.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 6 refers to hours of work. Can you tell me what arrangements will apply then to employees who work on sites where a 36 hour week is applicable?

PN51

MR SHAW: This particular company won't be, is my instructions, working on such sites.

PN52

THE SENIOR DEPUTY PRESIDENT: Throughout the life of this agreement?

PN53

MR SHAW: As far as can be predicted obviously. I - - -

PN54

THE SENIOR DEPUTY PRESIDENT: I see. Well, is it fair then to characterise this provision then as simply providing for a 38 hour week?

PN55

MR SHAW: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. Meaning that if a 36 hour week was to be arranged, time off associated with that 36 hour week would be on an unpaid basis?

PN57

MR SHAW: Yes, or alternatively employees may in fact - which is perfectly possible, be transferred to another site to enable them to continue working a 38 hour week. If the 36 hour week was on an RDO or PLD basis.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 6.2 relates to inclement weather. Are the procedures to apply to inclement weather arrangements documented procedures?

PN59

MR SHAW: The procedures would be the award procedures, other than those words there.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN61

MR SHAW: In fact, in reality the award does also allow for transfers from site to site, but it has just been put in here to make it more open and transparent.

PN62

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7.3 relates to vehicles. Are there guidelines relative to the arrangements that apply for the use of enterprise provided cars?

PN63

MR SHAW: Other than the fact that the employees have the full use of their cars, the short answer is no. These are the sole guidelines.

PN64

THE SENIOR DEPUTY PRESIDENT: I see.

PN65

MR SHAW: In other words, they have full use of a vehicle, both in their own time and in the work time, subject to these particular conditions.

PN66

THE SENIOR DEPUTY PRESIDENT: And there are no constraints on that use?

PN67

MR SHAW: None that I am aware of.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. 7.4 relates to alcohol. What happens if an employee considers they have a blood alcohol reading of greater than .05?

PN69

MR SHAW: If they believe they have a level greater than .05 and they report accordingly they would in fact be asked to leave work and subject to legal constraints would probably not be paid.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN71

MR SHAW: I mean, in other words, it is a clause that is going to highlight the fact that you simply shouldn't have alcohol in your blood.

PN72

THE SENIOR DEPUTY PRESIDENT: I see.

PN73

MR SHAW: As we all know it affects WorkCover.

PN74

THE SENIOR DEPUTY PRESIDENT: And I presume that - - -

PN75

MR SHAW: It affects WorkCover, it affects everything else so - - -

PN76

THE SENIOR DEPUTY PRESIDENT: Is it safe for me then to presume that repetition of that instance might result in some form of disciplinary action?

PN77

MR SHAW: Yes.

PN78

THE SENIOR DEPUTY PRESIDENT: Thank you. 7.6 relates to company policies. 7.6.2 relates to the variation of normal hours of work. Am I correct in understanding then that in the event of that variation employees would still be paid in accordance with the provisions of the award?

PN79

MR SHAW: Yes, they would.

PN80

THE SENIOR DEPUTY PRESIDENT: And 7.7 indicates that the enterprise the employees will not pursue any extra claims either award or over award. Am I correct in understanding that given the dependence of this agreement on the award the capacity exists to recognise ongoing changes to the award as they may occur?

PN81

MR SHAW: Yes, that is true. It really is a commitment on these particular employees not to initiate such changes, but changes made in the award would be reflected in the working conditions.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Shaw. Mr Peterson, do you want to comment at all on the answers given to the questions that I have asked of Mr Shaw?

PN83

MR RYAN PETERSON: No.

PN84

THE SENIOR DEPUTY PRESIDENT: Can I take it you are in agreement with all those answers?

PN85

MR RYAN PETERSON: Mm.

PN86

THE SENIOR DEPUTY PRESIDENT: On the basis then of the information provided to me by the parties in the statutory declarations and the responses to my questions by Mr Shaw, I am satisfied that the agreement was reached through a process consistent with that detailed in section 170LK of the Act. The agreement meets the requirements of the no disadvantage test when measured against the Plumbing Trades (Southern States) Construction Award of 1999. It is of a duration envisaged of the Act.

PN87

It contains the necessary dispute resolution provision and does not contain provisions contrary to the Act. I will certify the agreement with effect from today. The certificate will be forwarded out to the parties within the next few days. The certificate will identify the various clauses about which I have sought clarification. It will not detail the answers that I have been given. Those are recorded on the transcript in the event that the parties required to have access to them at some point in the future. I congratulate the parties on reaching this agreement and hope that it benefits both the employees and the employer.

PN88

MR SHAW: Thank you, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [1.26pm]