AG2003/527, Transcript of Proceedings [2003] AIRCTrans 879 (18 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/527

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by NMHG Distribution and Another for certification
of the Hyster South Certified Agreement 2003

ADELAIDE

11.00 AM, THURSDAY, 27 FEBRUARY 2003

PN1

THE COMMISSIONER: Yes, I will take appearances, thanks.

PN2

MS P. NOWACKI: Good morning, I am here to represent the company this morning for the certification of the Hyster South Certified Agreement 2003.

PN3

THE COMMISSIONER: Thanks, Ms Nowacki, yes. Who else do we have?

PN4

MS S. NUROO: I am the HR adviser for the company.

PN5

THE COMMISSIONER: Ms Nuroo, thank you.

PN6

MR SAUNDERS: I am the General Manager of Hyster South.

PN7

THE COMMISSIONER: Mr Saunders and Mr Smith?

PN8

MR S. SMITH: Steve Smith, yes. I'm the employee representative.

PN9

THE COMMISSIONER: Thank you. Now, are you going to be speaking to this, Ms Nowacki?

PN10

MS NOWACKI: I don't think there's much further that needs to be said from the material that has been filed. We are satisfied this morning that the certified agreement, that you have a copy of, sir, satisfies the no disadvantage test and the requirements of the Workplace Relations Act. I think your associate also passed up to you a letter of undertaking that was made purely for the purposes for the employees to clarify a couple of issues in relation to wages, termination notice, and independent review of the document. We were just wondering if that could also be placed on the file, or could be certified as part of the agreement?

PN11

THE COMMISSIONER: Yes. Well, under the Act, I'm entitled to accept undertakings of the parties. I don't think it needs to become part of the agreement as such unless you - - -

PN12

MS NOWACKI: I don't think there's any reason for it to become part of the agreement but if it could be left on the file in case it is needed.

PN13

THE COMMISSIONER: It can certainly be left on the file. I'm happy to do that. I think my options in that regard are under section 170LV - - -

PN14

MS NOWACKI: That is correct.

PN15

THE COMMISSIONER: - - - of the Act which enables me to accept an undertaking from one or more of the persons who made the agreement in relation to the operation of the agreement, and is satisfied that the undertaking meets the Commission's concerns to certify the agreement. It doesn't have to be part of the agreement as such. The - - -

PN16

MS NOWACKI: No, it doesn't, and it has been signed off from all the parties present today so - - -

PN17

THE COMMISSIONER: Yes. The purpose of the undertaking, just to go through this again?

PN18

MS NOWACKI: The purpose of the undertaking isn't to change the certified agreement in any way. It is purely just to clarify a few issues, I guess, and simplify them in relation to some of the clauses of the certified agreement.

PN19

THE COMMISSIONER: Yes. You have had a look at this Mr Smith?

PN20

MR SMITH: Yes, sir.

PN21

THE COMMISSIONER: Are you happy with this - that this, in fact, reflects the agreement?

PN22

MR SMITH: That is correct, yes.

PN23

THE COMMISSIONER: Right. Just one other matter, Ms Nowacki. Clause 13.3 of the agreement - - -

PN24

MS NOWACKI: The clause that deals with surplus employees?

PN25

THE COMMISSIONER: Yes. There was just one issue in regard to that. 13.3:

PN26

Where an employee refuses to accept an alternative position within the Adelaide metropolitan area if employed at the Wingfield depot, the Mount Gambier area if employed at the Mount Gambier depot, the employee will be considered to have resigned from the company. In such cases, the employee will not be entitled to any redundancy benefits or payments in lieu of notice.

PN27

I would have thought, and this is an important issue because it then leads into other issues of the benefits that are payable on redundancy and so on, I would have been happier, and maybe this is the company's intention, that if - instead of the term, "alternative position", it was, "suitable alternative position."

PN28

MS NOWACKI: I think the intention - - -

PN29

THE COMMISSIONER: I mean, what I'm trying to avoid is a situation where an employee at a certain level is told: yes, you can - we have got another job for you. It happens to be a part time job or a casual job where we may call you in or we may not call you in. You know, really it is the job you have when you are not having a job. Do you know what I mean? That is the sort of thing I'm trying to avoid.

PN30

MS NOWACKI: I will stand corrected by you if you want to correct me, but my understanding is that that clause is meant to be a comparable role.

PN31

THE COMMISSIONER: Yes.

PN32

MS NOWACKI: That clause was actually subject to quite a bit of discussion before the certified agreement went through, and it did limit the areas to which the job could be offered.

PN33

THE COMMISSIONER: Yes, as long as - I would have thought - and I don't think the agreement needs to be amended, but from my point of view, I would not be happy with it if the interpretation was simply any job, you know, any job at all, casual job, where you may or may not get called in or, I don't know, cleaning the toilets or whatever. Do you know what I mean, because I think if an employee did not want to take an alternative position like that, then it wouldn't be fair, in my view, to say to the employee: well, look, you are taken to have resigned then and you are not entitled to any redundancy benefits.

PN34

As long as it is a suitable alternative position, and that is the clear understanding of the parties, and if you are prepared to give an undertaking in regard to that - that it is, in effect, a suitable alternative position - if that is an undertaking, and I will note that for the record, that, I think, is then - I'm satisfied with the content of the agreement.

PN35

MS NOWACKI: Thank you.

PN36

THE COMMISSIONER: Now, how many employees are we dealing with here?

PN37

MS NOWACKI: 20.

PN38

THE COMMISSIONER: 20.

PN39

MS NOWACKI: 16 employees in Adelaide and 4 in Mount Gambier.

PN40

THE COMMISSIONER: 16 in Adelaide, 4 in Mount Gambier. Mr Smith, in regard - can I just ask? Since this is an agreement not involving the union at all - first of all, what was the vote? I don't need to know the exact number. Was it a unanimous vote or was it a majority vote or a narrow majority or - - -

PN41

MR SMITH: A high majority, a very high majority.

PN42

THE COMMISSIONER: A high majority?

PN43

MR SMITH: Yes.

PN44

THE COMMISSIONER: What were the main issues in the discussion with the employees?

PN45

MR SMITH: Going through the whole process or just - - -

PN46

THE COMMISSIONER: Yes, the main - was it wages or was it to conditions or was there some particular point?

PN47

MR SMITH: It was mainly clarifications of the initial offer. It is a very new process to us and we didn't understand a lot of the terms, and we had to go back to Matt and Simone on several occasions to just clarify things.

PN48

THE COMMISSIONER: This is your first agreement?

PN49

MR SMITH: Yes.

PN50

THE COMMISSIONER: Yes.

PN51

MR SMITH: To pick up the intent of what some of the phrases meant, that is what we were after.

PN52

THE COMMISSIONER: Yes, and how do you come to be representing the employees today?

PN53

MR SMITH: I was elected at one of the meetings.

PN54

THE COMMISSIONER: At one of the meetings?

PN55

MR SMITH: Mm.

PN56

THE COMMISSIONER: Was there a negotiating committee, was there or - - -

PN57

MS NOWACKI: No, we actually dealt with all of the employees as a group, and we just asked the group to choose someone who would like to sign the stat dec as confirmation, you know, that they accepted the terms of the agreement. It was a majority and Steve was elected.

PN58

THE COMMISSIONER: So the employees, Ms Nuroo, were addressed as a group? They weren't addressed individually or anything like that?

PN59

MS NUROO: No, just as a group, and if they had any individual concerns, they were spoken to by Matt - - -

PN60

THE COMMISSIONER: Yes.

PN61

MS NUROO: - - - but generally, all was agreed, united front.

PN62

THE COMMISSIONER: Yes, I understand. Is there anything else that anyone wants to raise? I note that clause 6.7 of the statutory declarations indicates that the agreement is to cease 36 months after the agreement was signed, which is - that expiry date will be 28 January, 2006. However, clause 5 of the agreement says it will be 36 months after certification which will, in effect, be certification as from today, 27 February. Which one is it? The agreement would have to override.

PN63

MS NUROO: I think that is the understanding of what - - -

PN64

THE COMMISSIONER: That it will be 3 years from today's date?

PN65

MS NUROO: Yes.

PN66

THE COMMISSIONER: Yes, which is, in effect - that is what clause 5.1 provides:

PN67

This agreement shall come into force from the first pay period immediately after the date it is certified by the Commission, and shall remain in force for a period of 3 years.

PN68

So it is 3 years from today's date.

PN69

MS NUROO: Yes, sorry, yes.

PN70

THE COMMISSIONER: That is fine, so the agreement is correct in that respect. Of course, whenever you wish to apply - we are quite happy for you to apply the agreement back to 28 January. There's no problem with that, but in terms of - the purpose of certification is that an agreement only becomes formally allied, if you like, and formally - - -

PN71

MS NUROO: Certified today.

PN72

THE COMMISSIONER: - - - certified from today, but whenever you apply it from is up to you, of course.

PN73

MS NUROO: That is fine.

PN74

MS NOWACKI: There's actually a provision in the agreement for back pay, dated back to some time in November, 21 November.

PN75

THE COMMISSIONER: Okay, so that is clear. All right. Well, I can say that for the record, the Commission has considered the application before it and the terms of the agreement that is subject to this application. I have examined the statutory declarations on file of Simone Erica Nuroo, Human Resources Adviser for the employer, and Steven Smith, fork-lift technician, employed by the company and elected by the relevant employees to act on their behalf. Those statutory declarations appear to be in order.

PN76

I have heard the parties today in relation to an application to have this agreement certified under Division 2 of Part VIB of the Act. I note, firstly, that the Vehicle Industry Repair Service and Retail Award (1983) is the relevant award for the purposes of the no disadvantage test, and the agreement has been tested against that award for the purposes of that no disadvantage test. The Commission is satisfied that that test has been satisfied. The agreement, I note, at clause 10, provides procedures for preventing and settling industrial disputes between the parties.

PN77

I'm also satisfied, having regard to the other statutory requirements for certification which I won't go into in detail at the moment, but having perused them, I am satisfied that all those other requirements for certification have been met. Accordingly, the Commission hereby certifies the Hyster South Certified Agreement 2003, to be operative from 27 February 2003 which will be the date of certification. It is to remain in force for a period of 3 years therefrom. The necessary documentation that confirms that certification will be out to the parties over the next few days from my office.

PN78

This being the first agreement of the parties, it only remains for me to congratulate the parties on their agreement. I also note for the record that letter of undertaking in regard to the wages clause and two other matters. That letter of undertaking, dated 29 January 2003, will be on the file and is to be read in conjunction with the agreement, as is also the clarification today about clause 13.3, and the Commission's insistence that the alternative employment referred to there be suitable alternative employment. If there's nothing further from the parties, I think that then disposes of the matter.

ADJOURNED INDEFINITELY [11.12am]