AG2004/1892, Transcript of Proceedings [2004] AIRCTrans 1042 (24 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6326

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2004/1892

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by Elgas Limited for certification of the
Elgas Limited, Technical Division, Workplace
Agreement 2004

MELBOURNE

10.36 AM, FRIDAY, 5 MARCH 2004

PN1

MR G. LEECH: I appear for Elgas Limited, and with me is the employee representative who negotiated the agreement, MR G. MUCKLESTON.

PN2

THE COMMISSIONER: Very well. Thank you, Mr Leech and Mr Muckleston. I had an opportunity to read the agreement, Mr Leech, and the supporting material and I think I am satisfied that the agreement is fit for certification. I just want to clarify one thing. On my reading of the award overtime doesn't apply if the salary greater than a certain amount - - -

PN3

MR LEECH: That is correct.

PN4

THE COMMISSIONER: - - - is paid, and that amount is the level 6 or grade 6 of the B classification.

PN5

MR LEECH: That is correct.

PN6

THE COMMISSIONER: All right. That takes care of the question of clause 8.

PN7

MR LEECH: Yes. Sorry, yes.

PN8

THE COMMISSIONER: And there is an all which has been averaged and is included in the base rates and I just wanted to know what that amount of allowance was. Do you know? In clause 9? But it seems to me that the salaries are such that they would still be greater than the award, even if you deducted the allowance.

PN9

MR LEECH: That is correct, Commissioner.

PN10

THE COMMISSIONER: In all cases. Yes, that is right.

PN11

MR LEECH: The meal allowance has always been included in the salaries of these people.

PN12

THE COMMISSIONER: Yes. But the point that I am making is for the no disadvantage test - - -

PN13

MR LEECH: Yes.

PN14

THE COMMISSIONER: - - - even if you deducted the allowance the salaries would still be significantly in excess of the award. Am I right?

PN15

MR LEECH: Yes.

PN16

THE COMMISSIONER: That is right.

PN17

MR LEECH: Yes.

PN18

THE COMMISSIONER: What about clause 13 training? I mean, how much would these courses cost? Have the employees got to reimburse Elgas if they resign?

PN19

MR LEECH: Well, those courses can cost, Commissioner, as I understand, and Mr Muckleston might be able to help me, up to $2000, and the reason for that provision, which has been agreed to by the employees of course, is that I think recently someone went on a course and about two weeks later decided to resign.

PN20

THE COMMISSIONER: Right.

PN21

MR LEECH: So all the skills that were - - -

PN22

THE COMMISSIONER: Would you be prepared to give an undertaking that under no circumstances will that lead to an employee being paid for the period of employment any less than they would have earned under the award?

PN23

MR LEECH: Yes, I would, Commissioner, on the record.

PN24

THE COMMISSIONER: Very well. I will treat that undertaking as provided for by the Act.

PN25

MR LEECH: Yes.

PN26

THE COMMISSIONER: Now, I take it that the classifications in the agreement align with the classifications in the award.

PN27

MR LEECH: Well, these classifications are higher, Commissioner, and accordingly outside the award.

PN28

THE COMMISSIONER: Right.

PN29

MR LEECH: They are technical positions - - -

PN30

THE COMMISSIONER: I appreciate that.

PN31

MR LEECH: - - - and there is no other technical positions detailed in the award itself. There is classifications A and B, which covers some junior technical positions but not the level of these people.

PN32

THE COMMISSIONER: All right. So there is no other award that covers - - -

PN33

MR LEECH: No, there is not.

PN34

THE COMMISSIONER: - - - this level of work.

PN35

MR LEECH: It is an Elgas award.

PN36

THE COMMISSIONER: All right. Well, I will proceed on that assumption for the purposes of the application. Good, thank you. Mr Muckleston, I just wanted to ask you a couple of very simple questions.

PN37

MR LEECH: Commissioner - - -

PN38

THE COMMISSIONER: I beg your pardon?

PN39

MR LEECH: - - - just before you go on, could I just hand up two documents for the record?

PN40

THE COMMISSIONER: Yes. Thank you.

PN41

MR LEECH: I just want to place - - -

PN42

THE COMMISSIONER: Is this the 170LK(4) notice, is it?

PN43

MR LEECH: Sorry?

PN44

THE COMMISSIONER: This is the 170LK(4) notice?

PN45

MR LEECH: Yes, that is right. I just wanted to - - -

PN46

THE COMMISSIONER: Yes.

EXHIBIT #A1 170LK(4) NOTICE

PN47

THE COMMISSIONER: I was going to ask you about this in due course.

PN48

MR LEECH: Yes. Okay. I am sorry.

PN49

THE COMMISSIONER: And in particular I was going to ask Mr Muckleston whether or not all the employees received this notice.

PN50

MR LEECH: Commissioner, this notice was sent out to all the employees individually prior to the negotiations commencing and to indicate to them of their rights under the Act.

PN51

THE COMMISSIONER: Yes. So this is a copy of a letter which you say was sent to all employees.

PN52

MR LEECH: Yes, Commissioner.

PN53

THE COMMISSIONER: All right. Good, thank you. Mr Muckleston, can you confirm that this letter was received by the employees?

PN54

MR MUCKLESTON: Yes, it was sent to all employees.

PN55

THE COMMISSIONER: Very well.

PN56

MR MUCKLESTON: And discussed.

PN57

THE COMMISSIONER: And was it sent around 25 November?

PN58

MR MUCKLESTON: Yes, it was. Yes.

PN59

THE COMMISSIONER: Good, thank you. Now, in the statutory declaration that you filed you said you were nominated by the employees today. How did that happen?

PN60

MR MUCKLESTON: It was because were are so remote, there is Queensland, New South Wales, South Australia.

PN61

THE COMMISSIONER: Yes.

PN62

MR MUCKLESTON: It was done by a phone link-up.

PN63

THE COMMISSIONER: You had a telephone hook-up?

PN64

MR MUCKLESTON: Yes.

PN65

THE COMMISSIONER: All right, and there was a valid majority of employees approved the agreement according to the statutory declarations. Are you able to tell me how that was arrived at?

PN66

MR MUCKLESTON: It was a postal ballot.

PN67

THE COMMISSIONER: Right.

PN68

MR MUCKLESTON: And we opened the letters in front of witnesses.

PN69

THE COMMISSIONER: Right.

PN70

MR MUCKLESTON: Yes.

PN71

THE COMMISSIONER: And so you were there?

PN72

MR MUCKLESTON: I was there for the count, yes.

PN73

THE COMMISSIONER: All right. So you saw the ballot papers?

PN74

MR MUCKLESTON: Yes.

PN75

THE COMMISSIONER: Right, and did all of the employees vote?

PN76

MR MUCKLESTON: All but one.

PN77

THE COMMISSIONER: All right, and are you able to tell me what the outcome of the ballot was?

PN78

MR MUCKLESTON: Of the - well, there was the 11 tabled.

PN79

THE COMMISSIONER: Yes. But 10 voted.

PN80

MR MUCKLESTON: 10 voted, and one went against.

PN81

THE COMMISSIONER: All right.

PN82

MR MUCKLESTON: So it was a majority of nine.

PN83

THE COMMISSIONER: So it was 9 to 1 in favour of the agreement.

PN84

MR MUCKLESTON: Yes.

PN85

THE COMMISSIONER: Good. Thank you very much, Mr Muckleston. Did you want to tender something else?

PN86

MR LEECH: Commissioner, yes. Just to confirm what has just been said, Commissioner, I would like to tend another document.

PN87

THE COMMISSIONER: All right.

PN88

MR LEECH: This letter went to all employees, once again, and indicated the process for the voting, which you have just asked Mr Muckleston about.

EXHIBIT #A2 LETTER SENT TO EMPLOYEES RE VOTING PROCESS

PN89

THE COMMISSIONER: Yes. Well, I thought it was more appropriate that I ask those questions of the employee representative, Mr Leech.

PN90

MR LEECH: Yes. So that is for record purposes, Commissioner.

PN91

THE COMMISSIONER: Yes. Good, thank you. Very well. I have had an opportunity to read this agreement and consider it against the relevant award, and I have read the statutory declarations and considered the Exhibits A1 and A2. I am satisfied that the agreement has been made in accordance with the requirements of the Workplace Relations Act 1996. I am satisfied that the agreement does not disadvantage employees covered by its terms. On my observation the agreement would confer additional and more beneficial terms and conditions of employment upon the employees.

PN92

The agreement expresses its commencement date be the date of certification, and to remain in force until 28 February 2007. The agreement also contains a dispute settlement procedure and has been approved by a valid majority of employees. Under all these circumstances the Commission will order that the agreement be certified. The order will come into force from today's date and remain in force for the life of the agreement. Thank you very much.

ADJOURNED INDEFINITELY [10.43am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 170LK(4) NOTICE PN47
EXHIBIT #A2 LETTER SENT TO EMPLOYEES RE VOTING PROCESS PN89