AG2004/1091, Transcript of Proceedings [2004] AIRCTrans 1514 (20 April 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1610
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/1091

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by ABB Australia Pty Limited and Another for
certification of the ABB Australia Pty Limited,
Power Industry, Substation Enterprise Bargaining
Agreement 2004-2005

ADELAIDE

2.15 PM, THURSDAY, 8 APRIL 2004

PN1

MR R. DONNELLY: I appear on behalf of the CEPU, Electrical Division.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Donnelly.

PN3

MR J. SMITH: I appear on behalf of ABB Australia Pty Limited.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Smith. Mr Donnelly and Mr Smith, I can advise you that I've read both the statutory declarations and the agreement in this matter. Are either of you able to tell me when the employees had or had reasonable access in writing to the agreement prior to voting on it?

PN5

MR SMITH: Yes. I can do that. On 22 March 2004, the agreement was approved by a valid majority of employees who were the subject of the agreement, in accordance with section 170LJ of the Act. The agreement complies with the various requirements in section 170LT.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes. All I really need at this stage, Mr Smith, is to know when the employees had or had reasonable access to the agreement in writing.

PN7

MR SMITH: In writing? It was 2 weeks prior to 22 March.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have a date for that?

PN9

MR SMITH: It would be 8 March.

PN10

THE SENIOR DEPUTY PRESIDENT: Just bear with me for one moment. Mr Smith or Mr Donnelly, the reason that I'm seeking clarification of that issue is that I can advise you that is the only question that I have about the extent to which the process dictated by the Act was followed.

PN11

MR SMITH: In fact, I've got a memo here, dated 4 March, when I sent it out.

PN12

THE SENIOR DEPUTY PRESIDENT: That would help me a lot more and help you a lot more than the 8th.

PN13

MR SMITH: Yes. It was 4 March. Sorry.

PN14

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. On that basis, I can advise both of you that I'm satisfied the agreement was reached through a process consistent with the Act. I have a few questions about the agreement itself. Should I address them to you, Mr Donnelly, or to you, Mr Smith?

PN15

MR DONNELLY: You can address them to myself if you like, sir.

PN16

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 3 of the agreement on page 2, and ask you to look at clause 3.5 - - -

PN17

MR DONNELLY: Yes, sir.

PN18

THE SENIOR DEPUTY PRESIDENT: - - - and to contrast that with clause 4? In particular, that first paragraph in clause 4. Now, the two paragraphs are inherently similar except that the paragraph in clause 4, which relates to the scope of the agreement, does not contain a reference to projects in substations and switch yards of any service voltage and distribution of transmission lines up to and including 66KV in South Australia. Now, to what extent am I to understand then that the agreement excludes work that might be undertaken in terms of minor construction projects in substations and switch yards of any voltage and on distribution and transmission lines up to and including 66KV?

PN19

MR DONNELLY: Because it is not mentioned in the scope, sir.

PN20

THE SENIOR DEPUTY PRESIDENT: It is not mentioned in the scope, but it is mentioned in terms of the definition of employee. So what I'm trying to do is to establish the intention of the parties. I'm not inviting the parties to re-write any of the provisions of the agreement but I am trying to establish the intention of the parties with respect to the scope of the agreement.

PN21

MR DONNELLY: The intention of the parties very, very clearly is that the scope of the agreement covers the workers of ABB who are doing maintenance or construction work on substations, switch yards, etcetera, plus those transmission lines as mentioned in clause 3.5, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. If I can then take you to that second paragraph in clause 4? Is it the intention of the parties to negotiate a certified agreement for projects with a total value in excess of $13.5 million?

PN23

MR DONNELLY: That would be the intention of the parties, sir, if that ever came to life.

PN24

THE SENIOR DEPUTY PRESIDENT: If I look at the third paragraph in clause 4, how should I understand the intention of the parties with respect to the words "recognised agreement"?

PN25

MR DONNELLY: We are talking about a certified agreement, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, but the actual words say, "where a certified agreement or recognised agreement"?

PN27

MR DONNELLY: Sorry.

PN28

THE SENIOR DEPUTY PRESIDENT: Should I understand that "recognised agreement" would only be a certified agreement?

PN29

MR DONNELLY: It may not be, sir. The recognised agreement may be an agreement with another organisation which pays a higher rate for a specific allowance, for example.

PN30

THE SENIOR DEPUTY PRESIDENT: How then should we describe a recognised agreement?

PN31

MR DONNELLY: A recognised agreement: my understanding would be that if there is a recognised agreement, possibly not a certified agreement, on a particular site which the employees were working under, these people on this would pick it up. The reality would be that most of them would be certified but I'm leaving it open that there may be some that aren't certified, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, you see, I don't want to dwell on this unnecessarily, but I do want to be assured that you good folks aren't going to be coming back here with an argument over whether or not this agreement is then effectively replaced by some other agreement applying to some other parties, that one of you says is a recognised agreement and one says isn't.

PN33

MR DONNELLY: I see what you are saying, sir. We haven't come across that - - -

PN34

THE SENIOR DEPUTY PRESIDENT: I enjoy your company but I don't want to see you other than for agreement certifications, Mr Donnelly.

PN35

MR DONNELLY: I understand what you are saying, sir. This is our third agreement and we haven't run across that issue at this point in time. Possibly the next EBA, we need to make that more defined.

PN36

THE SENIOR DEPUTY PRESIDENT: So would a recognised agreement be an agreement entered into by a company with whom ABB have a contractual relationship which agreement dictates conditions of employment applicable to employees of that other company?

PN37

MR DONNELLY: For that contract.

PN38

THE SENIOR DEPUTY PRESIDENT: For that company.

PN39

MR DONNELLY: I think that would be a fair enough comment, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: Clause 17, page 6, in particular the second paragraph that talks of the industry allowance only being applicable:

PN41

...to maintenance activities where it is currently being paid or recognised as a site condition by the client.

PN42

How should I understand that arrangement to apply?

PN43

MR DONNELLY: That is a very clear understanding, that one. If ABB employees were working on a site which was ETSA utility site they would pick up a specific disability allowance so they would pick up this industry allowance. If they were working at a substation at Westfield Marion owned by the Westfield Marion Group, there's no such applicable allowance so they do not pick up the allowance then.

PN44

THE SENIOR DEPUTY PRESIDENT: So are those allowances then only applicable to ETSA contracts or is it the case that they are only applicable where there is a documented contractual requirement?

PN45

MR DONNELLY: Where there's a requirement and where it is an agreed allowance is applicable and ones I can name are, for example, are ETSA Utilities and Electranet.

PN46

THE SENIOR DEPUTY PRESIDENT: I see. They are documented?

PN47

MR DONNELLY: Absolutely, sir, in a certified agreement.

PN48

THE SENIOR DEPUTY PRESIDENT: Clause 20 which is the dispute resolution procedure and in particular to subclause 20(f). This is a question that is probably directed more appropriately to Mr Smith. Mr Smith, in the event that the employee was not a member of this union or indeed possibly not even a member of any union, do employees have the capacity to be represented by a person or organisation of their choice?

PN49

MR SMITH: Yes, they do.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 23 relates to occupational health and safety. It refers in the first paragraph to stringent company standards of occupational health and safety. Are those standards documented? Are they readily available to employees and may they be changed during the life of the agreement?

PN51

MR SMITH: Which paragraph are you looking at, sorry?

PN52

THE SENIOR DEPUTY PRESIDENT: I'm talking about paragraph 23 and the reference in the first paragraph to stringent company standards of occupational health and safety and appropriate legislation. I'm simply seeking advice on whether or not those standards are documented, whether they are readily available to employees and whether they might be changed during the life of the agreement.

PN53

MR SMITH: Those standards are available to the employees in a safety management plan. They would have the ability to change throughout the agreement.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 24 and in particular the last paragraph in clause 24. Am I to understand then that the intention of the parties is that notwithstanding the agreement operates until 31 December 2005, from that date a 36-hour week will be applied?

PN55

MR DONNELLY: That is correct, sir.

PN56

THE SENIOR DEPUTY PRESIDENT: Now, clause 31 which relates to portable long service leave. Am I to understand from this clause that what ABB are doing is effectively to provide payments to the Construction Industry Long Service Leave Board in accordance with that Act for all employees who are accepted by that Board?

PN57

MR DONNELLY: That is correct, sir.

PN58

THE SENIOR DEPUTY PRESIDENT: If we look at clause 32 as it occurs on page 11, it is that first paragraph on page 11 that states that:

PN59

All prospective and current employees will be strongly encouraged to join and maintain financial membership of the appropriate union.

PN60

Mr Smith, does the company make employment decisions that are based on union membership? Is the company influenced in deciding whether to employ someone or to maintain their employment on the basis of whether or not that person is or is not a member of the union?

PN61

MR SMITH: No.

PN62

THE SENIOR DEPUTY PRESIDENT: In particular in that regard, are you able to give me an undertaking that prospective employees will be told that the issue of union membership is not a factor that will influence their employment?

PN63

MR SMITH: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 33 talks of the provision of income protection insurance through the Protect Income Protection Scheme policy on behalf of each CEPU employee. What happens if someone is not a member of the CEPU?

PN65

MR DONNELLY: If they are not a member of the CEPU, and I may say that is not the case at the present moment, but they still should be covered by income protection, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: I see. So that once again if I were to direct a specific request to Mr Smith. Mr Smith, are you able to give me an undertaking that that income protection insurance arrangement will be provided with respect to all employees irrespective of union membership?

PN67

MR SMITH: Yes.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN69

MR DONNELLY: Sir, if I may add that the next EBA will certainly leave CEPU out, that has obviously come from another agreement when I've been drafting up the agreement where you have got multiple unions and you have different income protection schemes, sir.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I can see where that sort of situation arises. There is another question relative to that clause and that goes to the extent to which I should understand that the intention of the parties then is that the insurance cover will be of a duration and nature which is fundamentally determined by Protect but restricted only by that $15.85 per week payment.

PN71

MR DONNELLY: That is the present payment to Protect, sir, and my understanding is that that won't increase during the life of this agreement. Sir, I may add on that also that ABB management has been advised that the CEPU Electrical Division may receive management fees from the insurer from time to time and that any management fees received will be used to benefit members in the industry, sir.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 34 relates to supplementary labour hire. Mr Donnelly, to what extent should I understand that this clause stipulates an intention in terms of consultation but certainly does not establish any obligations binding on a person or parties other than those who are parties to this agreement?

PN73

MR DONNELLY: That is correct, it is only parties to this agreement, sir.

PN74

THE SENIOR DEPUTY PRESIDENT: A final question relative to clause 36 relates to living away from home allowance. The clause refers to continuing existing arrangements. How should I understand those?

PN75

MR DONNELLY: Mr Smith may wish to highlight that, sir. I can if he wants me to.

PN76

MR SMITH: What I've done is I've sent a letter to all employees explaining what those conditions are.

PN77

THE SENIOR DEPUTY PRESIDENT: Approximately when was that letter sent, Mr Smith?

PN78

MR SMITH: 23 March, sir.

PN79

THE SENIOR DEPUTY PRESIDENT: I see, so that if I were to understand then that the continuing existing arrangements are those that are set out in that 23 March letter?

PN80

MR SMITH: Correct.

PN81

MR DONNELLY: Sir, if I may say, if the Commission wants a copy I can hand one up for your file.

PN82

THE SENIOR DEPUTY PRESIDENT: No, if the matter ever became a dispute I could only imagine both of you falling over yourselves to give me a copy to demonstrate whatever it is you were suggesting should apply.

PN83

MR DONNELLY: I'm sure that would happen.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Donnelly. Mr Smith, I'm working on the basis that wherever Mr Donnelly has given an answer you are in agreement with that answer?

PN85

MR SMITH: Correct.

PN86

THE SENIOR DEPUTY PRESIDENT: Very well. As I have indicated to the parties, I am satisfied the agreement was reached through a process consistent with that set out in the Act. I'm also satisfied the agreement meets the requirements for certification insofar as it is of a duration envisaged by the Act, contains the necessary dispute resolution provision and does not, on the basis of the undertakings given to me, contain provisions which are contrary to the Act. I will certify the agreement with effect from today.

PN87

The certificate will be forwarded out to the parties in the near future. It might not be received until later next week. That certificate will identify the undertakings that I have been given. It will also identify the clauses about which I have sought clarification but it won't detail the answers that I've been given because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [2.35pm]