AG2003/9338, Transcript of Proceedings [2004] AIRCTrans 163 (8 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N 1253
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9338

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Ahrens Construction Pty Limited and
Another for certification of the Ahrens
Engineering Pty Ltd (Construction)
Certified Agreement 2003

ADELAIDE

9.45 AM, THURSDAY, 18 DECEMBER 2003

PN1

MR L. FOREMAN: I appear on behalf of Ahrens Engineering. I am the Human Resources Manager.

PN2

THE SENIOR DEPUTY PRESIDENT: And I have an employee representative?

PN3

MR ELSDON: Yes.

PN4

THE SENIOR DEPUTY PRESIDENT: Your name is?

PN5

MR W. ELSDON: W. ELSDON.

PN6

THE SENIOR DEPUTY PRESIDENT: Now, Mr Foreman, can I take it that you rely upon the employer's statutory declaration in support of this application.

PN7

MR FOREMAN: Yes, I do.

PN8

THE SENIOR DEPUTY PRESIDENT: Can I refer you or commence the proceedings by referring you to that statutory declaration and asking you a few questions about it? Can you go first of all to part 5.2. On what date was the written agreement made with the valid majority of employees.

PN9

MR FOREMAN: Yes, on Wednesday 26 November I was informed by the employees representative that a vote had been taken and that agreement had been unanimously accepted by the site employees.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, if we go to 5.4. Upon what date was the written notice provided by the employer to the employees advising of the intention to make the agreement in accordance with section 170LK(2)?

PN11

MR FOREMAN: On 9 May 2003 the company wrote to all Ahrens Construction employees to inform them that the previous enterprise bargaining agreement had expired and indicated we would like to negotiate a new agreement.

PN12

THE SENIOR DEPUTY PRESIDENT: That was 9 May 2003?

PN13

MR FOREMAN: 2003. Do you have a copy?

PN14

THE SENIOR DEPUTY PRESIDENT: Yes I do.

PN15

MR FOREMAN: Wayne's got a copy too. If it please the Deputy President, I have actually done a written statement on the process. I don't know if you are interested in that at all?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, I will take whatever it is you give me at this stage.

PN17

MR FOREMAN: I have put the whole thing together.

PN18

THE SENIOR DEPUTY PRESIDENT: It is probably best that I mark the letter to employees of 9 May 2003 as A1.

EXHIBIT #A1 LETTER FROM AHRENS ENGINEERING PTY LIMITED TO EMPLOYEES DATED 09/05/2003

PN19

THE SENIOR DEPUTY PRESIDENT: I am quite happy to receive a bundle of documents from you if that is more convenient.

PN20

MR FOREMAN: Wayne's got a copy and I have. There is plenty. I have run off extra copies.

PN21

THE SENIOR DEPUTY PRESIDENT: You might give me a moment to just browse through that material. I will mark this bundle of material as A2 noting that it is a package of information that goes to the negotiations directed at achieving this agreement.

EXHIBIT #A2 PACKAGE OF INFORMATION CONTAINING DETAILS OF NEGOTIATIONS

PN22

THE SENIOR DEPUTY PRESIDENT: Mr Foreman, was there any other documentation provided to employees apart - advising of the intention to make the agreement?

PN23

MR FOREMAN: Yes there was.

PN24

THE SENIOR DEPUTY PRESIDENT: Apart from the one that I have called A1?

PN25

MR FOREMAN: Yes there was in that package. There was a further letter.

PN26

THE SENIOR DEPUTY PRESIDENT: That was the 18 June letter?

PN27

MR FOREMAN: Yes, 18 June we wrote to all the site guys.

PN28

THE SENIOR DEPUTY PRESIDENT: And is that the letter that commences with the words:

PN29

We propose the following be incorporated in the EBA and request your comments and feedback?

PN30

MR FOREMAN: Well, the one I have got in front of me is the one - that is on the second page, yes. There is a front page to that as well.

PN31

THE SENIOR DEPUTY PRESIDENT: In any of the correspondence provided to the employees by the employer, was there a reference made to the capacity for the employees to be represented by a union if they chose to do so?

PN32

MR FOREMAN: In the documentation?

PN33

THE SENIOR DEPUTY PRESIDENT: Yes.

PN34

MR FOREMAN: I don't think documented. We verbally, at the start, made them aware that they could make, you know, get that representation if they wished but I don't think I did document it.

PN35

THE SENIOR DEPUTY PRESIDENT: The difficulty I am having in this regard, Mr Foreman, is that for your benefit but probably more for Mr Elsdon's benefit, the Act provides for a number of different types of agreements. It provides for agreements that cover new businesses, it provides for agreements that are negotiated with a union and then endorsed at a later time by a valid majority of employees and then it provides for agreements to be negotiated directly between employers and their employees. Now this is one of those agreements.

PN36

Now, the Act sets out some very clear provisions that must be complied with before I can approve any such agreement and it might be best if I go through them very briefly. The first is that:

PN37

At least 14 days prior to the agreement being made the employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement, has at least 14 days notice in writing of the intention to make the agreement.

PN38

And it appears to me on the face of it that if the letter that I have marked as A1 was in fact sent out to all employees, that requirement has been met. I take it, Mr Foreman you are confirming to me that that letter was sent to all employees?

PN39

MR FOREMAN: Yes it was, Commissioner. In actual fact it is documented further on the actual 14-day notice.

PN40

THE SENIOR DEPUTY PRESIDENT: Now the second obligation which is set out in section 170LK(3) says that:

PN41

At or before the time the notice given the employer must take reasonable steps to assure that every such person either has or has ready access to the proposed agreement in writing.

PN42

And if I read through the summary of the sequence of events which is the first of the documents in the bundle that I have marked A2, it appears to me that all employees were both involved in the process and appear to have had ready access to the document.

PN43

MR FOREMAN: Well I believe that.

PN44

THE SENIOR DEPUTY PRESIDENT: The third requirement is the one that is causing me some degree of difficulty. That says that the notice, which is the notice to be provided to employees at least 2 weeks before the agreement is to be made, must also state that:

PN45

If any person whose employment will be subject to the agreement is a member of an organisation of employees -

PN46

that means the union -

PN47

and that organisation is entitled to represent those employees in relation to worth or with the subject of the agreement, the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.

PN48

It is that issue that I am seeking advice on because the Act doesn't provide an opportunity for simply the employer to tell the employee that, it requires that that advice be provided in writing as part of the notice advising of the intention to make the agreement. Now, can you help me with that, Mr Foreman?

PN49

MR FOREMAN: Well all I can say - beg your pardon Senior Deputy President.

PN50

THE SENIOR DEPUTY PRESIDENT: That is all right. I am not offended.

PN51

MR FOREMAN: I was calling you Commissioner. I apologise.

PN52

THE SENIOR DEPUTY PRESIDENT: I can assure I have been called worse.

PN53

MR FOREMAN: Right. Just to say that the - there is no-one members of the union. They were made aware that they could go and seek, you know, advice or information but that they - - -

PN54

MR ELSDON: They chose not to.

PN55

MR FOREMAN: Yes. No-one - - -

PN56

THE SENIOR DEPUTY PRESIDENT: Look, I understand that and don't take my question the wrong way. I am not suggesting there was any untoward intent in this regard, I am simply pointing out that the Act sets out some mandatory factors that I must take into account. It doesn't say that the Commission can choose to override that provision if it wishes to do so.

PN57

MR FOREMAN: No.

PN58

THE SENIOR DEPUTY PRESIDENT: It sets out a mandatory obligation and if I am understanding you correctly, you are agreeing that the employees haven't been told of that?

PN59

MR FOREMAN: They have been told verbally but not in writing.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes.

PN61

MR FOREMAN: That is what Wayne has just confirmed. They were aware they had that opportunity but it wasn't - I hadn't put it in the documentation. It was only verbally at the start they were made aware of that. If they wished they could go and seek other counsel, whether it be the union or whoever. It didn't necessarily have to be the union in my understanding. They could other seek other advice from wherever.

PN62

THE SENIOR DEPUTY PRESIDENT: Mr Foreman, what I am going to suggest to you now is that whilst I have yet to hear Mr Elsdon in this matter, on the basis of what I have been told, I am not going to be able to certify the agreement today. I am going to ask my associate to ensure that you are provided with a copy of that section 170LK at the conclusion of these proceedings.

PN63

I am going to suggest that I will leave the file open in this matter and that I will go through and raise with both the parties a number of questions that I have about the agreement but if I am given, at some stage early next year, a new set of statutory declarations which may be accompanied by a new agreement - we will get to that in a moment - it need not necessarily be accompanied by a new agreement but those statutory declarations confirm that advice was given to employees in a written form in accordance with the Act so that the employees once again have a formal opportunity to have 14 days notice of the intention to make the agreement and that they have, within that time, the capacity to review the extent to which they want to have a union involved.

PN64

Then subject to the questions that I have about the agreement, the parties would not need to come back into the Commission. I would then certify the agreement from the date upon which I received that information and that is presuming that I am satisfied that information containing the statutory declarations or the new statutory declarations meets all of the requirements set out in section 170LK. Now the opportunity then exists for the parties to either rely on the existing agreement as it is, in which case I will take any answers that you might choose to give me about a couple of questions relevant to the agreement as applying to the new version or they may choose to update the agreement with respect to the specific issues that I raise.

PN65

If there are other changes made to the agreement then I can foreshadow that you will need to come back into the Commission and if I am not satisfied that the statutory declarations deal with all of the pre-requisites set out in section 170LK which, unlike some other sections of the Act is actually set out fairly clearly, then the parties will need to come back. I tabling that proposal for you to comment on, on the basis that it appears to me that the intention of the Act has been met but the technical and quite specific requirement has not been and hence I am endeavouring to minimise the extent of the disruption and the convenience associated with the matter. Now do you want to have a chance to talk with Mr Elsdon in that regard? I am conscious that I will get to address any questions to you.

PN66

MR FOREMAN: Just on that as well, Senior Deputy President, we were planning to start the agreement from the first pay period in July.

PN67

THE SENIOR DEPUTY PRESIDENT: In July 2003? There is no impediment to you doing that. A great many organisations do that and I suggest that depending on the answers that you give to the various question I have about the agreement, if you then follow the process which is set out in section 170LK and demonstrate that in terms of the information that is to be provided to me in the new statutory declarations, you can be reasonably confident that your agreement will be certified.

PN68

MR FOREMAN: Right.

PN69

THE SENIOR DEPUTY PRESIDENT: Now, Mr Elsdon, you are here as an employee representative. Can you tell me how it was you came to be an employee representative?

PN70

MR ELSDON: Just a vote between us. I just, yes, represent - - -

PN71

THE SENIOR DEPUTY PRESIDENT: And the other employees voted that you would be regarded as such?

PN72

MR ELSDON: Yes.

PN73

THE SENIOR DEPUTY PRESIDENT: Very well. Now, the process that I am asking the employer and the employees to repeat will give the employees the opportunity to consider the agreement once again such that they have at least 14 days notice of the intention to make the agreement. It will give the employees written advice to the effect that if they want to be represented by a union they can be represented, that union then has the right to be involved in discussions with the employer and what I am saying to both you and Mr Foreman is that the statutory declarations that I will need to be provided with will need to ensure that the questions are answered so that I can be assured that the process set out in that section 170LK has been followed. Do you have any questions about that?

PN74

MR ELSDON: No.

PN75

THE SENIOR DEPUTY PRESIDENT: All right. What I am going to do is ask Mr Foreman a few questions about the agreement. In the event that you, Mr Elsdon, disagree with any of his responses, please feel free to jump up and tell me that or indeed if you want to add any more to them.

PN76

MR ELSDON: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: Normally I would say to the parties that the questions that I ask do not allow the parties to change the agreement in any way. They simply invite the parties to tell me of their intention so that I can take your answers into account. Do you have any questions about that?

PN78

MR ELSDON: No.

PN79

THE SENIOR DEPUTY PRESIDENT: What I'm going to do is ask Mr Foreman a few questions about the agreement. In the event that you, Mr Elsdon, disagreed with any of his responses, please feel free to jump up and tell me that.

PN80

MR ELSDON: Yes.

PN81

THE SENIOR DEPUTY PRESIDENT: Or if you want to add anything more to them. Normally, I would say to the parties that the questions that I ask do not allow the parties to change the agreement in any way. They simply invite the parties to tell me of their intention so that I can take your answers into account. In this situation we have a minor difference in that the opportunity does exist to change the agreement but it is by no means an obligation. Can I take you first of all to clause 6 of the agreement? Mr Elsdon, do you have a copy of the final form of the agreement?

PN82

MR ELSDON: Yes, I do.

PN83

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, two questions here. First of all, reference is made to the National Metal Engineering On-site Construction Industry Award of 1989. That award has now been the subject of an award simplification process and is now known as the National Metal Engineering on-site Construction Industry Award of 2002. Do the parties intend to have regard to the 2002 or the pre-simplified 1989 version?

PN84

MR FOREMAN: In my view the, current one, Senior Deputy President.

PN85

THE SENIOR DEPUTY PRESIDENT: I see. Yes, all right.

PN86

MR FOREMAN: That is an error on my part.

PN87

THE SENIOR DEPUTY PRESIDENT: Now, clause 7 says that all of the previous EBA agreement clauses will flow into this agreement. Can I take it that the intention is that where this agreement is inconsistent with any of those earlier agreement provisions the new agreement will apply?

PN88

MR FOREMAN: Well, my intention in writing that, Senior Deputy President, was that the strength of the previous agreements held out. So if there was something better in the previous agreement or that didn't cover in this agreement that would cover.

PN89

THE SENIOR DEPUTY PRESIDENT: But if there was something references in one of the previous agreements and this agreement - - -

PN90

MR FOREMAN: This agreement.

PN91

THE SENIOR DEPUTY PRESIDENT: This agreement would override the previous agreement.

PN92

MR FOREMAN: Yes, it would, that is correct.

PN93

THE SENIOR DEPUTY PRESIDENT: If there was some difference between a previous agreement provision and an award provision, then what arrangement would apply then?

PN94

MR FOREMAN: Whatever was the - - -

PN95

THE SENIOR DEPUTY PRESIDENT: You will need to forgive my question, but you see it is an unfortunate reality that it is very frequently that I have parties before me that are having arguments over those issues.

PN96

MR FOREMAN: Yes, sir.

PN97

THE SENIOR DEPUTY PRESIDENT: I would rather have an answer now than regret that I didn't - - -

PN98

MR FOREMAN: I've been here before myself. I can relate to that quite well.

PN99

THE SENIOR DEPUTY PRESIDENT: - - - in the future.

PN100

MR FOREMAN: Well, the better arrangement, that would be our position. The better arrangement.

PN101

THE SENIOR DEPUTY PRESIDENT: I see. Thank you.

PN102

MR FOREMAN: So yes, in this agreement here.

PN103

THE SENIOR DEPUTY PRESIDENT: So whichever provision provided for the best benefit to an employee?

PN104

MR FOREMAN: Yes, yes.

PN105

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 8.2. Okay. Gives rise to a question that I understand from that that if the award is varied by way of a percentage increase arising from a safety net adjustment then that percentage increase would be applied from the same time as the award variation occurs to each of those rates. But if the award is varied by a flat amount then that flat amount will also be applied.

PN106

MR FOREMAN: Yes, yes, Senior Deputy President.

PN107

THE SENIOR DEPUTY PRESIDENT: Clause 10 refers in its preamble to other workplace requirements and Occupation of Health and Safety requirements. Are those requirements documents?

PN108

MR FOREMAN: Yes, they are. We have a complete policy procedure for our construction sites.

PN109

THE SENIOR DEPUTY PRESIDENT: And that procedure is readily available for all employees?

PN110

MR FOREMAN: Yes, it is.

PN111

THE SENIOR DEPUTY PRESIDENT: It may be changed during the life of the agreement?

PN112

MR FOREMAN: Yes, it could be because we review our policy and procedure normally on and about every 2 years so that is just mainly for continuous improvement purposes.

PN113

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 13 refers to a training program to be developed by the company. Am I to understand that that will be developed over the life of this agreement or is there another time frame in mind?

PN114

MR FOREMAN: Our view was that there are a number of skills that the site guys are requesting and we want to put a plan of that over the next - well every year to try and compensate for those skills that are needed on the job. So the idea was to put a plan together for the life of the agreement and further.

PN115

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 18 is the dispute settlement procedure. Step 5 of that clause proposes that an unresolved dispute would be referred to the Australian Industrial Relations Commission for conciliation. I'm simply seeking clarification there that the parties intend the Commission's role to begin and end at the conciliation phase.

PN116

MR FOREMAN: That is the way I would certainly want to be operating.

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Foreman. Now, Mr Elsdon, can I take it that you are in agreement with all of Mr Foreman's responses?

PN118

MR ELSDON: Yes, on behalf of Ahrens Engineering.

PN119

THE SENIOR DEPUTY PRESIDENT: Very well. Just to reconfirm. There is absolutely no obligation on the parties to change the document in any way. If the document is represented together with the supporting information, then I propose to have regard to the answers that I've been given as if they applied to the new agreement.

PN120

MR ELSDON: Thank you.

PN121

THE SENIOR DEPUTY PRESIDENT: If the agreement is changed other than to address any of the questions that I've raised, then the parties should be on notice that they will need to come back to the Commission, but that may be a matter that they choose to do in any event. Please don't give me a new set of statutory declarations within the next 14 days because then we will know that you are in difficulty in terms of section 170LK, but if I do receive the documentation such that I can certify the agreement from the date upon which I receive that documentation, the certificate will be sent out to the parties shortly thereafter.

PN122

That certificate will identify the various clauses about which I've sought clarification. It would not detail the answers that I've been given because those are recorded on the transcript. Mr Foreman, do you have any questions about that process? I appreciate that it may occasion some difficulty given the time of the year, but as I've indicated to you, I see little option. I can advise you that I'm satisfied that the agreement meets the requirements of the no disadvantage test.

PN123

I can advise you that I'm satisfied the agreement contains the necessary dispute settlement procedure and is of a duration envisaged by the Act, and I can advise you that the agreement does not contain provisions which are contrary to the Act. So that the only outstanding issue remind to be one of demonstrating that the requirements of section 170LK have been met. If that requirement is demonstrated to me, then I would propose to certify the agreement and you could act with some degree of confidence.

PN124

MR FOREMAN: Yes, thank you, Senior Deputy President. Just one query on that. The statutory dec, can that have three persons signing that or should that be three separate statutory declarations?

PN125

THE SENIOR DEPUTY PRESIDENT: There should be at least two statutory declarations. One should come from an employee - - -

PN126

MR FOREMAN: Right. So they should be separate.

PN127

THE SENIOR DEPUTY PRESIDENT: And one should come from an employer.

PN128

MR FOREMAN: So it is the representative could be Wayne?

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, indeed.

PN130

MR FOREMAN: Right. Okay.

PN131

THE SENIOR DEPUTY PRESIDENT: I would urge both parties to read that section 170LK carefully. The invitation to an employee to have the union involved is not simply a pyrrhic invitation, the invitation may in fact be taken up, in which case there is an obligation on the employer to negotiate with the union. All right?

PN132

MR FOREMAN: No problems.

PN133

THE SENIOR DEPUTY PRESIDENT: Mr Elsdon, do you have any questions about the repetition of the process?

PN134

MR ELSDON: No, I don't. No, no questions.

PN135

THE SENIOR DEPUTY PRESIDENT: It is a pity that I can't certify your agreement through Christmas, but I would hope to be able to do so in January. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.15am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER FROM AHRENS ENGINEERING PTY LIMITED TO EMPLOYEES DATED 09/05/2003 PN19
EXHIBIT #A2 PACKAGE OF INFORMATION CONTAINING DETAILS OF NEGOTIATIONS PN22