AG2004/2888, Transcript of Proceedings [2004] AIRCTrans 1757 (10 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 1659
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/2888

APPLICATION FOR CERTIFICATION
OF GREENFIELDS AGREEMENT

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

ADELAIDE

1.35 PM, THURSDAY, 29 APRIL 2004

PN1

MR R. DONNELLY: I appear on behalf of the Communications, Electrical and Plumbing Union, the Electrical Division.

PN2

MS F. HARBISON: I appear for Tenix Alliance Proprietary Limited. Appearing with me is MS L. TERESINSKI.

PN3

THE SENIOR DEPUTY PRESIDENT: Now, I can advise the parties that I have looked at both the statutory declarations and the agreement itself. It might be best if I direct a question to you, Ms Harbison, such that in considering the statutory declaration I note the tense of various of the responses given to the statutory declaration questions is a current tense and as such there is a question in my mind as to the current employment status of Tenix. Are Tenix currently employing people engaged in maintenance and/or construction projects carried out in the power industry in South Australia?

PN4

MS HARBISON: No current employees of Tenix in South Australia in this business.

PN5

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I think the video equipment cut out the first critical aspect of your response there.

PN6

MS HARBISON: It was there aren't any current employees in this business in Tenix Alliance in South Australia.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. Do Tenix propose to employ people in the immediate future?

PN8

MS HARBISON: Yes, it is Tenix's intention to look into this business and in fact Tenix has in mind a contract in this business.

PN9

THE SENIOR DEPUTY PRESIDENT: I see. Would Tenix be engaging an entirely new workforce to work in this area or would personnel be transferred from other areas of the Tenix operation?

PN10

MS HARBISON: No, it will be an entirely new workforce for Tenix Alliance.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis, Ms Harbison, is there anything else you want to say to me about the status of the agreement pursuant to section 170LL?

PN12

MS HARBISON: As I understand it, the agreement satisfies all promises. Certainly as far as we are concerned we are very eager to get this agreement certified.

PN13

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Donnelly, is there anything you want to say to me about the status of this agreement in terms of section 170LL?

PN14

MR DONNELLY: No, sir, it certainly abides by all the conditions of the Act, sir, and we seek for you to certify it.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Ms Harbison, I'm going to ask some questions now about the agreement itself. For ease of operation I will address my questions to Mr Donnelly because he is more practised at answering a number of them, but please feel free to tell me if you disagree with any of his responses or indeed want to add anything to them.

PN16

MS HARBISON: Thank you, Deputy President.

PN17

THE SENIOR DEPUTY PRESIDENT: My questions do not invite the parties to re-write the document that has been agreed upon, they simply go to clarifying a number of issues of intention associated with the document. Mr Donnelly, can I take you to clause 4 and in particular to that second paragraph. Is it the intention of the parties that a specific or project specific agreement negotiated on that basis would then be a certified agreement?

PN18

MR DONNELLY: That is correct, sir.

PN19

THE SENIOR DEPUTY PRESIDENT: If I can then take you to the next paragraph which is the third paragraph in clause 4. Who determines which of those two arrangements would apply?

PN20

MR DONNELLY: Who determines would be the parties who would determine that, sir. It would be a certified agreement which is applicable to that site. Sir, I recognise agreement which are recognised by the contractor or the company which is involved in that site prior to the invitation of work by Tenix in this case, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: So it is conceivable that the parties would agree to recognise a non-certified agreement and pay rates in accordance with that agreement where those rates exceeded those set out in this agreement?

PN22

MR DONNELLY: That is correct, sir, if that was recognised by the company who was in charge of that operation on that site, sir.

PN23

THE SENIOR DEPUTY PRESIDENT: Perhaps I need to clarify that a step further. Would the decision to pay those higher rates based on either another certified agreement or a recognised agreement, be made by the employer being Tenix or would they be made by Tenix in concert with the union or would they be made by Tenix, the union and the client?

PN24

MR DONNELLY: I would suggest, sir, it would be Tenix and the union, sir.

PN25

THE SENIOR DEPUTY PRESIDENT: I see. So that if there was disagreement on that question then how would that be determined?

PN26

MR DONNELLY: We would go to dispute procedures, sir, which is in the enterprise bargaining agreement.

PN27

THE SENIOR DEPUTY PRESIDENT: And what sort of criteria would be used to determine that particular issue?

PN28

MR DONNELLY: Well, very clearly, sir, if it is a certified agreement on that site, that stands alone and if it is a agreement which is not certified which is enforced by other people on that site, sir, we would say very clearly that that is the recognised agreement, sir. I think it would be pretty clear cut.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 5 then draws to a question such that am I to understand that whilst the agreement is binding on the person set out in 5.1 and 5.2, those persons would need to be covered by the scope clause of the agreement.

PN30

MR DONNELLY: That is correct, sir.

PN31

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 20 which is the dispute resolution procedure and just clarify that pursuant to clause 20(d) the role of the Commission would stop at the conciliation process.

PN32

MR DONNELLY: That is correct, sir.

PN33

THE SENIOR DEPUTY PRESIDENT: And clause 24 on page 8, am I to understand the last paragraph in that clause to mean that the parties intend that the potential for shorter hours of work would be a matter covered in the next agreement.

PN34

MR DONNELLY: That is correct, sir. We negotiate the next agreement.

PN35

THE SENIOR DEPUTY PRESIDENT: And the same question applies to clause 26 on the top of page 9. The reference to electrical apprentices is something that is going to be addressed in the next agreement.

PN36

MR DONNELLY: That is correct, sir.

PN37

THE SENIOR DEPUTY PRESIDENT: Mr Donnelly, clause 30 on page 10 - perhaps I will stop the question for a minute. Ms Harbison, on the table in front of you should be a triangular microphone. Can you see that there?

PN38

MS HARBISON: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: I am just wondering whether I might get you to move that away from your papers a short distance because as it currently stands whenever you turn a page we get a clap of thunder.

PN40

MS HARBISON: My apologies, is that better?

PN41

THE SENIOR DEPUTY PRESIDENT: That is much better thank you. I was just worried that the thunder might interrupt our electricity supply. The provisions of this clause lead me to ask you, Mr Donnelly, whether or not you can give me an undertaking that the issue of employment policy is such that the union would act at all times in a fashion with the freedom of association provisions so as to ensure that there was no capacity for a breach of those freedom of association provisions.

PN42

MR DONNELLY: We certainly would act along those guidelines very clearly, sir.

PN43

THE SENIOR DEPUTY PRESIDENT: Clause 32 requires that I ask Ms Harbison a somewhat similar question. Ms Harbison, am I to understand that the employer would not propose to take into account whether or not someone was or was not a member of the union in the decision to employ or to maintain the employment of an employee. Is that correct?

PN44

MS HARBISON: Yes, sir.

PN45

THE SENIOR DEPUTY PRESIDENT: Can you give me an undertaking then that employees will be - sorry, prospective employees will be told that union membership is not a factor associated with whether or not they would be employed or not a factor that would influence their employment?

PN46

MS HARBISON: Can I just consult with my colleague?

PN47

THE SENIOR DEPUTY PRESIDENT: You certainly can. If you wish to do so in that regard, Ms Harbison, in the middle of that triangular microphone is a small button. If you push that, you can talk amongst yourselves before you respond to me. Make sure you push it again when you do want to respond to me though.

PN48

MS HARBISON: It is certainly not a factor in our decision-making process. We don't document it as part of our processes in terms of any contracts that we have. I will consider that probably this document is forming part of the contract of employment but certainly we would not consider it as our decision-making process in terms of recruiting any new person.

PN49

THE SENIOR DEPUTY PRESIDENT: Ms Harbison, how would you propose to comply with the provisions of clause 32.1? How would you go about strongly encouraging prospective employees to join and maintain financial membership of the union?

PN50

MS HARBISON: I would refer the union to any shop steward so they can approach any individual.

PN51

THE SENIOR DEPUTY PRESIDENT: I see.

PN52

MS HARBISON: As a free matter of association.

PN53

THE SENIOR DEPUTY PRESIDENT: Am I to take it then you would be referring the employee to a shop steward, is that correct?

PN54

MS HARBISON: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: And in doing so, are you able to give me an undertaking that you would at that point make it clear to current or prospective employees that the issue of membership will not influence their employment?

PN56

MS HARBISON: Absolutely.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you. I then take the parties to clause 33. Clause 33 establishes that Tenix will pay an amount per week on behalf of each CEPU employee. Can you tell me what happens relative to persons who may not be members of the CEPU?

PN58

MS HARBISON: I might refer to my colleague then.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, if the two of you want to have another discussion without the triangular microphone, feel free to do so.

PN60

MR DONNELLY: Sir, may I comment at this point in time?

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Donnelly, you may certainly comment.

PN62

MR DONNELLY: Yes, one comment that I would make, that the word "CEPU" should be deleted because it should be on each employee whether that person be a CEPU or not and we have had a similar issue on another EBA and the CEPU just should not exist there. That should be deleted. It is for any employee covered by Tenix, not just a CEPU person.

PN63

THE SENIOR DEPUTY PRESIDENT: Now, Mr Donnelly, I am taking it there that you would in effect be giving me an undertaking such that the union would consider the clause should read:

PN64

$15.85 including GST per week shall be paid on behalf of each employee to the income protection scheme policy.

PN65

MR DONNELLY: That is 100 per cent correct, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN67

MR DONNELLY: The CEPU should be deleted.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, the question for you, Ms Harbison, is whether or not Tenix are able to give me an identical undertaking?

PN69

MS HARBISON: Yes, sir.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Harbison, do the provisions of clause 34 impose any obligation on an employer other than Tenix?

PN71

MS HARBISON: I don't believe so, Commissioner. I don't believe so.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, you see what I am getting at there is that this is an agreement between the union and Tenix. It is not an agreement that establishes as I understand it, any binding obligation on any other party. Were it to be so, then it would be best categorised as a multiple business agreement.

PN73

MS HARBISON: You see, it is consistent with other clauses that we have in place which do not impose on third parties.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. And finally, out last question for both Mr Donnelly and you, Ms Harbison. Clause 36 relates to living away from home allowance. Can the parties give me an undertaking that with particular reference to the last sentence in that clause those consultations will not give rise to any action which might contravene the freedom of association provisions.

PN75

MR DONNELLY: Certainly can, sir. It is 71.

PN76

THE SENIOR DEPUTY PRESIDENT: Ms Harbison?

PN77

MS HARBISON: Yes, we are fine with that.

PN78

THE SENIOR DEPUTY PRESIDENT: With that undertaking, is that what you are saying?

PN79

MS HARBISON: Yes, Judge.

PN80

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of that information together with the statutory declarations, I am satisfied that the agreement was reached through a process consistent with that detailed in section 170LL of the act. I am similarly satisfied the agreement meets the necessary requirements for certification, is of a duration envisaged by the act, contains the necessary dispute resolution provision, meets the requirements of the no disadvantage test and does not on the basis of the undertaking that is given to me, breach a provision of the act.

PN81

Accordingly, I certify the agreement with effect from today. The certificate giving effect to that certification will be forwarded out to the parties within the next few days. It will detail the undertakings that I have been given. It will also list the various clauses about which I have sought clarification but it will not detail the responses that I have been given in that respect because those are recorded on the transcript on these proceedings. I congratulate the parties on reaching this agreement and trust that it operates to benefit both the employer and future employees of Tenix. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [1.55pm]