AG2004/3060, Transcript of Proceedings [2004] AIRCTrans 1818 (17 May 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6987

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2004/3060

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Surdex Steel Pty Limited and Another for
certification of the Surdex Steel Pty Ltd
Certified Agreement 2004

MELBOURNE

10.05 AM, WEDNESDAY, 5 MAY 2004

PN1

MS WRIGHT: I appear from the Australian Industry Group on behalf of Surdex Steel Proprietary Limited, and with me, MR G. SCERRI, General Manager of Surdex Steel, and MR H. FURNESS, Operations Manager at the Dandenong site, MR K. JONES, a consultant working with the company to assist with the agreement, MR J. RODIER, employee representative from the Keysborough site and MR S. SCHIPKIE, employee representative from the Campbellfield site and MR P. JENKS, Manager, Campbellfield site.

PN2

MR LYONS: I seek leave to intervene on behalf of the National Union of Workers, and with me, MS M. FOX. Your Honour may have seen that we filed some material dealing with the basis of our intervention and we rely on those. We put a number of bases as to that, your Honour, but put simply we are an organisation which has been requested to represent people in respect of the making of an agreement pursuant to 170LK(4) and accordingly under section 43(2) the Commission in those circumstances is obliged to allow the intervention. I am not sure whether there are any points taken about that by my friend. We were discussing it just before your Honour entered the Court. We didn't get to the bottom of the question, if the Commission pleases.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN4

MR LYONS: I am happy to address that further but perhaps I won't unless it is necessary.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. I will see if there is any objection to it. Is there any objection to that position, Ms Wright?

PN6

MS WRIGHT: Your Honour, in relation to section 43(2)(a) of the Workplace Relations Act you may have noticed from the stat decs that we indicated on the stat decs that there had been no application under section 170LK(4) for an organisation of employees to represent employees in relation to this matter. The basis of that was that after the notice to employees was issued on 31 March the only approach to the company from the NUW was in relation to the making of a 170LJ agreement.

PN7

However, your Honour, this matter had gone out twice and the notice to employees had also been distributed on 12 March and I do believe that the NUW approached the company on 23 March and advised that they were representing employees of the company and that the employees were not happy with the agreement and that they wanted to serve a log of claims on the company which was subsequently done and that log of claims was in relation to a 170LJ agreement. So, your Honour, on that basis we would seek the guidance of your Honour in relation to whether or not - - -

PN8

THE SENIOR DEPUTY PRESIDENT: So you are saying there was a request in respect to the 12 March notice at least. Is that what you - - -

PN9

MS WRIGHT: Yes, I believe so.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MS WRIGHT: I'm not aware of any certificate being issued and we haven't sought any information from the union in relation to an employee wishing the union to act on their behalf although we don't doubt that they would be able to supply proof of that.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that. Mr Lyons.

PN13

MR LYONS: Well, your Honour, as you may have picked up from the remarks of Ms Wright, the issue about whether the union in respect of the second notice sought to represent employees is probably a live issue. I gather no great objection is taken anyway. It seems common ground that the negotiation process included advice from the union that they sought to represent people. Perhaps the easiest - to save time on the issue, your Honour, there's an alternative basis on which we, I think, intervene in the proceedings.

PN14

I also represent - and he is present in Court today - Mr Miller, who is an employee who will be bound by the agreement. He is therefore entitled to be represented in these proceedings and further pursuant to section 42(7) he is entitled to be represented by an industrial organisation of which he is a member and entitled to be a member. Mr Miller is a member of the National Union of Workers. So I think we are in on that basis, sir, even if the other basis is slightly confusing and may be unnecessary to determine at this point.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. What do you say as to that second basis, Ms Wright, that Mr Miller is in fact a party to the proposed agreement and seeks to be represented, well, seeks to appear, and the NUW is in effect his agent in that case?

PN16

MS WRIGHT: Look, your Honour, I will be guided by your judgment in this matter. My understanding was that the Commission, because this matter is a matter before the Commission under a division 2 or 3 of Part VIB for certification of an agreement, my understanding was that we needed to - or the union would need to show that they had leave to intervene under 43(2)(a) but we would be guided by your judgment in that matter.

PN17

THE SENIOR DEPUTY PRESIDENT: Very well. Well, leave is granted. I would think that Mr Miller has a right, as a party to the agreement, to appear in any case and to be represented by in this case the NUW, or some other agent. That would in effect put Mr Miller in a position as being a party. It is possibly the case that the union has a right to intervene in any case under 43(2) but I don't need to go to that and the complexity caused by the two notices in light of Mr Miller's interest in the matter. Yes, Ms Wright. I take it, Ms Wright, you have received - I notice it was copied to Surdex Steel - a copy of the intervener's outline of intentions.

PN18

MS WRIGHT: Yes, I have, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN20

MS WRIGHT: I have. Your Honour, this is an application made under division 2 of Part VIB of the Workplace Relations Act for certification of an agreement made in accordance with section 170LK. The terms of the agreement were reached between the company and the employees, as described in clause 3 of the agreement. Your Honour, in relation to the statutory declarations which we have submitted, we do seek to amend an answer given in question 5.10.

PN21

THE SENIOR DEPUTY PRESIDENT: 5.10, yes.

PN22

MS WRIGHT: We would seek to amend the final sentence to add that - in that final sentence we have said that the vote was counted - the ballot was overseen by an employee rep and management rep and that the ballot was counted by an employee rep and a management rep. Since signing the statutory declaration the company has become aware that at one site, the Bendigo site, while all the employees were present at the vote that the counting of the vote was done by the receptionist who is an employee but not covered by the agreement. So we would just wish to clarify that issue and the parties could provide an amending statutory declaration in terms of that. Mr Scerri is here today and able to give evidence and swear to that issue.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Is there any issue in relation to that, Mr Lyons?

PN24

MR LYONS: Your Honour, there are - - -

PN25

THE SENIOR DEPUTY PRESIDENT: It is just a question of whether Ms Wright needs to go to evidence.

PN26

MR LYONS: Well, we would seek to cross-examine Mr Scerri about the content of the declaration, perhaps given that he will be on the stand.

PN27

THE SENIOR DEPUTY PRESIDENT: In any case.

PN28

MR LYONS: We are content if Ms Wright allows him to give his evidence on that question orally rather than amended declarations being filed.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you. Ms Wright, the notices of 12 March and 31 March, were you intending to provide those to the Commission?

PN30

MS WRIGHT: Yes, I can provide those.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN32

MS WRIGHT: Your Honour, what I have put together is - and I can hand this up through Mr Scerri in due course but if I can hand it to you now to show you the notice - this is an exhibit which has a memo from Mr Gordon Scerri to his managers dated 10 March and then a copy of the notice to employees and a copy of the agreement which was distributed at that time.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I'll mark that, subject to the identification of the documents by a witness.

EXHIBIT #SURDEX STEEL1 MEMO FROM MR G. SCERRI DATED 10/03/2004, NOTICE TO EMPLOYEES AND COPY OF AGREEMENT

PN34

MS WRIGHT: In relation to the second notice I can also provide a memorandum to all managers dated 31 March, the notice to employees, a copy of the ballot form and a copy of the agreement which is subject to the application today which was distributed on - - -

EXHIBIT #SURDEX STEEL2 MEMO TO MANAGERS DATED 31/03/2004, NOTICE TO EMPLOYEES, COPY OF BALLOT FORM AND COPY OF AGREEMENT

PN35

THE SENIOR DEPUTY PRESIDENT: Ms Wright, I think you are aware from the outline of issues raised by the union that you are in a position to address those in the manner you wish in evidence. You are able to address those issues - - -

PN36

MS WRIGHT: The issues that have been raised by the union in evidence.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MS WRIGHT: Yes, we are.

PN39

THE SENIOR DEPUTY PRESIDENT: Very well.

PN40

MS WRIGHT: In relation to that I have another memo that went out to managers which indicates that the managers were instructed to make the vote on 15 April rather than 14 April. Do you want me to hand that up now and then put it to the witness or would you prefer - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. No, perhaps you could do that. I'll mark it Surdex Steel3 and again that will be subject to identification by a relevant witness.

EXHIBIT #SURDEX STEEL3 MEMO TO MANAGERS

PN42

THE SENIOR DEPUTY PRESIDENT: Can I interrupt you for a moment, Ms Wright?

PN43

MS WRIGHT: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: Mr Lyons, did you intend bringing any witness evidence?

PN45

MR LYONS: Yes, we do, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: In the form of?

PN47

MR LYONS: We have a witness statement from Ms Fox who is an organiser. We have a witness statement of Mr Miller and we have a statement signed by a number of employees at the Keysborough facility outlining various issues that go to the conduct and the making of the agreement. I might also add that we have a different version of the second LK notice, the notice of intention, which is dated after the date the company says in its declaration it was distributed and within 14 days of the day the vote occurred. That is, it is dated the 2nd and the vote, if your Honour is familiar with the stat dec - the statutory declarations - is said to have occurred on the 15th.

PN48

We would also seek to put into evidence a further memorandum that was distributed by Mr Scerri on 31 March which we say goes to the way in which the second vote was presented to the employees.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN50

MR LYONS: Perhaps when my friend finishes we are happy to table that material now so that it is on before Ms Wright calls her witnesses.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes. Would that be of any assistance, Ms Wright?

PN52

MS WRIGHT: Yes, your Honour, it would.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps if you could do that, Mr Lyons, and again I will mark the material subject to identification by a relevant witness.

PN54

MR LYONS: Is that all the evidence you have got?

PN55

MS WRIGHT: Probably not. I'm not sure but I mean, if your Honour - sorry.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, perhaps Ms Wright, if you can tell me what witnesses you are intending to call and if you have any further documentary material.

PN57

MS WRIGHT: Okay.

PN58

THE SENIOR DEPUTY PRESIDENT: The witnesses will be Mr Scerri, number one.

PN59

MS WRIGHT: Yes. We intend to call Mr Scerri and Mr Jarrod Rodier. However, I have other witnesses available to give evidence and although we had an outline of contentions from the union this agreement covers some nine sites and we weren't aware of exactly what the issues were. So while the General Manager is aware of what he instructed to occur at the sites, he wasn't directly involved in the process at every site. So if the union can produce the documentation that they seek to rely on it may be something that we can shorten that process.

PN60

THE SENIOR DEPUTY PRESIDENT: That might assist, yes, and did you have any further documentary material?

PN61

MS WRIGHT: I do. I have a document which shows the ballot results.

EXHIBIT #SURDEX STEEL4 BALLOT RESULTS

PN62

MS WRIGHT: I also have a document which I prepared which outlines a comparison of the agreement proposed and the previous agreement, the 2002 agreement.

EXHIBIT #SURDEX STEEL5 2002 AGREEMENT

PN63

MS WRIGHT: I don't know whether the union intends to put these documents up. I have copies of two letters from the NUW and a response from the company. I'm just not sure if they are of relevance.

PN64

THE SENIOR DEPUTY PRESIDENT: Well, if you intend to rely on them perhaps you can hand them up now, whether or not Mr Lyons refers to them.

PN65

MS WRIGHT: Thank you. I will hand them up. I am not sure whether they are particularly relevant really.

EXHIBIT #SURDEX STEEL6 TWO LETTERS FROM UNION TO COMPANY AND ONE REPLY

PN66

THE SENIOR DEPUTY PRESIDENT: Is that all you have, Ms Wright?

PN67

MS WRIGHT: Sorry, what was the exhibit number on that bundle of letters?

PN68

THE SENIOR DEPUTY PRESIDENT: 6, Surdex Steel6, that's the bundle of correspondence.

PN69

MS WRIGHT: Yes, that is all the documentary - - -

PN70

THE SENIOR DEPUTY PRESIDENT: Very well, we will have Mr Lyons table his documentary material. Mr Lyons.

PN71

MR LYONS: Thank you, your Honour. As I indicated, we have three statements and two further documents. The first is a statement of Ms Fox.

PN72

THE SENIOR DEPUTY PRESIDENT: I will mark the statement of Ms Fox, subject to its adoption obviously, NUW1.

EXHIBIT #NUW1 STATEMENT OF MS M. FOX

PN73

MR LYONS: Thank you, your Honour. The second is a statement of Mr Miller.

EXHIBIT #NUW2 STATEMENT OF MR MILLER

PN74

THE SENIOR DEPUTY PRESIDENT: Again, that is subject to its adoption.

PN75

MR LYONS: Thank you, your Honour. The third is a - forgive me for the term, but a collective statement of employees employed at Keysborough.

EXHIBIT #NUW3 STATEMENT OF KEYSBOROUGH EMPLOYEES

PN76

MR LYONS: The final two documents - the first is a copy of the 170LW notice distributed at Dandenong.

EXHIBIT #NUW4 COPY OF 170LW NOTICE DISTRIBUTED AT DANDENONG

PN77

MR LYONS: I might add, your Honour, that in respect of that there is some handwritten notation on that which is mine. I didn't realise I was drawing on the only copy we had when I was reviewing the documents. So the text is the original but the scribbles are my own.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, well they may assist Ms Wright in a moment.

PN79

MR LYONS: The final document, your Honour, is a memorandum from Mr Scerri to employees dated 31 March '04.

EXHIBIT #NUW5 MEMO FROM MR G. SCERRI TO EMPLOYEES DATED 31/03/2004

PN80

MR LYONS: Other than that, your Honour, we have some further submissions as to the law which probably - I don't know whether it is your practice to mark.

PN81

THE SENIOR DEPUTY PRESIDENT: No, I wouldn't.

PN82

MR LYONS: No, and the only remaining document we would seek to put to the witnesses is the model form R30 provided for by the rules of the Commission because we say that the declaration filed is defective and omits to answer certain questions. So we would seek to put that to Mr Scerri in the first instance.

PN83

THE SENIOR DEPUTY PRESIDENT: Very well.

PN84

MR LYONS: So again I don't know whether it is your practice to mark documents that are simply in public provenance.

PN85

THE SENIOR DEPUTY PRESIDENT: No, well that is a document of the Commission but Ms Wright is aware of it.

PN86

MR LYONS: That is the only additional document we would seek to put to a witness, if the Commission pleases.

PN87

THE SENIOR DEPUTY PRESIDENT: Very well. Well, that raises a question as to either or both parties desire some short period to look at that material before we get under way and there is a second issue of how we treat witnesses - politely obviously, but whether they are excluded from the Court whilst evidence is given.

PN88

MR LYONS: If I could just add one thing to that, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90

MR LYONS: I am happy to have a discussion with my friend about that before your Honour comes back into Court. I indicated that it may be foreshadowed that my friend didn't know exactly how many witnesses she was going to call. My view is that that should be determined before - I mean, our material is now on. We wouldn't want a situation where our witnesses are examined and then the company seeks to adduce further evidence as that would be almost certainly likely to necessitate a recall of the union's witnesses. So I think properly done, my friend should establish what evidence it is that she wants to put in so that we hear the matter in an orderly fashion.

PN91

THE SENIOR DEPUTY PRESIDENT: Well, you will be obliged in any case to put to Ms Wright's witnesses anything you wish to rely on.

PN92

MR LYONS: Absolutely, your Honour, I was just - with some trepidation, while I wouldn't - I would respectfully submit wouldn't be - a proper or orderly course would be for there to be additional applicant witnesses called after the conclusion of ours.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes. Well, obviously if that situation arises in this to request an application made, we will deal with it at the time but you have certainly made your position clear.

PN94

MR LYONS: If the Commission pleases.

PN95

THE SENIOR DEPUTY PRESIDENT: Yes. How long, from your point of view, would you require to look at the material now provided, both Mr Lyons and Ms Wright?

PN96

MR LYONS: Well, from our point of view, your Honour, given that there is no witness statements and most of the documents my friend relies on are already in our possession, we don't need long.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Wright.

PN98

MS WRIGHT: Probably half an hour I would say.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes, very well and you are content to talk to Mr Lyons about how we might deal with witnesses, their presence in the Court or otherwise.

PN100

MS WRIGHT: Yes.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN102

MS WRIGHT: Your Honour, would it be your - in which order would you seek the witness evidence, from the union first or from our side first?

PN103

THE SENIOR DEPUTY PRESIDENT: Well, I would hear the evidence of the applicant in the first instance.

PN104

MS WRIGHT: Being us.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes, being the company. Yes, very well.

PN106

MS WRIGHT: I may need 45 minutes.

PN107

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn till 11.15. That will allow me to digest the Living Wage Case Decision and the materials provided in this matter. I will adjourn until that time.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SURDEX STEEL1 MEMO FROM MR G. SCERRI DATED 10/03/2004, NOTICE TO EMPLOYEES AND COPY OF AGREEMENT PN34
EXHIBIT #SURDEX STEEL2 MEMO TO MANAGERS DATED 31/03/2004, NOTICE TO EMPLOYEES, COPY OF BALLOT FORM AND COPY OF AGREEMENT PN35
EXHIBIT #SURDEX STEEL3 MEMO TO MANAGERS PN42
EXHIBIT #SURDEX STEEL4 BALLOT RESULTS PN62
EXHIBIT #SURDEX STEEL5 2002 AGREEMENT PN63
EXHIBIT #SURDEX STEEL6 TWO LETTERS FROM UNION TO COMPANY AND ONE REPLY PN66
EXHIBIT #NUW1 STATEMENT OF MS M. FOX PN73
EXHIBIT #NUW2 STATEMENT OF MR MILLER PN74
EXHIBIT #NUW3 STATEMENT OF KEYSBOROUGH EMPLOYEES PN76
EXHIBIT #NUW4 COPY OF 170LW NOTICE DISTRIBUTED AT DANDENONG PN77
EXHIBIT #NUW5 MEMO FROM MR G. SCERRI TO EMPLOYEES DATED 31/03/2004 PN80