AG2004/1066, Transcript of Proceedings [2004] AIRCTrans 1822 (17 May 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 1669
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2004/1066

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MH of the Act
by the Construction, Forestry, Mining and Energy
Union-CFMEU, FFTS Union SA Divisional Branch
to terminate the South Western Manufacturing
Pty Ltd Certified Agreement 2000-2002

ADELAIDE

2.05 PM, WEDNESDAY, 5 MAY 2004

PN1

MR J. HOCKING: I appear for the CFMEU, Forestry Furnishing Products Division.

PN2

MR P. FARROW: I appear for Bedford Industries.

PN3

THE COMMISSIONER: Mr Hocking, do you want to talk to this?

PN4

MR FARROW: Yes, Commissioner. The application before you seeks to terminate the South Western Manufacturing Proprietary Limited Certified Agreement 2000-2002 in accordance with section 170MH of the Act. The agreement was certified by Commissioner Foggo on 15 September 2000, C number 36637 of 2000, and expired on 14 September 2002. At the time of certification South Western Proprietary Limited or Manufacturing Proprietary Limited was a business division of Bedford Industries, and that work was carried out at 6 Tyme Place, Unley, and the employees were covered under the Furnishing Industry National Award.

PN5

During mid-2001 onwards, the operation of this part of the business was progressively transferred to Bedford Industries at Panorama, and by the end of 2002 the move was complete with approximately 30 new employees now placed at Bedfords. Through this period and until more recently, the workers continued to come under the terms and conditions of the agreement. At the moment there are only 10 employees who are covered by the South Western Agreement due to redundancies during 2003.

PN6

Approximately 2 years ago, discussions for an enterprise agreement took place to cover all personnel working at Bedford Industries including the people with disabilities, also referred to as Centrelink-endorsed employees. A working party was set up with the various unions, management and elected representatives from the workshop comprising also of Greg Stevens, who participated in an advisory role during those negotiations. I must say it was a challenging exercise notwithstanding there were three Federal awards and 14 State awards to contend with during this exercise to formulate the new agreement, which was to cover 520 people with disabilities along with 120-odd staff employees.

PN7

During 2003, it was decided to have two agreements, one for the staff and another with the Centrelink-endorsed - employees. Due to some technicalities, it was accepted that one - sorry, two agreements would take place instead of the one. From those awards the parties used the highest rates they could where possible from the awards, so nobody would be disadvantaged, for example, like the meal allowance, leading hand rates and so forth.

PN8

Having said that the South Western Agreement had a provision where employees could cash out some of their annual leave on the grounds of economic hardship, which is under clause 25 of that agreement, as long as the case was a bona fide case and the proof lay with the applicant that that should apply. If the Commission determines that this agreement be terminated, the current employees will not be affected as the union and Bedford have agreed in writing to continue this practice for the current employees.

PN9

Also the same applies to sick leave. Under the Furnishing Trades Award and the Timber and Allied Industries Award there is a payout provision for accumulated sick leave annually prior to the Christmas period. In the new Bedford Agreement this condition still applies for the current employees. However any new employees would not receive the benefit, they would get 10 days as per the State jurisdiction, and not 8 as per the Federal award.

PN10

Pursuant to section 79 of the Industrial Employees Relations Act of 1994, Deputy President Hampton certified the Bedford Industries Agreement 2003 on 15 October, and during that hearing alluded to the parties of the termination of the South Western Agreement. Thereafter on 22 January 2004 DP Hampton certified the remaining agreement which covered the people with disabilities, thus called the Bedford Industries Employees Enterprise Agreement 2003.

PN11

Commissioner, the statutory declaration provided with the application, stipulates meetings took place with workers on 26 February and 2 March 2004 to determine by secret ballot as to whether the South Western Manufacturing Proprietary Limited Certified Agreement 2000-2002 should be terminated or not. I must point out the reason for the two meetings - - -

PN12

THE COMMISSIONER: How many employees participated in the ballot?

PN13

MR HOCKING: Ten.

PN14

THE COMMISSIONER: Ten, right.

PN15

MR HOCKING: Redundancy had taken place over that period of time, it was reduced considerably. I must point out the reason for the two meetings because two workers were away from work at the time. We wanted to make sure that everybody had a say, so we had to call another one for those two workers and went through the same process of the secret ballot. The outcome of the second ballot would not have changed the majority decision anyway at that point. So as a result of those ballots, the majority of the workers voted in favour to terminate an agreement.

PN16

THE COMMISSIONER: What was the result of the ballot?

PN17

MR HOCKING: I think it was 8 to 10, 8 for and 2 against. Sorry, 10 in total, 8 for and 2 against.

PN18

THE COMMISSIONER: Is there anything to enlighten me as to why two would vote against it?

PN19

MR HOCKING: Why two people voted against it?

PN20

THE COMMISSIONER: Yes, why would they vote against it?

PN21

MR HOCKING: Well, I don't know, it was a secret ballot. It was explained that nobody would be disadvantaged, as I explained earlier on. With those two provisions in the award with the sick leave payout and the annual leave payout, we do have an agreement in writing between the company and the union, that that does apply to the current employees. Down the track, new employees would come under the terms and conditions entirely of the Bedford Agreement, just those two.

PN22

THE COMMISSIONER: Well, there was discussion with the workers. Did any of the workers raise with you, Mr Hocking, or any other member of the union, any basis for objecting to termination of the agreement?

PN23

MR HOCKING: No, that didn't appear to be that - it was explained fully. They voted on the new agreement, that was done on its own accord. This one for some reason, two voted against, and as I said it was a secret ballot. Everything was laid out to them. I didn't seek to ask them why.

PN24

THE COMMISSIONER: I get the drift.

PN25

MR HOCKING: You know, and I guess because it was a secret ballot, I didn't quite know actually who voted against them.

PN26

THE COMMISSIONER: No, that is fine.

PN27

MR HOCKING: So, Commissioner, I guess that is all I can add, unless you have got any further questions, in relation to any of that stuff.

PN28

THE COMMISSIONER: No, not at this stage. I will just hear from Mr Farrow. Mr Farrow, what is the employer's view of this?

PN29

MR FARROW: Thank you, sir. Sir, we would support the application and endorse Mr Hocking remarks on behalf of the CFMEU. We have been involved in the process. I wasn't directly, but I had a delegate personnel manager involved who was satisfied with the process, participated in the meetings. I spoke to Mr Hocking on a number of occasions about the process that we should adopt and was satisfied that from the organisational perspective everything was being covered appropriately and in line with the legislation.

PN30

As Mr Hocking has indicated, our understanding and our undertaking has been that the terms and the conditions of the existing Bedford Industries Agreement, superseding the old South Western Agreement, will not disadvantage anyone in any way. As Mr Hocking has alluded to, we have already undertaken exchange of letters to make sure that those employees who would have been disadvantaged, should that other provision regarding the payout of annual leave not being provided, we have given them undertaking that we will honour that and recorded those people accordingly. So Bedford Industries' position is that we fully support the decision to rescind the agreement.

PN31

THE COMMISSIONER: Thank you. Under subsection (1) of section 170MH of the Act, the agreement the subject of proceedings of this nature must be past a nominal expiry date. The nominal expiry date of this agreement was 14 September 2002, therefore clearly it is well past the nominal expiry date. Under subsection (2) of section 170MH, the Commission must, upon receiving the application and I quote:

PN32

Take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.

PN33

The views of the union are clear from the application, from the submissions of Mr Hocking and from the statutory declaration that Mr Hocking has submitted in support of this application. The views of the employees are also clear from the secret ballot that was held as attested to by the statutory declaration of Mr Hocking. The views of the employer are as has been confirmed by Mr Farrow, that the employer supports the termination of the agreement. Subject to that, subsection (3) of section 170MH provides that the Commission needs to be satisfied that:

PN34

It is not contrary to the public interest to terminate the agreement.

PN35

I think on the basis of the explanation that you have given, Mr Hocking, about other arrangements that are in place and about the complex discussions that you have had and the other agreement that is in place and so on, I think that it is clear that it is not contrary to the public interest to terminate this particular agreement. Accordingly I can therefore indicate, I think, formally for the record that in relation to this application by the CFMEU Forestry and Furniture Products Division for the termination of a certified agreement pursuant to section 170MH of the Workplace Relations Act 1996, having heard from the relevant parties, the Commission considers that it has pursuant to section 170MH(2) adequately obtained the views of persons bound by the agreement about whether it should be terminated.

PN36

Pursuant to subsection (3), I consider that on the basis of the material before me, it is not contrary to the public interest to terminate the agreement. Accordingly pursuant to subsection (3) of section 170MH of the Act, I hereby order that the South Western Manufacturing Proprietary Limited Certified Agreement 2000-2002 be terminated with immediate effect, that is effective from today's date, 5 May 2004. The necessary written order to that effect will issue from my office in the next few days. So unless there is anything further from the parties, I think that disposes the hearing of that matter.

ADJOURNED INDEFINITELY [2.20pm]