AG2003/9343, Transcript of Proceedings [2004] AIRCTrans 196 (8 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1264

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9343

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by the Automotive, Food, Metals, Engineering
Printing and Kindred Industries Union, Printing
Division South Australia Region and Another
for certification of the Spicers Stationery
(Regency Park) and AMWU Enterprise Bargaining
Agreement 2003

ADELAIDE

2.15 PM, FRIDAY, 19 DECEMBER 2003

PN1

MR C. LARNER: Regional Secretary, Printing Division, AMWU.

PN2

MR R. WOMALD: The FAC at Spicer Stationery, Regency Park.

PN3

MR R. ORDNER: Manufacturing Manager at Spicer Stationery.

PN4

MR M. BURNS: Group HR Manager, Spicer Stationery Group.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, I understand, Mr Womald, that you are going to open these proceedings this afternoon. Is that correct?

PN6

MR WOMALD: That is correct, yes.

PN7

THE SENIOR DEPUTY PRESIDENT: Now, can I take it, Mr Womald, that you rely upon the union statutory declaration filed in this matter. That is the declaration of Mr Larner?

PN8

MR WOMALD: Yes, that is correct.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Womald, I have a couple of questions of the employer relative to that process followed in reaching the agreement, but I do not have any questions of the union at this stage, unless there's something particular you want to say to me about the process?

PN10

MR WOMALD: No, no questions at this stage.

PN11

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Ordner, or Mr Burns, which of you?

PN12

MR BURNS: It will primarily be me, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Very well. That is Mr Burns. Mr Burns, can I take it that you rely upon the employer statutory declaration in support of the application?

PN14

MR BURNS: We do, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Can you clarify for me the steps that were taken to ensure that employees had or had reasonable access to the agreement in writing at least 14 days before 24 November?

PN16

MR BURNS: Certainly, your Honour. I understand that copies were made available in a public place within the plant and all employees were given communication that they could access this at times within their working hours.

PN17

THE SENIOR DEPUTY PRESIDENT: I see. How was the agreement explained to employees?

PN18

MR BURNS: There was - I should just say, there were explanations in terms of discussions, presentations, from the union and also discussions on the floor with management. Primarily by walking around, nothing by actual formal presentations.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Finally, the casual employees about whom reference is made in part 5.3 of the statutory declaration. Were they employees of the employer?

PN20

MR BURNS: I think there were a small number of casuals, but primarily they would be contractors that are employed by a third party that is not party to this agreement, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, if you see paragraph 5.4 says that there are 10 casual/labour hire employees. I'm just anxious to know that the only people who voted on this agreement were employees of this particular employer.

PN22

MR BURNS: I see your point, your Honour. It is - my understanding is that it is only that those casuals and contractors were not involved in any of the agreements or anything along those lines.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN24

MR BURNS: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: Now, is there anything further you want to say to me about the process whereby the agreement was reached?

PN26

MR BURNS: No, your - if you would like to, yes.

PN27

MR ORDNER: If I could, your Honour. We went into negotiation as I did with Craig on the last couple. Last two went very well over a long period of time. This time we started in March, went through. At no stage at all - I state this from the company side, no stage at all did either the party come to the stage where it was a non-negotiable or a stand-off situation.

PN28

Everything has been done in good faith and I've got to go on records here in saying that Craig and Richard and the committee and the management committee worked in tremendously well together and really it went through. All questions were asked all the way through. I couldn't - as far as the company goes, couldn't be more happy with the way the transition went through the whole process of negotiations.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Ordner. I shall take that as solid indication that if I certify the agreement I shouldn't expect to see the parties back under the terms of the dispute resolution provision.

PN30

MR ORDNER: If they come back, all right for hearing time?

PN31

THE SENIOR DEPUTY PRESIDENT: Now, Mr Womald, I'm going to ask a number of questions about the agreement. Some of my questions may well come to you, but a majority I will direct to the employer. Insofar as I direct a question to the employer and you disagree with the answer, or want to add something to the answer, please feel free to do so. My questions do not invite either party to rewrite the document.

PN32

They simply go to clarifying some of the intentions underpinning the agreement in a fashion which I will take into account in the decision to certify the agreement. Mr Burns, can I take you first of all to clause 6 of the agreement. Can I just clarify here, 6.1 as I read it in effect watermarks the Graphic Arts General Interim Award 1995, that is the pre-simplified version, as it stood at 1 January 2000. So it is proposing that the agreement should be read alongside that pre-simplified award as it stood at January 2000.

PN33

MR BURNS: That is correct, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: So that any monetary amount set out in that award as it now stands do not apply and I would simply look at monetary amounts as they existed come 1 January 2000.

PN35

MR BURNS: I suspect that is probably where 6.2 came in, your Honour, and that was primarily to start to make sure we were preserving over-award payments and conditions of employment. Certainly they do apply to the '95 award. The focus is in terms of maintaining what is already above-award wages.

PN36

THE SENIOR DEPUTY PRESIDENT: You see, the difficulty that often arises in this regard and the reason underpinning my question is that it is not uncommon for parties to want to refer to a pre-simplified award. By and large they generally seek to update the monetary amounts set out in that award to take account of changes that have occurred since the award was simplified. I'm just trying to understand what it is the parties are proposing to do. If I understand it correctly - tell me if I'm wrong - the parties want this agreement to be read in concert with the award as it stood at 1 January 2000. Insofar as any existing over-award payments or perhaps better phrased as any existing payments, the parties intend that those payments continue unless the provisions of this agreement deal with a particular issue.

PN37

MR BURNS: That is correct, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: If this agreement is inconsistent with that award as it stood as at January 2000 then the agreement takes precedence?

PN39

MR BURNS: That is certainly correct, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: In effect the parties do not intend to have any regard at all to the Graphic Arts Award in its simplified form.

PN41

MR BURNS: If I could just say, your Honour, it actually was a point of negotiation. The employer was keen to pursue the 2000 award but the preference from the union, and understandably when we discussed it, was a wish to stay with the '95 award in its pre-simplified form. It has been more a focus on the conditions that are contained within that award than the wages and related allowance principles and that was because they seem to have been dealt with primarily in terms of the increases secured within the agreement.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR LANER: If I may, your Honour, in relation to wages through the negotiations, at no time has it been the intention or the spirit of the parties that upon any new employees starting with the company that anyone would be seeking to pay them the incorrect rate of pay. The award rates of pay as in 2000 would be observed but mainly on the basis of what is contained in the agreement and the employee receiving the site rate for the classification for which they were employed.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 11 - I would give you a page number but they are all numbered page 1.

PN45

MR BURNS: My copy is showing different page numbers as it goes, so our apologies.

PN46

THE SENIOR DEPUTY PRESIDENT: I take it we are all referring to the same document?

PN47

MR BURNS: I would think so.

PN48

THE SENIOR DEPUTY PRESIDENT: Clause 11 relates to the reduction in waste and spillage. It refers to a progress board. It also refers to consultative committee functions. Who is responsible for determining the amount of the benefit to be paid to the employees associated with the reduction in waste and spillage

PN49

MR BURNS: Your Honour, that is a management responsibility. If I can just refer very quickly to the progress board, that is a relatively new introduction.

PN50

MR ORDNER: Your Honour, with the waste reduction program, we had it in approximately the last two agreements and this one, looking at ways for people to look after products, the company expects them to do that, and some way to come back with a reward payment to them, not for working hard or anything, but just for everyone, including management, to work smarter. Every single operation we do in the plant has got - is on a computer program an estimate of how many hours and how many kilos to do on a particular job. It works out between one job is 4.5 per cent to 5 per cent.

PN51

Now, over the period since this waste has been in, any finished work document comes through the plant, instead of having, say, the 5 per cent wastage it comes in at a 4.2 per cent wastage, that shows up in the computer program the dollar amount. That is then split two ways, 50 per cent to the company and 50 per cent to the employees. These work dockets, the booklet with everything in, is available to the union at any time to check. We brought in even things that if someone of a night time nicked out to the warehouse and got another five reams of paper to cover up any waste or spoilage, we continually each month do what we call a paper check, computer figures to actual, and never at any one time has anyone taken advantage of that.

PN52

Everything that is issued out to the store is issued out on what they call a GRM with the exact kilos on which then goes on to the computer. So I can honestly say without fear of contradiction it is 99.9 per cent correct as far as the amount of savings that people come up with. The first couple of years we had a little bit of improvement, then I think Craig would know only too well that when people saw that, you know, just through thinking a little bit smarter: we can be rewarded for this, has probably been one of the best things as far as relationships go between management and people and the monetary gain which they all get the week before Christmas worked out very effectively both to the company and the people.

PN53

The company gets certainly the benefit of more product and it is split equally, 50 per cent each way, and the employees get that. Correct me on the right dollar terms but I think it was $750 this year for each employee in the plant. So it has been very, very effective. I'm trying to get it into other parts of our group because it just makes people from management down think smarter on what they are doing in manufacturing today, which we've got to if we have got to compete with - a lot of the stuff that comes in is import and it has been very successful, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. The progress board, what is the make-up of that board and its function?

PN55

MR ORDNER: The progress board, all of the work dockets are added up each month on the computer and it comes up with a dollar figure of, say, 3 or $4000. On this board which is out in the factory the employees' amount that they will get is put up each month and then people can see it is not just how we are going at the end of the year. We are keeping them informed all the way through of January $4000, another $4000 in February, all added up, so right through to when it is paid out in December people can see at any one time how they are going and it has been pretty successful by all means.

PN56

MR LANER: If I may, your Honour? The wastage and determination of those amounts is discussed in open forum at the consultative committee with management and employee representatives. They discuss the progress of the scheme and then at the end of the meeting after they have tabled their minutes to the factory floor the amount, as Mr Ordner said, is then displayed, whether it has increased or decreased, to show the progress to the employees, so it is just transparent.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 12.5 refers to capacity to vary working times by agreement with the Father of the Chapel. I believe that role falls to you at the present time, Mr Womald. Can I seek clarification, perhaps best achieved from the union, as to the extent to which that agreement the Father of the Chapel may take into account the views of or position of people who may not be members of the union.

PN58

MR WOMALD: It is done on a consensus of union members. Basically when we have extreme temperatures or climatic conditions we discuss whether or not we need to take some form of action. In the past there's been the classic example where temperatures were 37, 39 degrees and what we do is take - we start earlier in the morning and finish earlier in the day and although non members are not often generally asked, their opinions are expressed and we hear them.

PN59

THE SENIOR DEPUTY PRESIDENT: So although non members not generally asked - I didn't hear your next comment.

PN60

MR WOMALD: Their opinions are often expressed and we do take heed to what they say. We only have three non-members. Although they are non-members they also have friends there who are members and so quite often their opinions or expressions of what we should do are passed through members to us on the committee.

PN61

THE SENIOR DEPUTY PRESIDENT: I see.

PN62

MR LANER: Just if I may, with the non members, as Mr Womald said, knowing the culture of the plant, those non members do still communicate with the FOC and express their concerns not just through other members of ours on the floor but also directly to Mr Womald, but also directly to Mr Ordner.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Burns, can you confirm to me that persons who are not members of the union are treated in the same way as persons who are members of the union relative to hours of work?

PN64

MR BURNS: I certainly can.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you. I take it that with reference to clause 14.12 the same arrangement would apply? That is - I think this is perhaps best addressed to Mr Burns - how does the employer then deal with a dispute that might involve an employee who is not a member of the union?

PN66

MR BURNS: Your Honour, I would need to just ask Mr Ordner very quickly within the context of the time off in lieu arrangement just what that clause is referring to.

PN67

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN68

MR BURNS: My understanding of this is that this is a specific arrangement tied particularly to the people that are performing the work that we have within the plant and they are, I think, exclusively members. The people that are contracted in are covered other duties and other aspects or other areas and I'm not sure that the sort of duties that they are doing or the length of time they are doing would allow them to accrue the time off if needed. I would like to just clarify that very quickly.

PN69

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN70

MR ORDNER: Certainly, your Honour. What happens with the three people that aren't in the union, everything that applies in this document applies to them. If there's a dispute comes up they will come to me. I will then involve the FAC and we've had a few of them over the years without a doubt, from anything from whatever, and there's not one that I can say we've had to go to outside people to come in as a disputes committee. We've always been able over - from Craig's time in there to Richard's time - been able to sort it out amongst ourselves without having to get outside people to fix that problem up.

PN71

THE SENIOR DEPUTY PRESIDENT: If a non union member wanted to be represented by someone relative to a dispute over time off in lieu of overtime, could they be represented by a solicitor?

PN72

MR ORDNER: Yes, they could.

PN73

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 18, in particular 18.1, makes reference to the Printing and Graphic Arts Industry Training Package. I understand that to be a documented package. Should I also understand that it is readily available to employees on request?

PN74

MR ORDNER: Your Honour, I'm not sure, because to be honest I haven't seen it yet. I'm aware of the principles of the package and what it seeks to apply. The intention for that entire clause is to obviously establish a more structured approach to not just training but learning and development of career paths to some extent. I would suspect that that instrument beyond certainly being made available to everybody to access would probably also be made available as part of their individual learning and development plans.

PN75

MR BURNS: I need to see the efficacy of that in terms of where it goes but it certainly would be available at a collective level within the workplace.

PN76

MR WOMALD: Your Honour, if I may, just with the industry training package, put forward in its amended form in the New Year. It is training plan, so to be developed.

PN77

THE SENIOR DEPUTY PRESIDENT: I see, and 18.8 gives rise to a question of Mr Burns: this envisages that an alternative arrangement might be reached with the union. To what extent can you give me an assurance that any alternative arrangement would apply equally irrespective of whether someone was a member or not a member of the union?

PN78

MR BURNS: Wholeheartedly, your Honour, the intention is, in terms of the reference to those other categories of employees only is if their development needs varied from the predominant category of worker we have. For example, an apprentice is more likely to need to be availed of this clause than others who are very experienced and been there a longer period of time.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. Clauses 25 and 26 refer to policies on, firstly, affirmative action and secondly, harassment. Am I to understand those policies are documented, that they are readily available to employees and that they may be changed over the life of this agreement?

PN80

MR BURNS: That is correct in all respects. They are available both via paper-based formats and also on the company's intranet sites.

PN81

THE SENIOR DEPUTY PRESIDENT: Clause 29 relates to journey insurance. It refers to a cover of up to $1000 per week. Is that - sorry, is the amount of that cover determined by the employees ordinary time rate, plus their regular overtime, or is it calculated on the basis of average weekly earnings or is there some other calculation?

PN82

MR BURNS: My belief is that it would be on the basis of average weekly earnings. It may also extend to cover one of the regular penalties where there are non-rotating, i.e. fixed shift arrangements as well.

PN83

THE SENIOR DEPUTY PRESIDENT: Presumably, they would be picked up by average weekly earnings.

PN84

MR BURNS: Indeed, but I don't believe it would go as far as overtime which it obviously varies.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 33 refers to the paper links policy relative to relocation. Once again, is that a documented policy? Is it really available to employees and may it be changed over the life of the agreement?

PN86

MR BURNS: Again, in both counts your Honour, yes. It is readily available, again under the same media so paper-based and also via intranet and can be changed in accordance with the wider company policy.

PN87

THE SENIOR DEPUTY PRESIDENT: Clause 34 relates to contract labour. Now, this is an agreement as a I understand it reached firstly, between the employer and the union and it is an agreement then that has been confirmed by a valid majority of the employers, employees. Now, to what extent should I then simply read clause 34 as indicating undertakings and commitments on the part of the parties to this agreement as distinct from proposing obligations that it would extend beyond these parties?

PN88

MR BURNS: Your Honour, if we go in that latter case I think we are extending beyond the employment relationship which causes me some concern. I think what we are looking at is an intention and undertaking between the parties.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN90

MR LANER: Can I add to that?

PN91

THE SENIOR DEPUTY PRESIDENT: Yes.

PN92

MR LANER: The clause 34 is - and how it is operated on the site - is that it is just to ensure that people are not engaged for longer than 6 months in a casual basis and usually if they are it is through discussions with the consultative committee and the FAC and in most cases to - Mr Womald's practice has been to offer permanency to those casual employees.

PN93

THE SENIOR DEPUTY PRESIDENT: Thank you. I'm really simply seeking to clarify that the clause does not purport to establish a binding obligation on any party other than a party to this agreement.

PN94

MR LANER: Correct.

PN95

THE SENIOR DEPUTY PRESIDENT: Clause 34 also indicates that the - in the last sentence that the clause may be varied. Am I to understand that the intention of the parties there is, in effect, to say that the maximum of 12 contract workers might be varied so long as it does not exceed a maximum of 15 per cent of the total production classifications or jobs? It is not so much varying the clause but varying the maximum amount, is that correct?

PN96

MR LANER: Your Honour that is correct. The agreement between the parties is actually reached in our current EBA, the 2001 document for - if the company expanded its operations we had the ability also to give flexibility to the company to meet its needs.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you, and clause 35 relates to wage increases. Would it be possible, Mr Burns for the employer to provide to me a wages schedule that sets out the actual wage amounts, either throughout the life of the agreement or certainly taking into account the first of the wage increases provided for?

PN98

MR BURNS: Certainly your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: Perhaps before you provided that to me, to provide a facility for either Mr Larner or Mr Womald to look at that so that they could endorse it as an agreed position.

PN100

MR BURNS: Yes, certainly.

PN101

THE SENIOR DEPUTY PRESIDENT: Over what time-frame would you be able to provide that to me?

PN102

MR BURNS: Given the Christmas break that creates a difficulty for us but we have our payroll function, I understand, back on deck in the second week of January.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes.

PN104

MR BURNS: I would seek to produce a report from that point there.

PN105

THE SENIOR DEPUTY PRESIDENT: I see. You would not be able to provide it to me in the next couple of days?

PN106

MR BURNS: I will make some contacts if we can adjourn for a few minutes and see what can be done.

PN107

THE SENIOR DEPUTY PRESIDENT: No, I will leave that as a question with you, given the time of the year. Simply put were you able to provide it to me within the next day or so we would endeavour to expedite conclusion of the application.

PN108

MR BURNS: We would be keen to do so. I will have to check on the availability of individuals. We have a number of people that are obviously finishing up tonight your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Womald, I'm taking it that where you have been silent you are in agreement with the company's response?

PN110

MR WOMALD: Yes I am.

PN111

THE SENIOR DEPUTY PRESIDENT: Very well. I can advise the parties that on the basis of the information provided to me, together with that contained in the statutory declarations, I am satisfied that the agreement was reached through a process consistent with the Act. I am also satisfied the Agreement itself meets the requirements of the Act insofar as it is of a duration envisaged by the Act that it contains the necessary dispute resolution procedure, that the agreement does not contain provisions which are contrary to the Act.

PN112

When I receive the wages schedule from the parties I will then be in a position to make a final determination relative to the no disadvantage test. On the basis that that information is to be provided to me before Christmas I will endeavour to expedite the certification of the agreement effective from the date upon which I receive that material. Obviously, if the information is not able to be provided to me before Christmas you may have to wait for a couple of weeks before you receive your certificate.

PN113

That certificate will be dated from the date upon which I receive confirmation of an agreed wages schedule. The certificate will detail the various clauses about which I have sought clarification. It will not detail the answers because those are recorded on the transcript and, as I said earlier, I trust that the parties will not need to exercise their dispute resolution provision such that this agreement should operate to benefit both the employer and the employees.

PN114

MR LANER: If I may your Honour, just on the fact of the wages schedule for the benefit of the company, that information that will be not made available to the public through - at the end of that that will be a document held in confidence by the Commission.

PN115

THE SENIOR DEPUTY PRESIDENT: It will be a document that I will hold on the Commission's file. It is not part of the agreement so it won't be published with the agreement but as a document on the Commission's file it becomes a public document, or publicly accessible. I would have to say there are not very many people in our system that derive a great deal of satisfaction from wading through the Commission's files. Nevertheless, it is a document that would be recorded on the Commission's files.

PN116

MR LANER: Understood. The purpose of the question is that it wouldn't be on the wage net.

PN117

THE SENIOR DEPUTY PRESIDENT: No, it won't be attached to the agreement as such.

PN118

MR LANER: Thank you.

PN119

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

ADJOURNED ACCORDINGLY [2.50pm]