AG2004/3350, Transcript of Proceedings [2004] AIRCTrans 2111 (7 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7251

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2004/3350

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Australian Workers Union, Victoria
Branch and Another for certification of the
Barro Group Pty Limited Mountain View Quarries
(Sunshine, Pt Wilson, Maude, Bellarine, Nyora,
Donnybrook) Enterprise Agreement 2004

MELBOURNE

1.13 PM, WEDNESDAY, 26 MAY 2004

PN1

MS S. HURST: I appear on behalf of the Australian Workers Union.

PN2

MR B. MOSCHINI: I appear on behalf of the Barro Group.

PN3

THE COMMISSIONER: Thank you. Ms Hurst?

PN4

MS HURST: Commissioner, this is an application made jointly by the Australian Workers Union and Barro Group in relation to an application for Division 2, Part VI(B) of the Act for an agreement under section 170LJ. The statutory declarations have been filed with the Commission indicating the requirements of the Act and the fact that those requirements of the Act have been met. Certainly I would like to just tender for the Commission a further statutory declaration that has been prepared by Mr Moschini that goes to the lateness of the application.

PN5

THE COMMISSIONER: Just a moment, Ms Hurst, I will just ask my associate go and tell those people to be quiet or close the door or something. All right, thank you for that. We will call this A1.

EXHIBIT #A1 STATUTORY DECLARATION PREPARED BY B. MOSCHINI RE LATENESS OF APPLICATION

PN6

MS HURST: Thank you, Commissioner. The agreement was endorsed by the employees at the respective sites on 30 March this year. It was lodged some extensive period out of time and that was due to an administrative delay in processing the agreement and the accompanying statutory declarations. Certainly in relation to the lodgment of the document Mr Moschini's statutory declaration indicates that there has been no change to the workforce between the time in which the agreement was endorsed and when it was in fact lodged with the Commission so we would be requesting that the Commission exercise its discretion under section 111(1)(r).

PN7

The agreement covers 59 employees. It contains a dispute settlement procedure at clause 30 which allows for the Commission to have a role in mediation over issues of the agreement and it has a nominal expiry date of 30 March 2006. We would submit that the requirements of the Act, rules and regulations have been met. Unless the Commission has any further questions we would request that the agreement be certified. If the Commission pleases.

PN8

THE COMMISSIONER: Thank you, Ms Hurst. Mr Moschini, do you wish to say anything?

PN9

MR MOSCHINI: No sir.

PN10

THE COMMISSIONER: I want to ask some questions about the agreement. If we turn to clause 3 of the agreement the union is not named as a party to the agreement.

PN11

MS HURST: No Commissioner that is correct and not having - - -

PN12

THE COMMISSIONER: And the agreement in that form cannot be certified.

PN13

MS HURST: Yes and I would be surprised if there was an intention to not have the union as a party.

PN14

THE COMMISSIONER: It is clear that that is an oversight isn't it?

PN15

MR MOSCHINI: Sorry, it is an oversight, sir.

PN16

THE COMMISSIONER: It is an oversight, but the law won't permit the agreement to be certified unless the union is said to be a party to it. I take it as a matter of fact it is a party to it, but the agreement is the written terms of the agreement, that is what is to be certified so what I suggest is that perhaps a replacement document that includes a record of the fact that the union is a party to the agreement be filed with the Commission. The next matter was in relation to clause 10 - no, not clause 10, clause 11 I beg your pardon. I doubt whether that term of the agreement can be certified having regard to section 170LI(b) of the Act. It seems to me that a reading of that term of the agreement is that those probationary employees are actually not subject to the terms of the agreement during the period of probation. If I can draw the parties attention to section 170LI(b) of the Act:

PN17

The agreement must apply to all persons whose employment is subject to the agreement at all times during the life of the agreement.

PN18

So there is no question but that the probationary employee is subject to the agreement in the sense that they will work in the classifications of work and do the duties that the agreement applies to, but clause 11 would have the effect of excluding them from the operation for the probationary period. So I think with all due respect that the agreement cannot be certified with clause 11 in it.

PN19

MS HURST: Commissioner, I - again as I indicated before I wasn't involved personally in the development of the agreement, but I have just had a brief discussion with Mr Moschini. I think the intention of that clause is really to put into the agreement the probationary period of employment and its intent isn't to exclude them from the terms of the agreement - - -

PN20

THE COMMISSIONER: The terms and conditions. All right.

PN21

MS HURST: - - - and I understand the concern you have. We would be happy to - - -

PN22

THE COMMISSIONER: All right. I will ask Mr Moschini to give an undertaking, it won't be necessary to redraft. Mr Moschini, can you give an undertaking for the purposes of the Workplace Relations Act that insofar as clause 11 is concerned that that will not be applied in any way except as the formalisation of a probationary employment arrangement for a period of three months?

PN23

MR MOSCHINI: Yes, I will give that undertaking.

PN24

THE COMMISSIONER: And that insofar as those probationary employees are concerned they will otherwise enjoy all the terms and conditions of employment in the agreement?

PN25

MR MOSCHINI: Yes, I give that undertaking.

PN26

THE COMMISSIONER: Very well, thank you. Now, one thing you might just have to help me with, it is a bit arithmetic, the casual employment it seems to be $18 an hour for everyone. All casual employees no matter what grade; is that right?

PN27

MR MOSCHINI: I am sorry. Yes, we introduce a casual employee based on a level 1 with a factoring on it.

PN28

THE COMMISSIONER: So you don't employ casual employees in any other classification except level 1.

PN29

MR MOSCHINI: Correct.

PN30

THE COMMISSIONER: Will you give an undertaking that for the life of the agreement no casual employee will be classified any higher than - will perform duties any higher than a level 1?

PN31

MR MOSCHINI: Yes, I give that undertaking.

PN32

THE COMMISSIONER: Right, thank you. Clause 15 sick leave. Now, my reading of the clause is that it provides for two days sick leave less than the award; is that right? I may be wrong about that. It may not be fatal, I just want to see whether I am right or I am mistaken. I read this yesterday and when I went through it I made a note of that. I think it is seven days in the award.

PN33

MS HURST: Sorry, Commissioner, I don't have a copy of the award with me.

PN34

THE COMMISSIONER: Well, I do and I am just turning it up now and I will read it to you.

PN35

MR MOSCHINI: Sorry, Commissioner, this clause here has been rolled over from the previous agreement.

PN36

THE COMMISSIONER: Right.

PN37

MR MOSCHINI: If that helps at all.

PN38

THE COMMISSIONER: The personal leave clause provides personal leave which may be used for sick leave purposes. It is a slightly different provision now after the Commission's test cases to the traditional arrangements and, "Personal leave of seven days will be available in the first year of service." That is clause 34.1.2(a) of the Award. We only need to note that for the time being, that need not be fatal to the application, but I just wanted to be clear on my understanding both of the agreement and check for understanding in relation to the award. Now, clause 18(b) - now, I don't actually understand the meaning of this clause as to whether it is a shift allowance or - what happens - what are the ordinary hours per week?

PN39

MR MOSCHINI: Normally between six and four.

PN40

THE COMMISSIONER: Right. So what do you say that the ordinary working week is?

PN41

MR MOSCHINI: Monday to Saturday.

PN42

THE COMMISSIONER: Yes, but what number of ordinary hours are to be worked?

PN43

MR MOSCHINI: Fifty hours.

PN44

THE COMMISSIONER: Fifty hours per week?

PN45

MR MOSCHINI: Correct.

PN46

THE COMMISSIONER: So fifty hours at ordinary time per week?

PN47

MR MOSCHINI: Fifty hours for the rates in the document it is based on - that is what they get for fifty hours.

PN48

THE COMMISSIONER: All right.

PN49

MR MOSCHINI: That is the hourly rate for the 50 hours. After that the penalty rates kick in which is in I think the last table.

PN50

THE COMMISSIONER: All right. Well, how does afternoon - - -

PN51

MR MOSCHINI: Sorry, what we have, sir, is an afternoon shift at one of our quarries where we start them at 2 o'clock and they work until 11 to do their nine hours and that is when we pay them the 20 per cent.

PN52

THE COMMISSIONER: You pay them for that time?

PN53

MR MOSCHINI: Because they are starting at 2 o'clock they get a 20 per cent allowance.

PN54

THE COMMISSIONER: Yes, all right. What if they work more than 50 hours in the week, the afternoon shiftworkers?

PN55

MR MOSCHINI: They get their 20 per cent and then they get their penalty rates on top of that, plus 20 per cent.

PN56

THE COMMISSIONER: Sorry. Let us divided their work into two categories, the first category being the first 50 hours of their work is the afternoon shift?

PN57

MR MOSCHINI: Yes.

PN58

THE COMMISSIONER: And any work that they might do in excess of 50 hours. Now, let me ask you first about the work that they might do in excess of 50 hours what would their rate of pay be for that?

PN59

MR MOSCHINI: As per the penalty rates at the back, plus 20 per cent.

PN60

THE COMMISSIONER: All right, thank you. Now, I need to know to understand how can I work out the application of the no disadvantage test to the 50 hour rate? Is anybody able to help me with that because I only really just got the hourly rates. Would it be possible to file a calculation?

PN61

MR MOSCHINI: Sure.

PN62

THE COMMISSIONER: All right. Now, Mr Moschini, are you telling me that if you calculated what people would get for 50 hours under the agreement and what they would get for 50 hours under the award, the agreement would be the same or better?

PN63

MR MOSCHINI: It is certainly better.

PN64

THE COMMISSIONER: It is better?

PN65

MR MOSCHINI: Yes.

PN66

THE COMMISSIONER: And you are capable of filing a calculation to demonstrate that with using the actual hours of work that you are currently working on a sample basis, not every employee, but just you know take a couple of grades or whatever it is.

PN67

MR MOSCHINI: Yes.

PN68

THE COMMISSIONER: Perhaps you could give me a grade 1 and a grade 3 example.

PN69

MR MOSCHINI: Yes, sir.

PN70

THE COMMISSIONER: And if you just showed me how that calculation works. I will extend the time for lodgment of this application subject to the filing of the appropriate calculations to demonstrate that the hours arrangements provided for by the agreement and in particular the rates of pay in conjunction therewith produce an outcome for the employees that does not disadvantage the employees. And in accordance with what Mr Moschini has informed me that it does advantage the employees, the only issue is the question of the weighing of the disadvantage of two days sick leave per annum against the monetary advantage which would arise, I assume, from the application of the agreement.

PN71

In the event that I am satisfied that the monetary advantage compensates for, or is greater than the loss of the two days sick leave entitlement when compared to the award, I would be inclined to certify the agreement and issue an order of certification accordingly. I will await the filing of the calculation and no further attendance at the Commission will be required in the event the calculations confirm our discussions. I will then issue an order of certification which will come into force on and from that date and remain in force for the life specified in the agreement. Thank you.

ADJOURNED INDEFINITELY [1.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATUTORY DECLARATION PREPARED BY B. MOSCHINI RE LATENESS OF APPLICATION PN6