AG2004/2951, Transcript of Proceedings [2004] AIRCTrans 2133 (8 June 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

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

O/N 1793
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/2951

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Kone Elevators Pty Limited and Another
for certification of the Kone Elevators Pty
Limited and CEPU South Australian Installation
and Service Enterprise Agreement 2003-2006

ADELAIDE

9.15 AM, THURSDAY, 27 MAY 2004

PN1

MR D. METCALF: Appearing for the company and appearing with me is MR G. KATTE.

PN2

MR J. WILDER: Appearing on behalf of the CEPU Electrical Division.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Metcalf, I can advise that I've read both the agreement and the statutory declarations and the only question I have relative to the process goes to the steps taken by the employer to ensure access to the agreement, in writing, was the actual agreement given to employees?

PN4

MR METCALF: Excuse me, sir. Yes, sir, every employee received a copy of the agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Are you able to tell me the day upon which that occurred?

PN6

MR METCALF: 21 April.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN8

MR METCALF: Sorry, sir, 21 April, it was submitted to all the employees.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Metcalf, beyond that I have no questions about the process followed unless there is something extra you want to tell me?

PN10

MR METCALF: No, sir.

PN11

THE SENIOR DEPUTY PRESIDENT: I do have some questions about the agreement. You would be aware that my questions don't invite the parties to redraft the document. They do go to clarifying issues that I would rather clarify now and to addressing a number of the issues that I'm obliged to consider in terms of the Act. Can I assume, Mr Wilder, that you have got a copy of the agreement?

PN12

MR WILDER: Yes, I have this time.

PN13

THE SENIOR DEPUTY PRESIDENT: You do. Mr Metcalf, can I take you to clause 1.2 - rather than a question this is more of an observation - this clause concludes with the observation that this agreement is a common law agreement. It may well be incorporated in a common law contract but the agreement is a creature of statute and the certification of it today, if that occurs, does not convert it to anything other than a creature of statute. Clause 5, first of all am I correct in understanding that I should read clause 5 in concert with clause 38 of the agreement?

PN14

MR METCALF: Yes, that is correct, Senior Deputy President.

PN15

THE SENIOR DEPUTY PRESIDENT: Secondly, how should I understand the provisions of 5.1(a)(ii) in terms of the abolition of that bonus arrangement?

PN16

MR METCALF: Excuse me, sir.

PN17

MR KATTE: Commissioner, currently the corporation has a bonus scheme where they give a bonus applicable to the achievement of certain key performance indicators. The agreement we have with the employees is that that bonus would continue until the end of this year and then say in next year wouldn't happen any longer but there would be a conversion of that bonus to a salary increase in the form of a 2-1/2 per cent pay increase as of 1 January '05.

PN18

THE SENIOR DEPUTY PRESIDENT: I see and that is built in to the table in clause 38?

PN19

MR KATTE: Yes, sir, that is correct.

PN20

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Thirdly, in relation to clause 5, am I correct in understanding 5.3 such that the parties intend that they would have regard to the award rates of pay only if that award rate of pay exceeds the rates set out in clause 38?

PN21

MR METCALF: Yes, that is correct, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Clause 7.1 am I to understand that the reference in that first paragraph to more than 50 per cent of the sites on a 36-hour week is a reference to 50 per cent of a South Australian employees or is it 50 per cent of employees who might be working anywhere in Australia?

PN23

MR METCALF: That is for South Australia, Senior Deputy President.

PN24

THE SENIOR DEPUTY PRESIDENT: If I look at the second paragraph which talks of the point 8 of an hour accrual arrangement for the 36-hour week, am I correct in understanding that point 4 of any hour relates to the 38-hour week and the other .4 relates to the 36-hour week?

PN25

MR METCALF: Yes, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, if I can then take you to clause 8.2 this appears to me to be a clause that, if you like, water-marks the award, as at 30 December 2002, particularly if I read it in concert with 8.3, is that the intention?

PN27

MR METCALF: Excuse me, sir. Sir, it is my understanding that that is when amendments occurred to the actual MECA award hence that was basically carried on from the previous agreement.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, but does the employer intend to apply this agreement in conjunction with the MECA award as it might exist today and throughout the life of this agreement or is it the intention of the parties that this agreement be read only in concert with the MECA award as it stood at 30 December 2002?

PN29

MR METCALF: Excuse me, sir. As the changes occurs, sir.

PN30

THE SENIOR DEPUTY PRESIDENT: I see, thank you. I must say that is more consistent with recognition of a wage rates that might change in the award I thought it appropriate to clarify that.

PN31

MR METCALF: Yes, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: Because it is not quite the same as the expression incorporated in that clause. Clause 10 is the dispute settlement procedure with particular reference to 10(b). Am I to understand that if an employee is not a member of the CEPU or indeed of any union they have the capacity to be represented by a person or an organisation of their choice?

PN33

MR METCALF: That is correct, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: With reference 10(d) which envisages that an unresolved matter might be referred to the Commission, is it the expectation of the parties that the Commission would first of all try to resolve any such dispute by way of conciliation with arbitration as the last resort?

PN35

MR METCALF: That is correct, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 13 details hours of work. In that regard I need to say that I'm having a little difficulty reconciling a number of clauses with the 36-hour week detailed in clause 7. The first such question arises where in relation to clause 13.1 which appears to talk of a 36-hour week from 1 January 2006 for a category of employee called NEB and 1 August 2006 for SEB. So there are two questions. First of all I don't know what NEB and SEB refer to. Secondly, I must say, I'm having difficulty reconciling that information about the implementation of the 36-hour week with the information relative to the implementation of the 36-hour week in clause 7.1.

PN37

MR METCALF: Excuse me, sir.

PN38

MR KATTE: If I may explain that, there are two separate businesses within the organisation. One is the new elevator business which is involving construction work - - -

PN39

THE SENIOR DEPUTY PRESIDENT: I see that is NEB, is it?

PN40

MR KATTE: That is NEB and then there is the service elevator business which is SEB. The 36-hour week commencement as regarded at 7.1 is about construction work with the installation business and the intention of that is that it would be applicable as at 1 January 2006 unless some time before that if the industry moves forward and more than 50 per cent of the construction sites within South Australian that we are working on are working as a customer practice 36-hour week then we would actually bring it forward to that point in time. The service elevator business would be conducted at a later time which would be 1 August and the hours of work as detailed in 13.1 is actually referring back to the 36-hour week clause of 7.2.

PN41

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 13.4 references the SARCC, how should I understand that reference?

PN42

MR METCALF: Sir, that is the South Australian Regional Consultative Committee.

PN43

THE SENIOR DEPUTY PRESIDENT: I see and is that a committee established under this agreement or is it a committee that exists by virtue of some other foundation?

PN44

MR METCALF: It is a committee that was formed when the first enterprise bargaining agreement came about and we have continued with that committee which is always referenced within the document.

PN45

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 15 relates to quality. Am I to understand that the company's quality policy is a documented policy that it is available to employees and that it may be changed during the life of this agreement?

PN46

MR METCALF: That is correct, sir.

PN47

THE SENIOR DEPUTY PRESIDENT: I note that clause 15 continues to talk about various programs, is it the expectation of the parties that those programs will be put in place during the life of this agreement?

PN48

MR METCALF: Excuse me, sir. I'm informed, Senior Deputy President, that is an ongoing process, so they are currently running and they will be.

PN49

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 16 talks of the company's occupational health and safety policy and again should I understand that to be a documented policy readily available to employees and subject to change?

PN50

MR METCALF: Yes, sir.

PN51

THE SENIOR DEPUTY PRESIDENT: Clause 18 references the Regional Consultative Committee which I think is the body to which I've already been directed. The question I have there is whether or not employees have available to them the opportunity to participate on that committee irrespective of union membership?

PN52

MR METCALF: Yes, that is correct, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: Clause 19 talks of a death and disability cover. To what extent do employees have available to them information relative to the amount of that death and disability cover and arrangements relating to it? I understand the cover operates for a period of up to 1 year but is there information available for employees that goes to the level of payments that might be made during that period?

PN54

MR METCALF: Excuse me, sir. Yes, that information is available to them, sir.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 24, in fact the last line on page 13 talks of:

PN56

...the continuation of existing arrangements in relation to compensation and extended sick-leave.

PN57

Are those existing arrangements documented?

PN58

MR METCALF: Yes, sir.

PN59

THE SENIOR DEPUTY PRESIDENT: Clause 25 relates to contract labour. Is this clause referring to employees that would be employees of Kone? Have I pronounced it correctly, it is Kone?

PN60

MR METCALF: It is Kone.

PN61

THE SENIOR DEPUTY PRESIDENT: Kone. Is this clause referring to direct hire Kone employees?

PN62

MR METCALF: This is for contractors, sir.

PN63

THE SENIOR DEPUTY PRESIDENT: So am I correct in understanding that notwithstanding the provisions of this clause the clause does not impose obligations - - -

PN64

MR METCALF: That is correct.

PN65

THE SENIOR DEPUTY PRESIDENT: - - - on employers other than Kone?

PN66

MR METCALF: That is correct, sir.

PN67

THE SENIOR DEPUTY PRESIDENT: Clause 26 relates to the formulation of an agreed policy in relation to staffing arrangements, is that a function that is going to occur during the life of the agreement?

PN68

MR METCALF: There is agreed staffing - monitoring now, sir, and that will be - - -

PN69

THE SENIOR DEPUTY PRESIDENT: So it is an ongoing function?

PN70

MR METCALF: That is correct.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 33 relates to the annualised wage. It talks of mutually agreed representatives on behalf of the employee and management and again am I to understand that if an employee or employees are not members of the union is there the capacity for them to identify a representative?

PN72

MR METCALF: Yes, Senior Deputy President.

PN73

THE SENIOR DEPUTY PRESIDENT: Clause 36 talks of the payment of an allowance of $1.20 per hour where project site duration is greater than 6 weeks, does that mean that $1.20 per hour is, if a project is known to be of more than 6-weeks duration, paid for the duration for the project or does the allowance begin to operate of a 6-week period?

PN74

MR METCALF: Excuse me, sir.

PN75

MR KATTE: If the project is scheduled to run for a period of 6 weeks that allowance will be paid from day one. If in fact we did something quicker and we finished it in 5 weeks that allowance would still be paid. So it is based on the planned project duration as soon as anything is going to be 6 weeks or more they will get that payment right from day one.

PN76

THE SENIOR DEPUTY PRESIDENT: Is there the possibility that a project that was anticipated to run for say 5 weeks - - -

PN77

MR KATTE: Yes.

PN78

THE SENIOR DEPUTY PRESIDENT: - - - might in fact take 7?

PN79

MR KATTE: If that did happen then this arrangement wouldn't apply.

PN80

THE SENIOR DEPUTY PRESIDENT: I see, thank you. A final question in relation to clause 37. Am I correct in understanding then that on the basis of that clause that if there is a project agreement which is specific to a given project and obligates Kone to comply with that agreement and establishes a site allowance which is higher than this particular site allowance, then the higher site allowance would be paid but otherwise the conditions of this particular would continue to apply?

PN81

MR METCALF: Yes, that is correct sir.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Metcalf. Mr Wilder.

PN83

MR WILDER: Yes, sir.

PN84

THE SENIOR DEPUTY PRESIDENT: Are you in a position to agreement with Mr Metcalf's responses to me?

PN85

MR WILDER: Yes, sir, I concur with the employer.

PN86

THE SENIOR DEPUTY PRESIDENT: You have done well, thank you. On the basis of the information provided to me in the statutory declarations together with the information to me this morning I'm satisfied the agreement was reached through a process consistent with that set out in section 170LJ of the Act. I similarly satisfied that the agreement meets the requirements necessary for certification, it is of a duration envisaged by the Act, it contains the necessary resolution provisions, the operation of which the parties have clarified this morning. It does not contain provisions which are contrary to the Act and it meets the requirements of the no disadvantage test.

PN87

I will certify the agreement with effect from today. That certificate will be forwarded out to the parties within the next few days. It will identify the varies clauses about which I have sought clarification. It will not detail the answers that I've been given because those are recorded on the transcript if it is necessary to have regard to them. I congratulate the parties on reaching this agreement and hope it operates to benefit the employer and the employees, I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [9.35am]