AG2004/2839, Transcript of Proceedings [2004] AIRCTrans 3075 (9 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 12633

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

AG2004/2839

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by the Permanent Trustee Company Limited
and Another for certification of the Trust
Company of Australia Limited Enterprise
Flexibility Agreement 2004

SYDNEY

11.40 AM, TUESDAY, 27 JULY 2004

PN1

MR W. SPANNER: I appear for the Trust Company of Australia Limited and Permanent Trustee Company. With me I have MS T. McSWEENEY, Human Resources Manager from Trust Company as well today.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you. Leave is granted, Mr Spanner.

PN3

MR SPANNER: Thank you. Your Honour, in respect of this matter, first of all thank you for having this application heard at short notice. We did request that and subject to your Honour's wishes, I propose to deal with these matters today as follows. Preferably the Commission deal with matter number 2004 - that's 2839 - first. That is the application to certify the Trust Company of Australia Limited Enterprise Flexibility Agreement.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, if you wish.

PN5

MR SPANNER: And the second then to look at the approval of the application to terminate the Permanent Trustee Company Limited Certified Agreement which is matter number 5685.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, I'm happy to proceed in that fashion. So we'll with the certification, 2839, first.

PN7

MR SPANNER: Thank you. To give your Honour a brief overview of the process that led to the making of the EBA, I will take you in a minute to the statutory declaration prepared by Mr Moldrich in support of the application but just to give you a bit of understanding, it was in late 2002 Trust Company and Permanent merged their businesses. Part of the company's strategy for bringing the businesses together and a program to align terms and conditions of employment for employees of each of the two merged companies. The starting point is in relation to the industrial coverage.

PN8

On the one hand, there was the Federal Trust Company Award of 2001 that covered the Trust employees and on the other hand, there was permanent staff whose employment was regulated by the Federal Trustee Industry Award '99, I think an award of your own, your Honour, and also Federal Certified Agreement which expired, nominal expiry date expired on 23 October 2003. In November 2003 the companies facilitated the Kreyshner Comprehensive Consultation process involving a committee of employees of Trust and Permanent and management representatives to involve employees in developing a new agreement to govern in minimum terms of conditions of employment throughout the merged companies.

PN9

And a consultation process took place between November 2003 and May of this year. The companies see significant benefits in operating under common conditions from a human resources management perspective and also from an operational perspective, and consider the Nulier phase a vital platform from which to manage its HR in the future. Taking you to the statutory declaration of Mr Moldrich, which is filed in relation to this matter, you will note your Honour, that in accordance with rule 49(2) a statutory declaration has been prepared on behalf of each employer Trust Company and Permanent.

PN10

In essence the statutory declarations are, however, in the same terms. In respect of part 1.2 of the statutory declaration, we submit that for the purposes of part VIB of the Act and the requirements for certification, the companies may be treated as one employer operating a single business and that would be pursuant to section 170LB(2)(a) and in the alternative in any event, section 170LB(2)(b) of the Act. Permanent is a wholly owned subsidiary of Trust Company and is a related body corporate to trust under the Corporations Act 2001. Details of the relevant announcements that have been made having its relatively detailed statutory declaration, your Honour, and details of the announcement in respect of the merger of an Australian Stock Exchange announcement have also been placed in Mr Moldrich's statutory declaration.

PN11

THE SENIOR DEPUTY PRESIDENT: Which is the underlying award, Mr Spanner?

PN12

MR SPANNER: The underlying award in respect to the trust is the Trust Company Award.

PN13

THE SENIOR DEPUTY PRESIDENT: Award 2001?

PN14

MR SPANNER: 2001, and the underlying award in respect of Permanent Employees is the Trustee Industry Award. For the purposes of simplification of this process, we have in fact measured it in relation to both awards for the purposes of a no disadvantage test.

PN15

THE SENIOR DEPUTY PRESIDENT: Right. What is this dispute resolution clause in the underlying award?

PN16

MR SPANNER: What is the dispute resolution - if you bear with me. There's a dispute resolution clause which has been provided in the Enterprise Agreement, which I'm sure your Honour - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, I've seen that. I'm just looking up the table. You would have it in the table.

PN18

MR SPANNER: Disputes resolution procedure, the Trust Company Award is set out in paragraph 21.

PN19

THE SENIOR DEPUTY PRESIDENT: So it's - on the table it's item 3A. The difference is set out in the summary of comparison of terms and conditions in the table.

PN20

MR SPANNER: Are you looking at annexure 5, your Honour?

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MR SPANNER: Yes. That's correct. It's item 3A, I think.

PN23

THE SENIOR DEPUTY PRESIDENT: Could you tell me whether or not the difference between both underlying awards and the dispute resolution clause in this matter, that is that it can only be resolved by consent - if that was explained to the employees and how. Do you have any material on that? I think that's a significant change.

PN24

MR SPANNER: Yes, I'm trying to see what your Honour is - just if I can understand the question.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, I'll just go and - we'll go off the record and I'll find it for you.

PN26

MR SPANNER: Thank you.

OFF THE RECORD [11.46am]

RESUMED [11.51am]

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Spanner?

PN28

MR SPANNER: Thank you.

PN29

THE SENIOR DEPUTY PRESIDENT: I did ask you about the dispute resolution clause. You've sought some instructions?

PN30

MR SPANNER: Yes, I sought some instruction. It's certainly our understanding that in respect of clause 10.6 of the Dispute Settlement procedure in the proposed EBA where reference is made that if the employer trust cannot agree on a mediator or mediation is unsuccessful, either one can ask the Commission to settle the dispute by conciliation or arbitration or that the - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Or that it is sent to the Commission for resolution.

PN32

MR SPANNER: Or can send to the Commission for resolution. Thank you, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. There is nothing in this matter that causes me any concern. I've read the statutory declarations and examined the tables provided as annexures and I'm satisfied that I should certify the agreement and I will do so from today's date.

PN34

MR SPANNER: Thank you, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Do you want me to now deal with 5685?

PN36

MR SPANNER: If you could call the remaining matter?

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. Consider it called.

ADJOURNED INDEFINITELY [11.52am]