AG2003/10723, Transcript of Proceedings [2004] AIRCTrans 330 (23 January 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 2118

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/10723

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LJ of the Act
by Queensland Cement Ltd and Maritime Union
of Australia for certification of the
Cementco Shipping - MUA Agreement 2002

BRISBANE

2.00 PM, WEDNESDAY, 14 JANUARY 2004

PN1

THE COMMISSIONER: Good afternoon, everyone. Please take a seat. Perhaps if I could take some appearances.

PN2

MR I. TAIT: I appear for Queensland Cement Limited in the matter of 10723 of 2003.

PN3

MR D. PERRY: I seek to appear for the Maritime Union of Australia in the matter regarding the Cementco Shipping Enterprise Agreement, and also there is another three to follow. Are we going to do all these in succession?

PN4

THE COMMISSIONER: Well, we will do this one first, then we will deal with the other three. I presume I've got the one employer for all the other ones as well?

PN5

MR PERRY: Yes.

PN6

THE COMMISSIONER: So we will manage those other three, I think it is, isn't it?

PN7

MR PERRY: Okay. Thank you, Commissioner.

PN8

THE COMMISSIONER: Yes. Mr Tait.

PN9

MR TAIT: Thank you, Commissioner. Queensland Cement Limited trades as Cementco Shipping, which is the name on our agreement. Discussions have been ongoing for some long time with the union, and the terms now agreed are in the document that we have submitted, and details of the processes that we used are covered in the affidavits, and I won't repeat those, unless the Commission particularly requires me to do so.

PN10

THE COMMISSIONER: No. There is only one issue in the affidavit that is of interest to me, Mr Perry. I presume it is just a minor typographical error, and that is in your affidavit, and that is at paragraph 7.7 in relation to the nominal expiry date. I presume the nominal expiry date is 30 September 2005 as per clause 4 of the agreement.

PN11

MR PERRY: That would be the intention, Commissioner, yes.

PN12

MR TAIT: Yes, Commissioner, yes.

PN13

THE COMMISSIONER: Yes, that's right. Yes, it is. Okay. So we will have no regard to that matter in the affidavit then.

PN14

MR TAIT: The parties have also agreed to the reduction of one berth, and I'm advised that two redundancies have been paid as a consequence of that agreement now coming into place. Commissioner, there is a matter in relation to clause 13 of the agreement, which is a return-to-work program, and it makes reference to a Schedule A, and also in the agreement document, above the signatures on page 11, there is mention of it, and if I might, I would like to submit a document to the Commission, which Mr Perry already has, and this is the Schedule A that we had to tidy up, and I would ask the Commission to accept that document as part of the agreement and to replace the words in the document that we submitted, the words on page 11 immediately above the signatures with that schedule. It is a previous industry arrangement, and we had to make some minor changes to make it specific to Cementco Shipping as the employer.

PN15

THE COMMISSIONER: I am just trying to come back to what were the documents on which the ballot took place. What was the agreement that was made, and what was the agreement that was approved by the employees? Now, I presume, from what is said at the top of page 11, that is what was in front of them when they approved it.

PN16

MR TAIT: I believe it was, Commissioner.

PN17

THE COMMISSIONER: This is the agreement as made and as approved, isn't it, and they approved that set of words.

PN18

MR TAIT: Well, my understanding is that the approval was that the seafarers' rehabilitation arrangements, which the industry had previously, would be incorporated into the agreement, and that what was agreed was that that would be done with some minor alterations to make it specific to Cementco Shipping. So my understanding is that it was put to the employees and that they did accept it.

PN19

MR PERRY: If the Commission may - on 26 November, we conducted a further vote of the membership, because this enterprise agreement, as Mr Tait had explained, had been going for a considerable period of time, the negotiations.

PN20

THE COMMISSIONER: I take it that is the case from the date of operation.

PN21

MR PERRY: That's correct, yes, and we were aware of the 21-day period that the Commission requires to accept the application, and so what we attempted to do - on 26 November, we re-ran all the things back through the membership on the ship, and done that via phone, and they had a copy of the industry return-to-work program. These things all happened when we were part of - this is before company employment come into play in '98, and they - and it was just a roll-over measure, and that's why it was included in this enterprise agreement with the wording. I think in the draft document that you have that it made reference to this clause, instead of this clause in toto, as written, and that was a concern of us - of ours - that we have it in there more specific to what it means. But certainly the membership - - -

PN22

THE COMMISSIONER: All that is in my mind, just to clear it up, is whether this document is a part of the agreement or whether it is a document to which the agreement is referable - or the agreement is referable to this document. Do you see what I mean? They are different things.

PN23

MR TAIT: It is a part of the agreement. What we agreed with the union was that we would include this as a schedule to the agreement and make reference to it in the body of the agreement, which we have done at clause 13, I think it is.

PN24

THE COMMISSIONER: See, I'm not too sure it is part of the agreement. I am of the view that - my personal view is that you are bound by it by purposes of the reference in the agreement to this document. Do you see what I mean?

PN25

MR TAIT: Oh, I see what you mean, Commissioner.

PN26

THE COMMISSIONER: You see what I mean?

PN27

MR TAIT: Yes.

PN28

THE COMMISSIONER: This agreement refers to this document, and for purposes of return-to-work programs, your obligation resides in this document, because this agreement refers to it, but I am not of the view that this document is a part of this agreement per se, that it's a schedule to it, because it wasn't the document that was voted upon. What was voted upon was this document with those words. Do you understand what I mean?

PN29

MR TAIT: Yes, I see where the Commissioner is going. I suppose - - -

PN30

THE COMMISSIONER: If there is an issue - if the parties have got a problem with that interpretation, I can give you some time to put some submissions to me on it, if you like, but I will just take your advice on that if you want to - - -

PN31

MR TAIT: I suppose the position that I'm coming from - we've made a commitment to the union to apply this schedule, the terms that are in the schedule, and we will commit to that, and we are committed to it. I guess whether it forms part of the agreement or not or it is simply that the agreement refers to the document - - -

PN32

THE COMMISSIONER: Well, yes, it is a technical issue. You are bound to it.

PN33

MR TAIT: We're bound to it.

PN34

THE COMMISSIONER: It is just a question of how are you bound to it. Are you bound to it as a part of the agreement, or are you bound to it by virtue of the fact that the agreement refers to it? Either way, you are bound by it.

PN35

MR TAIT: Yes.

PN36

THE COMMISSIONER: It is just a technical issue about whether it is in here or whether it is out here and the agreement refers you to it. Either way, in my view, you are bound by it.

PN37

MR TAIT: Well, that is the view that - - -

PN38

THE COMMISSIONER: See, my problem is that the Commission doesn't have any powers to include in the agreement a document that was not in the agreement and that was part of the making and approving process. It is quite - you know, the phrase you have got there refers to this document - - -

PN39

MR TAIT: Yes.

PN40

THE COMMISSIONER: - - - but it is not a necessary part of the agreement itself, and I've got no capacity to incorporate this additional document in the agreement, because it is, essentially, a sealed exercise. So I am of the view that, yes, you still have an obligation, and it is an obligation to observe this document, and it arises because this document is referred to via this agreement.

PN41

MR TAIT: Yes.

PN42

THE COMMISSIONER: It is just that they aren't part of a single integrated agreement. Now, it depends whether you want to ..... me on that or you will be happy to live with that or - - -

PN43

MR PERRY: Commissioner, our members are certainly aware that when it was decided by national office that we needed to, I guess, strengthen that clause up in regards to the return-to-work program, we ran through the matters with our membership, and it was a heavily debated issue when this arose in the industry originally, and people are pretty well aware of it now, and I guess there was no negative reaction. You know, that was via the phone calls, but, I guess, as long as this is applicable, I guess it's neither here nor there if it's in the agreement.

PN44

THE COMMISSIONER: Well, you've got a heading, Schedule A, and it refers to return-to-work in Schedule A. This, in effect, is your Schedule A, that heading is your Schedule A, and your Schedule A states that the obligation under Schedule A is the memorandum of understanding of November '96, which is going to be touched up, and this is it.

PN45

MR TAIT: Yes.

PN46

THE COMMISSIONER: And that is an agreed document between the both of you, isn't it?

PN47

MR TAIT: Yes.

PN48

THE COMMISSIONER: So you have got your obligation via a reference to what Schedule A says, and that is Schedule A with that heading, in my view.

PN49

MR TAIT: Yes.

PN50

THE COMMISSIONER: So I don't know whether you want to - if it causes you any difficulties, that interpretation or not.

PN51

MR TAIT: Well, from the company's point of view, we have made a commitment which we are bound to, and which we will keep. It is a technical issue as to whether - - -

PN52

THE COMMISSIONER: Oh, it is. I agree.

PN53

MR TAIT: - - - it becomes a part of the agreement for the purposes of the Commission or not, but as far as the union and company are concerned, we will treat it as part of the agreement, and I would leave it to the Commission to determine just which way the Commission wants to deal with that.

PN54

THE COMMISSIONER: I think my view is that I couldn't claim it to be a part of the agreement, but I can quite clearly say that this is a document that is tendered and to which Schedule A of the agreement as made and approved refers.

PN55

MR TAIT: If that satisfies the union, it certainly satisfies the company.

PN56

THE COMMISSIONER: Well, I think for transcript purposes as well, you have made a statement that, in your view, this document that I have before me, which I will mark as - I will mark it as, "Retyped MOU of 1996; refer Schedule A of agreement." Now, that is the document you will observe for purposes of - this is an undertaking that you will be providing me, then. You are entering an undertaking, Mr Tait, that this is the document to which Schedule A refers and from which you will derive your obligations in respect of Schedule A.

PN57

MR TAIT: Yes, Commissioner, we have no problem doing that.

PN58

THE COMMISSIONER: Is that accepted by Mr Perry from the MUA?

PN59

MR PERRY: Yes, Commissioner. Our commitment is to the return-to-work program and the rehabilitation of injured workers, so if the Commission is satisfied that it is okay to be a schedule in the way you have explained it, that is fine by us.

PN60

THE COMMISSIONER: Well, the transcript will remain on file. If the matter ever falls into dispute and if you two disappear off the scene and others come in wondering what the obligations are, then they are clear on the transcript as agreed to by the parties. So that said, we can move on past that issue, I think.

PN61

MR PERRY: Thank you, Commissioner.

PN62

THE COMMISSIONER: Mr Tait?

PN63

MR TAIT: I think if we have dealt with that, Commissioner, there is probably little else that I have to say. I believe we have met the requirements of the Act and of the Commission, and I would ask that our agreement be approved operative from today. I probably should also say that we have made a retrospective payment to the workforce as we committed to do, but I would ask that the agreement be approved operative from today, may it please the Commission.

PN64

THE COMMISSIONER: Good, thanks. Have you got anything else to add at all, Mr Perry?

PN65

MR PERRY: No, Commissioner. We support the company's position on the operative date.

PN66

THE COMMISSIONER: Good, thank you. For the Commission purposes, of course, certification proceeds from the date of certification. I presume the agreement has been operating since - has it been operating since October 2002?

PN67

MR TAIT: I'm not sure that I could say that with certainty, Commissioner, but it has certainly been operating to our satisfaction, shall we say, and we are satisfied that - and we have made the payments retrospective.

PN68

THE COMMISSIONER: That is all right. They are matters for yourself, not for the Commission's certification procedures. The issue then is that if I was to approve the agreement today, it would be certified as of today's date to operate for a period pursuant to clause 4 through to 30 September 2005. Is that what the parties understand?

PN69

MR TAIT: Yes, Commissioner.

PN70

THE COMMISSIONER: Okay, then. Look, on the basis of what has been put before me today, my understanding of the agreement, the statutory declarations, and what has been put to me by Mr Tait and Mr Perry today, I am satisfied that the agreement meets the requirements of the Act and also meets and satisfies the Rules of the Commission, and I will certify the agreement effective as of today's date to operate on its own terms until 30 September 2005. Anything else?

PN71

MR TAIT: No, Commissioner.

PN72

MR PERRY: Thank you, Commissioner.

PN73

THE COMMISSIONER: Great. Thank you very much. We are adjourned.

ADJOURNED INDEFINITELY [2.15pm]