AG2004/5318, Transcript of Proceedings [2004] AIRCTrans 3345 (26 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS

O/N 2097

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5318

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and
Allied Services Union of Australia-Plumbing
Division South Australian Divisional Branch
and another for certification of the WF Air
Pty Ltd Enterprise Agreement 2004-2005

ADELAIDE

10.04 AM, MONDAY, 16 AUGUST 2004

PN1

MR D. BUCHANAN: I appear for the CEPU Plumbing Division. To the right of me is NIGEL LEAN from the CEPU Plumbing.

PN2

MR R. COOKE: I appear for WF Air Proprietary Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read the statutory declarations and the agreement in this matter. I have but one question about the process that was followed in relation to the agreement. That goes to whether or not the parties can advise me of the date on which the employees received a copy of the agreement in its final form. Mr Buchanan, are you able to help me in that regard?

PN4

MR BUCHANAN: It was 14 days prior, 15 July.

PN5

THE SENIOR DEPUTY PRESIDENT: Do you happen to have an exact date, Mr Buchanan?

PN6

MR BUCHANAN: I am not sure, I think it was 15 July, 15 days before - - -

PN7

THE SENIOR DEPUTY PRESIDENT: The vote occurred on 15 July. The date upon which the employees received the final copy of the agreement I am seeking.

PN8

MR BUCHANAN: No, I don't have the exact date.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Cooke, are you able to help me in this regard?

PN10

MR COOKE: No, sorry.

PN11

MR BUCHANAN: I think it was - well, 14 days prior, it should be 1 July.

PN12

THE SENIOR DEPUTY PRESIDENT: You see, Mr Buchanan, what is behind my question is the Commission has determined, through a Full Bench decision last year, that the 14-day requirement set out in the Act in this respect needs to be 14 clear days. So in effect the vote needs to occur on the fifteenth day after the employees were provided with the agreement. So you will find where I deal with statutory declarations that indicate the employees were provided with a copy of the agreement in its final form 14 days before the vote, that generally prompts me to ask the question so that I can be satisfied that there were in fact those 14 clear days.

PN13

Now, if I gave you the opportunity to look back through your diary in the next couple of days, would that possibly determine an exact date?

PN14

MR BUCHANAN: Yes, it would.

PN15

THE SENIOR DEPUTY PRESIDENT: All right, thank you. You would be able to confirm that date to my office say, within the next 3 days? Is that possible?

PN16

MR BUCHANAN: Yes, sir.

PN17

THE SENIOR DEPUTY PRESIDENT: Now, Mr Buchanan, I am going to ask some questions about the agreement itself. Mr Cooke, have you got a copy of the agreement there?

PN18

MR COOKE: I have not got a copy of the agreement here.

PN19

THE SENIOR DEPUTY PRESIDENT: I will loan you a copy from my file. I am working from the premise you have got a copy, Mr Buchanan?

PN20

MR BUCHANAN: Yes, I have.

PN21

THE SENIOR DEPUTY PRESIDENT: Now, my questions do not invite either party to rewrite the document that was agreed upon by the employees. They simply go towards clarifying the intention of the parties and addressing a number of matters that I need to have regard to in considering the application. Can I take you first of all to clause 7, which is the increases to wages and allowances. With respect to 7.1, the agreement appears to provide for the wage increase to come into operation with effect from an earlier date rather than the date of certification of the agreement.

PN22

Is that earlier date the date upon which the employees reached agreement with the employer so as to endorse the agreement or is it the date, 30 September 2003, which appears to reflect the provisions in appendix 4?

PN23

MR LEAN: Can I answer that one?

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Lean, I don't mind who answers it. I am probably more concerned that you both have a consistent answer.

PN25

MR LEAN: The employees have been paid since then on the rate of pay. In the EBA, 7.1, from certification, probably we should have altered the wording on that, the employees have been paid that rate of pay since September 2003.

PN26

THE SENIOR DEPUTY PRESIDENT: 7.2 establishes, presumably, from 30 September 2004 new rates of pay, and allowances for all employees will be the rates of pay and allowances shown in table 2, appendix 4. Now, should I understand that those allowances set out in table 2, appendix 4, are the only allowances that are applicable in terms of this agreement?

PN27

MR BUCHANAN: Yes, that is correct.

PN28

THE SENIOR DEPUTY PRESIDENT: Clause 11 deals with additional conditions. With respect to 11.1, should I understand for the duration of this agreement the superannuation contribution will be 10 per cent?

PN29

MR BUCHANAN: Yes, that is correct.

PN30

THE SENIOR DEPUTY PRESIDENT: 11.5 talks about the MBA rate, should I understand that reflects what is colloquially called the BIRST agreement arrangement?

PN31

MR BUCHANAN: Yes, that is right, under MBA, yes.

PN32

THE SENIOR DEPUTY PRESIDENT: So if that BIRST agreement were to be renegotiated then the parties would understand the rates set out in it may change over the life of this agreement?

PN33

MR BUCHANAN: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: With respect to 11.6, notwithstanding your earlier answer to my question about allowances, should I understand there where there are allowances set out in clauses 11 and 12 of the award, as distinct from the agreement, those allowances may also apply in addition to the wage rates set out in this agreement?

PN35

MR BUCHANAN: Yes, that's correct.

PN36

THE SENIOR DEPUTY PRESIDENT: Clause 12 deals with inclement weather. It references appendix 3. Is that appendix a document that is readily available to all employees wherever they may be working under this agreement?

PN37

MR BUCHANAN: Is that 12.3 you are looking at?

PN38

THE SENIOR DEPUTY PRESIDENT: I am looking at clause 12. I am looking at the third paragraph that references appendix 3.

PN39

MR BUCHANAN: Yes.

PN40

MR LEAN: If I could speak, Commissioner, it is 30 kilometre radius of Adelaide. It is taken out in the BIRST agreement for hot weather.

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Lean, the question I am looking to establish is what information is made available to employees, so that wherever they are working they are aware of the hot weather or inclement weather procedure.

PN42

MR LEAN: They would because every employee would receive a copy of this document and that clause with it.

PN43

THE SENIOR DEPUTY PRESIDENT: I see. Clause 13 deals with skills development program. Should I understand that will occur or be developed over the life of this agreement?

PN44

MR BUCHANAN: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Clause 15 talks about self-directed work teams having application. There are five employees, as I understand it, covered by this agreement.

PN46

MR BUCHANAN: That is correct.

PN47

THE SENIOR DEPUTY PRESIDENT: Is it intended that they work as part of self-directed work teams or is that clause inserted as a safeguard in the event that an increased number of employees were to be engaged during the life of this agreement?

PN48

MR BUCHANAN: Yes, that is correct, the latter.

PN49

THE SENIOR DEPUTY PRESIDENT: So it is not intended that that clause be applied in terms of day-to-day work whilst there are five employees?

PN50

MR BUCHANAN: No.

PN51

THE SENIOR DEPUTY PRESIDENT: Clause 24 deals with supplementary labour. Should I understand if employees are placed with another company then they would remain employed by WF Air?

PN52

MR BUCHANAN: Yes, that's right, that's correct.

PN53

THE SENIOR DEPUTY PRESIDENT: Clause 29 deals with income protection. It might be that Mr Cooke needs to assist in this regard, but can the parties advise me of the nature and duration of that insurance cover?

PN54

MR LEAN: Could I answer that?

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lean.

PN56

MR LEAN: The nature of the cover is for 24 hours, covering workers outside work when WorkCover would not cover them. It is 14 days - - -

PN57

THE SENIOR DEPUTY PRESIDENT: 14-day waiting period.

PN58

MR LEAN: Waiting period, before there is any claim made and all claims have to go through a claims agent and a worker can have up to 104 weeks off and I think the premium rate is about 1.3 per cent and it covers 100 per cent of the wages.

PN59

THE SENIOR DEPUTY PRESIDENT: 100 per cent of wages.

PN60

MR LEAN: That's correct.

PN61

THE SENIOR DEPUTY PRESIDENT: Now, a final question, which might appear to be a curious one, perhaps best directed to Mr Cooke. Mr Cooke, while an employee was absent and covered by that income protection insurance, should I understand the employer would still intend to make payments by way of premium payment to the insurance company?

PN62

MR COOKE: I would suggest yes. Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: I ask the question because of the potential for disputation in the event that payments to an injured worker are stopped because the employer stops making payments to the insurer.

PN64

MR LEAN: This is in relation to the possible sister organisation claim that is before you?

PN65

THE SENIOR DEPUTY PRESIDENT: Mr Lean, I have had a couple of instances of problems associated with income protection insurance. The provisions of clause 31 deal with a picnic day. Should I understand, provided the employee is able to demonstrate attendance at that picnic day, there is no requirement that they necessarily be a member of the union so as to attract payment for that day?

PN66

MR BUCHANAN: All they have to do is get a ticket and that is it.

PN67

THE SENIOR DEPUTY PRESIDENT: If I could take you to appendix 1, which is the grievance or dispute settlement procedures, Mr Buchanan, or Mr Cooke - it might be best if I address this to Mr Cooke - can you advise me that employees who may not be a member of the CEPU, or indeed of any union, have the right to be represented by a union or a representative of their choice in these instances?

PN68

MR COOKE: I would suggest yes.

PN69

THE SENIOR DEPUTY PRESIDENT: Now, Mr Cooke, whilst you are on your feet, are there any of Mr Buchanan's or Mr Lean's responses that you want to clarify or can I take it that you are in agreement with all of them?

PN70

MR COOKE: I am in agreement with all of them.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I am satisfied the agreement itself meets the requirements that are set out in sections 170LT and LU so as to qualify for certification. In the event that I am advised over the next 3 days of the date upon which employees received the agreement in its final form, such that I can be satisfied the requirements of section 170LJ have been met, I would propose to certify the agreement from that date.

PN72

If I wasn't advised within those 3 days, or indeed if the advice given to me raised continuing concerns over the effect to which section 170LJ has been met, then I would intend to reconvene this hearing so as to clarify that issue. I might comment that one of the ways of potentially overcoming that problem associated with that very clear Full Bench decision, relative to the 14-day descriptor, has been for me to allow the parties to have another vote, provided the agreement is not changed. So a failure to meet that 14-day limit does not necessarily doom the agreement.

PN73

It may not be necessary for the parties to consider that but if it is necessary it might be a matter that the parties want to take on board. Are you happy with that approach, Mr Buchanan?

PN74

MR BUCHANAN: Yes, I am.

PN75

THE SENIOR DEPUTY PRESIDENT: Mr Cooke?

PN76

MR COOKE: Yes, I am.

PN77

THE SENIOR DEPUTY PRESIDENT: In the event that I do certify the agreement, the certificate would be sent out to the parties shortly after that date. That certificate will identify the various clauses about which I have sought clarification. It will not detail the responses that I have been given as those are recorded on the transcript. On the premise that I hope to be able to certify the agreement, I wish the parties well in reaching this agreement and hope that it benefits both the employer and the employee. I will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [10.20am]