AG2004/5592, Transcript of Proceedings [2004] AIRCTrans 3395 (30 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 2121
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5592

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transfield Services (Australia) Pty Limited
and Others for certification of the Transfield
Services Facilities Management and Maintenance
(South Australia) Certified Agreement 2004

ADELAIDE

9.30 AM, WEDNESDAY, 18 AUGUST 2004

PN1

MR M. McSWEENEY: I appear for Transfield Services.

PN2

MR A. PLANT: I appear for the Australian Manufacturing Workers SA.

PN3

MR D. BUCHANAN: I appear for the CEPU Plumbing Division.

PN4

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read the statutory declaration provided in this matter and the agreement. Mr McSweeney, relative to the process that was followed in the matter, are you able to advise me of the date upon which the final copy of the agreement was provided to employees?

PN5

MR McSWEENEY: Yes, I can, your Honour. The agreement was provided to employees - just looking at - it was - I don't have the exact date, your Honour, but I can certainly attest to the fact that it was certainly 14 days prior - 13, 14 clear working days prior to the vote actually occurring.

PN6

THE SENIOR DEPUTY PRESIDENT: You see, what is underpinning my question is that a Full Commission of the Commission has determined that, in effect, there must be 14 clear days, so that the agreement cannot be made before the 15th day after the document was provided to employees, so that when parties talk of 14 days, it generally prompts a question as to whether or not they can be a little more specific. Can you confirm to me that it was made not before the 15th day upon which the employees received the document?

PN7

MR McSWEENEY: Your Honour, I can confirm that and if your Honour so wishes I can provide detail to that effect.

PN8

THE SENIOR DEPUTY PRESIDENT: All right, that might be best. Can I take it you can provide that within the next two or three days, Mr McSweeney?

PN9

MR McSWEENEY: Yes, most certainly, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, because this hearing is being conducted by way of a video link, at the conclusion of the hearing my Associate will provide to you an email address so that that information can be sent in as expeditiously as possible. Mr McSweeney, I am going to ask you some questions about the agreement itself. Mr Plant and Mr Buchanan will be aware that my questions do not invite the parties to re-write the document in any way, they simply go to clarifying the intention of the parties relative to matters that I need to take into account. Can I take it that Mr Plant and Mr Buchanan have got copies of the agreement?

PN11

MR BUCHANAN: Yes, we have.

PN12

MR PLANT: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr McSweeney, can I refer you first of all to clause 1.2 of the agreement.

PN14

MR McSWEENEY: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: This is the clause "Application of agreement". It talks of the agreement being applicable to:

PN16

A facilities management and associated property maintenance activities by employees of Transfield on industrial and commercial properties in South Australia that are controlled by agencies of the Government of South Australia.

PN17

The statutory declaration is a little different from that. It specifically refers to:

PN18

Department of Administrative and Information Services Facilities Management, Northern Metropolitan Region Contract.

PN19

Now, should I understand that notwithstanding the statutory declaration, the parties intend the agreement to have that broader application which is referred to in clause 1.2?

PN20

MR McSWEENEY: That is correct, your Honour. The actual contract that we have with the Department of Administrative and Information Services currently is for the northern region. However, obviously the company needs to position itself that if other work was to arise, that we could legitimately bid for that work understanding that our employees could do that work.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. The provisions of clause 1.4.3 talk of, "Collective negotiations for a new agreement". Should I that that reflects the intention of the parties relative to matters covered by this agreement, but does not necessarily involve a binding commitment once a bargaining period or alternative arrangements following the conclusion of this agreement are put in place?

PN22

MR McSWEENEY: That is correct, your Honour. That is actually as evidenced by the CEPU Electrical Division's decision not to participate in the bargaining round that has occurred.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 1.7.3 talks of, "Individual working conditions agreements". Can you tell me how those arrangements apply and in particular confirm to me the extent to which it is intended they would be enforceable agreements, the extent to which they may or may not be considered by the parties to have a capacity to override provisions of this agreement and, depending on your answer, the extent to which I should have regard to them for the purposes of the no disadvantage test?

PN24

MR McSWEENEY: Your Honour, we don't regard them as enforceable or binding. We have a small contract. There are only 14 employees. Some of those employees from time to time request certain flexibilities with respect to working arrangements. At that point we will obviously look at the arrangements that have been requested and if so appropriate, we will agree with that employee to work those arrangements. The parties don't regard them as binding, more manageable, or overriding the terms of the agreement.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 2.1.7 deals with dispute settling procedure. If I ask you to look at 2.1.7.1(v)IV. This proposes that:

PN26

A matter not resolved between the parties and not resolved through a conciliation process involving the Commission would be referred to the Commission for resolution pursuant to the provisions of the Workplace Relations Act.

PN27

Should I understand that by this clause the parties intend to establish the jurisdiction for the Commission to arbitrate as a matter of last resort?

PN28

MR McSWEENEY: That is correct, your Honour, consistent with the Workplace Relations Act, clearly all we are outlining is that the initial request will be for conciliation and, with the opportunity for the parties to agree by consent, for arbitration to occur.

PN29

THE SENIOR DEPUTY PRESIDENT: Let me be clear in this regard. There are a suite of different arrangements that apply to different agreements and there are a great many arguments that occur over whether or not various agreements actually establish an unfettered right or jurisdiction for the Commission to arbitrate as a matter of last resort. Is it the case that if the conciliation process fails to resolve the dispute, the Commission can decide to arbitrate the matter, or is that arbitration dependent upon agreement between the parties to the effect that that arbitration should occur?

PN30

Perhaps before you answer my question, whilst I appreciate the difficulty associated with the video hearing of the matter, I need to stress there is no right answer, save and except that if Mr McSweeney answers in one way and the two union officials answer in a different way, it gives rise to a question about whether or not you have indeed got any dispute resolution procedure. So that if there is any doubt in your mind, Mr McSweeney, what I propose to do is to adjourn the matter for a minute or so to allow the parties to discuss a possible collective answer.

PN31

MR McSWEENEY: Your Honour, I think that would be appropriate at this stage.

PN32

THE SENIOR DEPUTY PRESIDENT: All right. I will adjourn the matter briefly on that basis. I will allow the video link to remain open and we will resume as soon as you have had your discussions.

SHORT ADJOURNMENT [9.40am]

RESUMED [9.43am]

PN33

THE SENIOR DEPUTY PRESIDENT: Mr McSweeney?

PN34

MR McSWEENEY: Thank you, your Honour. The parties have discussed the application of the dispute resolution procedure and they are in agreeance that the provision as outlined at IV in essence establishes that the Commission will be asked to conciliate on the matter, if the matter remains unresolved then the parties, by agreement, can seek for the Commission to consent to arbitrate on that matter.

PN35

THE SENIOR DEPUTY PRESIDENT: To consent arbitrate. I see. So that the parties are saying that if we can't resolve the matter by way of a conciliated outcome, then the parties agree the Commission should arbitrate the matter?

PN36

MR McSWEENEY: If the parties agree, yes.

PN37

THE SENIOR DEPUTY PRESIDENT: If the parties agree?

PN38

MR McSWEENEY: That is correct.

PN39

THE SENIOR DEPUTY PRESIDENT: Thank you. So presumably if one of the parties agreed and two did not agree, then there would be no power to arbitrate?

PN40

MR McSWEENEY: That is correct, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take the parties to clause 2.4.7.1 which details rates of pay for apprentices? This contains a table with rates of pay. It includes a paragraph underneath that table which indicates that those rates:

PN42

Include consideration of all work related allowances and all safety net adjustments and considerations of the Commission.

PN43

Notwithstanding those provisions, it appears that the rates of pay are expressed as a percentage of the level 4 rate. In the event, or as that level 4 rates changes in accordance with the provisions of the agreement, do the parties intend that the amounts payable to apprentices will be increased accordingly?

PN44

MR McSWEENEY: Most certainly, your Honour. That is currently as applies.

PN45

THE SENIOR DEPUTY PRESIDENT: That is not actually what the agreement says, but I would understand that to be the case. Clause 2.5.1.4 talks of, "Engagement of labour hire through agreed agencies". Given the provisions requiring agreement, are the parties able to give me, or is the employer able to give me an undertaking, that agencies will be agreed on the basis of factors which will not include issues associated with freedom of association?

PN46

MR McSWEENEY: That is correct, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: That is, can you advise me that an agency will not be denied the opportunity to undertake work simply because its employees may or may not be members of a particular union?

PN48

MR McSWEENEY: Yes, I can, your Honour. Certainly, the company has regard for the provisions of the Workplace Relations Act with respect to that matter.

PN49

THE SENIOR DEPUTY PRESIDENT: Clause 3.1.7 talks of the development of a training plan. Should I understand that will occur over the life of the agreement, or is there a more specific time frame that the parties intend to invoke?

PN50

MR McSWEENEY: That is an ongoing provision, your Honour, and it is actually specific to individual employees. There are some employees that have training plans currently in place. As a new employee, again, the committee would meet to discuss career path opportunities.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.2.2 talks of the company's, "Training matrix manual". Should I understand that manual is a documented manual that is readily available to employees and that it may be changed over the life of the agreement?

PN52

MR McSWEENEY: Yes, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Clause 4.1.4 talks of the, "ACTU Code of Conduct". Should I take it that the agreement to the use of that code of conduct is an agreement in the terms that that code of conduct might exist in and at any one point in time. That is, it would take into account the possibility of amendment of that code of conduct?

PN54

MR McSWEENEY: Yes, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McSweeney. Mr Plant, can I take it that you are in agreement with all of Mr McSweeney's responses to my questions?

PN56

MR PLANT: I am, Senior Deputy President. In specific terms, I concur with Mr McSweeney's submissions. I just make a point that 1.7.3, as you raised, is not in fact an invitation to create AWAs at Transfield. Apart from that, sir, our members have been consulted and agreed to the terms and conditions contained in the agreement. On that basis, we are seeking certification.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Buchanan, can I take it that you are also in agreement with Mr McSweeney's responses to my questions?

PN58

MR BUCHANAN: Yes, we are. Our members have agreed with it and we agree, yes.

PN59

THE SENIOR DEPUTY PRESIDENT: On the basis of the information provided to me I can confirm to the parties that I am satisfied that the agreement itself meets the requirements set out in sections 170LT and LU, such that it qualifies for certification. I would intend on that basis to certify the agreement from the date upon which I am provided with information that confirms that the process that was followed in reaching this agreement was consistent with section 170LJ of the Act. In that regard, I am entirely dependent upon information to be provided to me by Mr McSweeney.

PN60

In the event that that information was either not provided to me within the next three days, or alternatively, that it indicated a potential problem associated with section 170LJ, then the matter would be re-listed so that we can see whether we could resolve that problem. I am confident, however, that on the basis of the information provided to me I will be able to certify the agreement and accordingly, can advise the parties that if I do certify the agreement the certificate would be sent out shortly after I receive the information from Mr McSweeney.

PN61

That certificate would detail the various clauses about which I have sought clarification. It will not detail the responses, because those are recorded on the transcript. On the basis that I hope not to see the parties again until the next occasion when a replacement for this agreement is certified, I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [9.51am]