AG2004/4425, Transcript of Proceedings [2004] AIRCTrans 3491 (2 September 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 2151
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4425

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Electrolux Home Products Pty Ltd and Another
for certification of the Electrolux Home
Products Appliance Motors Plant Enterprise
Agreement 2004

ADELAIDE

12.25 PM, TUESDAY, 24 AUGUST 2004

PN1

MR D. METCALF: I appear for the company and appearing with me is MS K. HENNIG.

PN2

MR J. BRAITHWAITE: I appear on behalf of the Australian Workers' Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Metcalf and Mr Braithwaite, I've read the agreement and the statutory declarations. The agreement appears to be somewhat out of time in terms of the time limit set in section 170LM of the Act. Are you able to provide me with the background for this delay and information relative to the make up of the workforce over that period in question?

PN4

MR METCALF: Sir, I'm instructed that during that period it was out of date due to signatory problems in obtaining those from both parties and the workforce did not alter, only a reduction in the workforce during that period do to some redundancies.

PN5

THE SENIOR DEPUTY PRESIDENT: I see. What number, in broad terms, of redundancies occurred over that period of time? You see, what I'm wanting to establish, Mr Metcalf, is the extent to which the change in the make up of the workforce could conceivably have resulted in a different outcome in the matter.

PN6

MR METCALF: Sure. Excuse me, sir. Sorry, sir, I will just clarify that, but at the time of filing there was no redundancies, that actually occurred after the filing of the agreement itself.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Are you in a position to tell me how many redundancies have occurred?

PN8

MS HENNIG: It is 14.

PN9

MR METCALF: Fourteen, sir.

PN10

THE SENIOR DEPUTY PRESIDENT: Fourteen. By what mechanism did the vote on 8 July occur, was that a secret ballot - - -

PN11

MS HENNIG: A secret ballot.

PN12

MR METCALF: Secret ballot, sir.

PN13

THE SENIOR DEPUTY PRESIDENT: Are you in a position to tell me the numbers of persons in favour of the agreement, as distinct from those not in favour?

PN14

MR METCALF: We don't actually have that information with us, sir.

PN15

MR BRAITHWAITE: No, sorry, I haven't got it.

PN16

MR METCALF: We can contact the company, sir, to find out.

PN17

THE SENIOR DEPUTY PRESIDENT: Could you provide that information to me, say, within the next 2 days?

PN18

MR METCALF: Yes, sir.

PN19

THE SENIOR DEPUTY PRESIDENT: Mr Metcalf, I have a number of questions about the agreement. My questions do not invite either party to re-draft the document, they simply go toward clarifying the intention of the parties. Can I refer you first of all to clause 7 of the agreement. Clause 7.4 talks of: Existing Award And Over-Award Payments Continuing. Should I understand that the reference there is intended to be "over-award payments" as distinct from "over-agreement payments"? Secondly, should I understand that any such over-award or over-agreement payments are documented?

PN20

MR METCALF: That is correct, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: So is it "over-award payments", or "over-agreement payments"?

PN22

MS HENNIG: Over-award.

PN23

MR METCALF: Over-award payments.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7.6 talks of: Facilitative Arrangements. Should I understand that any such arrangements would also involve consultation with the employees covered by the agreement?

PN25

MR METCALF: Yes, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: Clause 10 talks of: Re-Negotiation Of The Agreement. Now, should I understand that any such extension would obviously be pursued in accordance with section 170MD of the Act?

PN27

MR METCALF: Yes, sir.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 12 details: The Relationship To Previous Certified Agreements. The provisions of clause 7.1, invoke the provisions of four separate awards. How should the provisions of those awards be read in concert with the provisions of pre-existing agreements?

PN29

MR METCALF: Excuse me, sir. Sir, you would have the awards relating to it first, then the previous agreements and then the current agreement.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 13 details: The Consultative Mechanisms. Should I understand that the capacity exists for persons who may not be members of the AWU, or may not be members of any union to be involved in that consultative process?

PN31

MR METCALF: That is correct.

PN32

THE SENIOR DEPUTY PRESIDENT: In that regard, can I take it there is no real distinction drawn between persons who are - or no distinction drawn at all between persons who are members of a union and persons who are not?

PN33

MR METCALF: That is correct, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: Clause 15, details: The Dispute Settlement Procedure. Whilst I will live in hope that you might never have to use it, history dictates that I ought to ask you some questions about it, Mr Metcalf. The immediate question arises relative to clause 15.1, which references clauses 3.2.1 of 3.2.2 of, I presume, the Metal Industry Award. Now, should I understand then that notwithstanding the provisions of three other awards are in effect called up by clause 7.1, the intention of the parties is to apply a single dispute settlement procedure based fundamentally on that Metal Industry Award provision?

PN35

MR METCALF: Yes, Senior Deputy President.

PN36

THE SENIOR DEPUTY PRESIDENT: With reference to 15.3, once again, the award that is referenced there is the Metal Industry Award 1998.

PN37

MR METCALF: Yes, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: Clause 16, talks of: Wage Rates. Are you in a position to provide me with a wages schedule, Mr Metcalf?

PN39

MR METCALF: Yes, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: So should I understand that this actually details wage rates applicable prior to the certification of this agreement, meaning that the increase established by clause 16.1 would be applied in addition to these rates?

PN41

MR METCALF: Yes, they are.

EXHIBIT #E1 WAGES SCHEDULE

PN42

THE SENIOR DEPUTY PRESIDENT: Clause 17.5 defines:

PN43

Ordinary time earnings on the basis of the award classification rate.

PN44

Should I understand that means the agreement classification rate?

PN45

MR METCALF: Yes, sir.

PN46

THE SENIOR DEPUTY PRESIDENT: Clause 19 relates to: Long Service Leave. 19.3, references Part IV of the 1998 Metals Award. Is it the intention of the parties to apply those arrangements to employees who would not be covered by that particular award, for example, employees who might be administrative employees, generally covered by the Clerks Metal South Australia Award, would they be subject to those provisions in 19.3?

PN47

MR METCALF: Excuse me, sir. Sir, it is the intention of the parties that the clerks be covered with those State provisions, however, the Federal Metals Award and Part IV of that award would cover those other employees still within this agreement.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 26: Rates To Casual And Contract Labour, with particular reference to 26.3. With some understanding of the history of this provision can I take it as a given that the process of consultation relative to the use of a contractor or a labour hire firm would not involve any consideration of issues associated with freedom of association?

PN49

MR METCALF: That is correct, sir.

PN50

THE SENIOR DEPUTY PRESIDENT: Finally, clause 29 relates to: Training. Should I take it that that enterprise training plan is a documented plan, that it is readily available to employees and that there might be circumstances which necessitate changes being made to it?

PN51

MR METCALF: Excuse me, sir.

PN52

MS HENNIG: Senior Deputy President, we have a training plan in place for all of our required training for the likes of OH&S, such as OHS reps, first-aid, a schedule of training and a training plan is provided to all of those people in those positions to ensure that they are trained in accordance with those roles. There is no other formal training plan for more ad hoc general training. We deal with that on a request basis from managers and employees. Certainly, the training plan for the required training can change as people move in and out of those roles.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. Should I understand that given that there are progressive reductions in employees envisaged to occur over the life of this agreement, that the training provisions in accordance with the agreement will be applied, so as to make sure that at minimum the occupational health and safety considerations are taken into account with regard to persons who might be asked to perform different jobs, or work in different ways commensurate with the progressive close down?

PN54

MS HENNIG: Yes, we certainly ensure that there are trained personnel in those roles within the organisation as legally required and if people have left the company, or would be leaving the company, we would find a replacement for those persons to take on those roles.

PN55

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN56

MS HENNIG: Thank you.

PN57

THE SENIOR DEPUTY PRESIDENT: One last question which I have deliberately put out of sequence, Mr Metcalf. The provisions of clause 24 relate to: Redundancy. This has been a matter of some disputation in the past. Can I take it that by virtue of this particular agreement the parties have clarified the process of consultation and the criteria associated with the application of that redundancy provision for the purposes of the progressive closure of this facility?

PN58

MR METCALF: Excuse me, sir. Yes, I'm sorry, sir. I'm instructed that the parties have reached agreement on how those redundancies will take place in terms of consultation between the parties before they are actually implemented.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Mr Metcalf.

PN60

MR METCALF: Sir, I might just at this stage also ask to submit a memorandum of understanding. The company has instructed me to put on file with the agreement itself, but not obviously as a public document.

PN61

THE SENIOR DEPUTY PRESIDENT: Just bear with me for a moment, Mr Metcalf.

PN62

MR METCALF: Yes, sir.

PN63

THE SENIOR DEPUTY PRESIDENT: So does this memorandum of understanding, first of all, have an intended application to all of the persons to be covered by this agreement?

PN64

MR METCALF: Yes, sir.

PN65

THE SENIOR DEPUTY PRESIDENT: Where it overlaps with the agreement, for instance with reference to clause 16 the wages clause, it is not intended to replace clause 16, but rather to add to it, is that the case?

PN66

MR METCALF: That is so, yes, sir. Essentially, that 1.5 per cent wage increase is on top of those mentioned within the agreement itself.

PN67

THE SENIOR DEPUTY PRESIDENT: With reference to clause 8 of this memorandum of understanding, should I understand that whilst casual service is recognised, a period of prior service, should there be one as an employee of a labour hire company, would not be recognised?

PN68

MR METCALF: Excuse me, sir. I am instructed, Senior Deputy President, that that provision in itself would not cover labour hire employees because they are not actually affected by this memorandum of understanding as there are none at the company.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you. Should I understand then that this memorandum of understanding is intended to operate as an outcome of the discussions over redundancy which are referenced in clause 24?

PN70

MR METCALF: Yes, sir.

PN71

THE SENIOR DEPUTY PRESIDENT: That what you are proposing to me is that I retain it on the Commission's file as an indication of the current status of the parties position, relative to redundancy arrangements?

PN72

MR METCALF: That is correct, sir.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Metcalf. Mr Braithwaite, can I take it that you are in agreement with all of Mr Metcalf's responses to the questions I have about the agreement?

PN74

MR BRAITHWAITE: Yes, sir.

PN75

THE SENIOR DEPUTY PRESIDENT: That you agree with my characterisation of the memorandum of understanding that I've been asked to retain on the Commission's file?

PN76

MR BRAITHWAITE: Yes, sir.

PN77

THE SENIOR DEPUTY PRESIDENT: Thank you. I am satisfied that the agreement itself was reached through a process consistent with the provisions of the Act. I am not as yet able to make a definitive finding pursuant to section 111(1)(r) of the Act, so as to extend the time frame for lodgment of the application. I will however indicate to the parties that if the information that is to be provided to me allows me to reach such a conclusion, then, I will extend the time frame for lodgment of the application. If it does not allow me to reach that conclusion the matter would be re-listed so as to see whether we could sort through that issue.

PN78

I am satisfied the agreement meets the pre-requisites for certification set out in sections 170LT and LU of the Act and, as a result, if I find that I am able to extend the time frame for lodgment of the application, I will certify the agreement with effect from the date upon which I receive that information. I would indicate to the parties also that the certificate, if one is issued, will identify the various clauses about which I have sought clarification. It will not detail the responses that I have been given because those are recorded on the transcript. The certificate will also note that I have retained on the Commission's file a wages schedule and a memorandum of understanding. Is there anything further, Mr Metcalf?

PN79

MR METCALF: No, sir.

PN80

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite?

PN81

MR BRAITHWAITE: No, sir.

PN82

THE SENIOR DEPUTY PRESIDENT: The duration of this agreement is likely to be a difficult time for many employees and I wish the parties well in working through any issues associated with that and hope that the agreement and, indeed, the memorandum of understanding will be adhered to, both in terms of the words and the spirit within which they have been reached. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [12.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E1 WAGES SCHEDULE PN42