AG2004/4202, Transcript of Proceedings [2004] AIRCTrans 3492 (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 2152

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4202

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Incitec Pivot Limited and Another for
certification of the Incitec Pivot Limited
Adelaide Enterprise Agreement (2004)

ADELAIDE

12 NOON, TUESDAY, 24 AUGUST 2004

PN1

MR A. MARKIEWICZ: I appear on behalf of the company, and appearing with me from the company is MR J. GEARING and also MR D. METCALF, from the Engineering Employees Association.

PN2

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

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read the statutory declarations and the agreement in this matter. Mr Markiewicz, the first question that arises is whether or not you can advise me of the date upon which the employees had the final copy of the agreement made available to them?

PN4

MR MARKIEWICZ: Certainly, sir. On the information that I have, it was more than 14 days prior to 28 June, when they voted on it.

PN5

THE SENIOR DEPUTY PRESIDENT: I see. It was more than that 14 days?

PN6

MR MARKIEWICZ: Yes.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Markiewicz, I have got some questions about the agreement. My questions will require the parties in a number of instances, to give some quite categoric undertakings because the agreement, on face value, probably does not meet the requirements necessary for certification. I take it Mr Braithwaite has got a copy of the agreement?

PN8

MR BRAITHWAITE: Yes, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Can I refer you first of all to clause 5, of the agreement, which is the: Parties Bound, clause. The clause purports to establish that the agreement is binding on the employer and employees who are members of the Australian Workers Union. Now, it may well have been the case that all of the employees of Incitec Pivot Limited are, or were at the time the agreement was voted on, members of the AWU. Was that the case?

PN10

MR MARKIEWICZ: Yes, sir.

PN11

THE SENIOR DEPUTY PRESIDENT: Now, is it the employer's intention to ensure that the agreement is, throughout its life, applied irrespective of whether or not a person is or remains a member of the AWU? Can you give me an undertaking to that effect?

PN12

MR MARKIEWICZ: Yes, sir. It is the intention that it applies to all employees who are not staff employees, they will be covered, irrespective of whether they are members of the AWU or not. I certainly can, on behalf of the company, give that undertaking.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 10, of the agreement relates to dispute settlement procedures. With particular reference to 10.2, does the capacity exist such that if a person was not a member of the AWU, they might be represented by an organisation or a representative of their choice?

PN14

MR MARKIEWICZ: Yes, sir.

PN15

THE SENIOR DEPUTY PRESIDENT: Clause 13, relates to a consultative committee. It talks about a consultative committee being established at each site. My understanding of this agreement is that it had application only at the Pivot Limited, Frances Street, Port Adelaide, site. Is that the case?

PN16

MR MARKIEWICZ: Yes, sir.

PN17

THE SENIOR DEPUTY PRESIDENT: The provisions of clause 13, go on to deal with a range of issues to be addressed by, in this case, the committee. Should I understand that those issues will be addressed over the life of this agreement or is there a more specific time frame the parties have in mind?

PN18

MR MARKIEWICZ: No, sir, my instructions are that it is over the life, possibly beyond the life of the agreement.

PN19

THE SENIOR DEPUTY PRESIDENT: Clause 18, relates to accident make up pay. Can you tell me how this provision operates in the context of the provisions of the South Australian Workers Compensation legislation?

PN20

MR MARKIEWICZ: Sir, in terms of that - in general terms, I guess, it is a safety guard. It is a provision which is more predominantly prior to the current legislation where you had variations in terms of the rates of pay and certainly, I guess, it is more prevalent in terms of interstate, but it is there, in terms of if there is any reduction in the terms of the particular entitlements under the current legislation, particularly in terms of the first 2 years, the particular people receive the same rate of pay and the make up pay should be zero. I guess that is more of a safety net, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: Clause 19, deals with superannuation arrangements. Are the policies and procedures referenced in that clause documented? Are they readily available to employees and might they be changed over the life of the agreement?

PN22

MR MARKIEWICZ: My understanding on my instructions, sir, is that yes, they are available. If the Commission pleases, I will just double-check as to the likelihood of change. My instructions, sir, are that they are unlikely to change during the currency of the agreement.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 22, deals with operating practices. With reference, first of all, to 22.1, should I understand that the arrangements relative to guarding of equipment are documented in some form of safety policy or practice?

PN24

MR MARKIEWICZ: Yes, sir, and also in terms of the legislation as well.

PN25

THE SENIOR DEPUTY PRESIDENT: And presumably, those practices or documented practices are made available to employees?

PN26

MR MARKIEWICZ: Yes, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: In clause 22.3, once again, there is a reference to multiplicity of plants. Should I understand though that the provisions set out in 22.3, are intended by the parties to apply to this particular plant?

PN28

MR MARKIEWICZ: Yes, sir.

PN29

THE SENIOR DEPUTY PRESIDENT: Clause 23, deals with training and it references the national standards, as they relate to the company's activities. It continues to reference the agreed competency standards. Are those national standards synonymous with the competency standards and depending on the answer to that question, is that information documented and readily available to employees on request?

PN30

MR MARKIEWICZ: Yes, sir, in general terms, in normal circumstances, the national standards and the company standards relate to the same standards. In terms of their availability, that is variable, depending on the categories. If we go through the particular classification, where we have the tradesman, they relate back to certain conditions under the Metal Engineering and Associated Industries Award. That is a well established and well documented ..... standards exercise and guidelines and that is certainly readily available. I think, in terms of looking at some of the other classifications, the level of information is variable depending on the area of the agreement, as to ..... Some are in progressive stages.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Markiewicz, the provisions of appendix B, the Income Safety Net Scheme, establish, on page 14, in the fourth dot point, "That there will be savings to employees in insurance premiums." No doubt, the parties are aware of the history of this particular matter but are you able to clarify how I should understand that particular provision?

PN32

MR MARKIEWICZ: If I could have a moment, sir?

PN33

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN34

MR MARKIEWICZ: Thank you, sir. Sir, I am advised that in terms of that particular provision, historically and continuing, the company will be paying for those - as it indicates in that particular provision, they will be paying the insurance premiums for temporary disability, which will be continued and that is why there is a saving, in respect of the employees.

PN35

THE SENIOR DEPUTY PRESIDENT: I see. So that if I look further down that same page 14, at the section headed: Application of the New Scheme, should I understand that there is a new scheme being put in place as a result of this particular appendix?

PN36

MR MARKIEWICZ: Yes, sir.

PN37

MR GEARING: Yes, sir. Well, it is the same scheme that was in place during the duration of the previous agreement.

PN38

THE SENIOR DEPUTY PRESIDENT: I see. So that the new scheme that is referenced is already an existing scheme?

PN39

MR GEARING: Yes, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: Presumably, it is a scheme that is generally available to all employees?

PN41

MR GEARING: Yes, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you. Finally, the very last paragraph on that page 14, talks about a dispute arising, being addressed under the existing Pivot enterprise agreement. Should I understand that the parties intend that a dispute that arises under that scheme would be brought back in and addressed by the parties in accordance with the provisions of this agreement?

PN43

MR MARKIEWICZ: Yes, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Markiewicz. Mr Braithwaite, are you in a position to be able to confirm your agreement with Mr Markiewicz's, responses?

PN45

MR BRAITHWAITE: I can, sir.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you. I am satisfied that this agreement was reached through a process consistent with that set out in section 170LJ, of the Act. On the basis of the undertaking given to me by Mr Markiewicz, I am satisfied the agreement meets the requirements necessary for certification and set out in sections 170LT and LU, of the Act. Accordingly, I will certify the agreement, with effect from today. The certificate giving effect to that certification will be forwarded out to the parties within the next few days. That certificate will detail the undertaking that I have been provided. It will also reference the various clauses about which I have sought clarification.

PN47

The responses to my questions though, will be recorded on the transcript of these proceedings. I congratulate the parties on reaching this agreement and on achieving certification of it. I appreciate that there has been a delay in that process. I would recommend to the parties that if they are looking at a successor to this agreement, they might look at addressing the provisions of clause 5, which, depending on the Commission member looking at it, might prove to be a fairly fundamental impediment to future certification. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [12.15pm]