AG2004/7020, Transcript of Proceedings [2004] AIRCTrans 3718 (21 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 13635
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

AG2004/7020

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Coleambally Irrigation Cooperative Limited
for certification of the Coleambally Irrigation
Co-operative Limited Certified Agreement 2004

SYDNEY

10.01 AM, FRIDAY, 10 SEPTEMBER 2004

PN1

MR S. COYNE: I appear for the applicant, Coleambally Irrigation.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Coyne, I notice that you have written to me saying that - we will deal with the second one first - in relation to minimum salary, sub-clause 34.3.

PN3

MR COYNE: Yes.

PN4

THE SENIOR DEPUTY PRESIDENT: Why don't you tell me about that?

PN5

MR COYNE: The minimum salary does not actually apply to anyone. In fact, during the negotiations the Consultative Committee were ambivalent about whether or not that even appeared in the agreement and I persuaded them to leave it in there because it is in the existing agreement that this document today is proposed to replace, because the practice there has in the past to simply focus on salary increases, you know, and I suggested to the company and the employees that that was all well and good while there were people employed there, but they didn't have a base line to compare, or to provide if somebody new turned up with less skills or experience than the people who were working there.

PN6

So all I did was I applied 10 per cent to the minimum wage that was applying in the existing agreement because that was roughly the quantity of increases over the life of that agreement but, at the same time, there is a mechanism which you are probably aware of under New South Wales State law for triennial reviews of State awards and the relevant aware for this company is a State award and that was happening simultaneously as the negotiations.

PN7

What happened was because that award had not been touched for 3 years there were 3 years worth of safety nets and so the minimum salary in the relevant award had moved to $27,930, and my simple calculation took it to $27,500. So I thought that it was inappropriate to leave it there, even though there are other matters - - -

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, I understand the point, yes.

PN9

MR COYNE: So that was all it was.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. Now, as to duration there is no representatives here of the employees?

PN11

MR COYNE: No, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Well, changing the duration of the agreement from 2 years from certification will take it to 31 March - - -

PN13

MR COYNE: Yes, that is right, 31 March.

PN14

THE SENIOR DEPUTY PRESIDENT: To 10 September 2006, instead of 31 March 2006, which is about 6 months - 5-1/2 months longer.

PN15

MR COYNE: Yes. The reason for that is that the existing agreement expired on 31 March this year and it has just been a while getting the negotiations concluded. They weren't difficult - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Well, what did the parties vote on, that is the difficulty? Did they vote on an agreement that was to expire on - - -

PN17

MR COYNE: No, I believe it was their understanding - if you have a look at the word in the second sentence of clause 3, it says:

PN18

However, it is the expectation of the parties that the document supersedes this agreement.

PN19

Meaning the next one after this one will be signed by the parties - that was their attempt to put into a form of words what they intended. What is going to happen is on the assumption that you certify this agreement today, those matters that can be back dated will be to 31 March this year. The company and the employees started out negotiating in about March, they left it until the time that the agreement expired, they didn't move before the expiry date, and then there was a change of CEOs in May which slowed things down a little bit.

PN20

So the company always intended that it would operate from 31 March this year, but of course in the drafting of the document, the original drafting was a 2-year period from the date of certification, that never got changed during those negotiations.

PN21

THE SENIOR DEPUTY PRESIDENT: Was this the wording that was put to the workers?

PN22

MR COYNE: Yes, nothing has been changed since the ballot, but what - - -

PN23

THE SENIOR DEPUTY PRESIDENT: When did the ballot take place?

PN24

MR COYNE: I've got that here. On 10 August. So what the parties want, and my instructions are clear, is that this will operate in terms of salaries and other benefits back to 31 March '04, so there will be 6 months back pay for the salaries and so on and it suits the company for it to expire in March of '06, because of their budgeting process, they will know what they need to budget for, and that second sentence that is in clause 3 of the agreement was the company and the Consultative Committee's attempt to reflect that prior to the ballot. Had I known they had done that I would have changed those words but they didn't consult me, they just did that and you can see from those words that they want to have this matter in 2 years time, resolved earlier in the calendar year before then.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, how many employees are there?

PN26

MR COYNE: There are 36 in total.

PN27

THE SENIOR DEPUTY PRESIDENT: Right, Mr Coyne, in relation to the confidentiality clause, I understand there has been a decision handed down by the High Court very recently in Electrolux that limits all matters in certified agreements to matters pertaining to employment.

PN28

MR COYNE: Yes, I have that.

PN29

THE SENIOR DEPUTY PRESIDENT: This confidentiality clause extends to post employment. Now, it is arguable that that might mean that it is confined to information obtained during the course of employment, therefore, it is such a matter.

PN30

MR COYNE: Look, I don't know why - - -

PN31

THE SENIOR DEPUTY PRESIDENT: There might be other matters that arise. I have had a look at the agreement, of course, and it is the only matter that I had some concerns about.

PN32

MR COYNE: Yes, I personally - - -

PN33

THE SENIOR DEPUTY PRESIDENT: There is going to be a lot of these matters, Mr Coyne - - -

PN34

MR COYNE: Sorry?

PN35

THE SENIOR DEPUTY PRESIDENT: There will be a lot of these matters arising - - -

PN36

MR COYNE: As a result of that - - -

PN37

THE SENIOR DEPUTY PRESIDENT: - - - following Electrolux and, you know, there might be an issue for existing agreements as well as new agreements, so those matters need to be thought about. Do you have anything to say about that confidentiality clause?

PN38

MR COYNE: Well, I don't think that it is a major issue.

PN39

THE SENIOR DEPUTY PRESIDENT: No, well - - -

PN40

MR COYNE: I think this is a matter that has been company policy like so many companies have. I recognise those words. It is probably - they are almost generic in terms of, you know, company policy manuals where people use them. I'm certainly not aware that it was an issue raised by anyone during discussions and negotiations, this has just been repeated from the existing agreement.

PN41

THE SENIOR DEPUTY PRESIDENT: All right. Well, I think this, Mr Coyne, I think that I can't change the date from which it applies in the way that you asked me. I think in relation to the minimum salary that the relevant award in any event would - be effective for setting the minimum salary no matter what was in the agreement - but I think that you should - you haven't considered at all whether that confidentiality clause that extends to beyond employment is, or is not a matter that is pertaining to the employment under the Electrolux decision?

PN42

MR COYNE: No, I haven't. I haven't read that in detail, that decision.

PN43

THE SENIOR DEPUTY PRESIDENT: I will put this to you, you might like to put something to me about that. If you think it is not a matter about which you want to hang your hat, you might put very shortly all these three matters back to the 36 employees in short form for a vote and restore the matter to me. I don't think I can change the date of effect of this agreement in the way that you suggest. It is 6 months, 6 months is a long time.

PN44

MR COYNE: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: It is a significant matter.

PN46

MR COYNE: The 2 years, they are going to get their 2 years because we are going to backdate it to 31 March this year. There's not going to be any disadvantage though, is there?

PN47

THE SENIOR DEPUTY PRESIDENT: No. Well, that is not the test though. The answer is: can I change - is it a different agreement than the one that was voted on? If it has got a term that goes for an additional 6 months, the answer is yes.

PN48

MR COYNE: I suppose we could leave it at 2 years because there's nothing to stop the company and the employees making a new agreement in March or May of '06 and rescinding this one early. So that would work.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, look, I don't want to press you about that now when you don't have instructions. It seemed to me given the number of employees you have it is not a long time. Big deal, I mean, as if it was thousands of employees to go back. You might like to think about that.

PN50

MR COYNE: But, your Honour, I'm reluctant to go through the - I mean, that is more delay now and they have what they want in there now. The company is prepared to pay the money, back-pay and so on. I think it would be - it does not matter. If you make it apply till September '06 and they are ready to move before then, they can make a joint application to put this aside.

PN51

THE SENIOR DEPUTY PRESIDENT: They can. What I'm putting to you is what I think about whether I can do what you have asked me, and I don't think I can.

PN52

MR COYNE: Well, I think we could still proceed to make it effective to use from today's date.

PN53

THE SENIOR DEPUTY PRESIDENT: Well, if you want to leave the agreement as it is, I will certify it today.

PN54

MR COYNE: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: I have no difficulty with the agreement and I don't think you need to adjust the minimum salary in that clause because the minimum adjustment to the underlying State award will in any event apply.

PN56

MR COYNE: Well, I propose to give the undertaking that we will apply it as if it were in the agreement anyway.

PN57

THE SENIOR DEPUTY PRESIDENT: All right. In that case I will certify the agreement as at today's date.

PN58

MR COYNE: Okay, thank you, your Honour. Otherwise I have nothing. I rely on the agreement.

PN59

THE SENIOR DEPUTY PRESIDENT: I think that in relation to that clause as to confidentiality, I think my personal view is that I've considered it and that it relates to the employment information obtained during the course of the employment and it is therefore a matter pertaining to the employer and employee relationship.

PN60

MR COYNE: Very good.

PN61

THE SENIOR DEPUTY PRESIDENT: But I think from now on, Mr Coyne, you need to be looking at that very carefully. In all of these agreements it will not be possible as in the past to have matters in the agreement, some of which pertain and some don't.

PN62

MR COYNE: Yes, good point. Otherwise I commend the agreement and have no further submissions, thank you, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Done, certified. Thank you.

ADJOURNED INDEFINITELY [10.14am]