AG2004/5214, Transcript of Proceedings [2004] AIRCTrans 3800 (27 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 13755

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2004/5214

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act by
Newnham Earthmoving Pty Ltd for certification
of the Newnham Earthmoving Agreement 2004

SYDNEY

1.39 PM, THURSDAY, 16 SEPTEMBER 2004

PN1

THE VICE PRESIDENT: Could I have the appearances please.

PN2

MR B. SHAW: If the Commission pleases, I continue my appearance for the company.

PN3

THE VICE PRESIDENT: Thank you, Mr Shaw. You'll recall the when this matter was last before me I dealt with the other statutory test. The only issue outstanding was the no disadvantage test. I had some questions in relation to that, and there's also a schedule that you've faxed to me. My questions went to whether the comparison the company had done was - or whether it had had regard to the 2004 safety net adjustment to the relevant award. The other question was in relation to travelling time, and there was a difference, it seemed to me, between the award and the agreement about that issue.

PN4

So perhaps if we deal with your tables first, and if you can explain those and then we can come back to the matters that I've raised and whether there may be a form of undertaking that can be sufficient to address any residual concerns I have. Perhaps if we deal with the first of the sheets, which is in relation to someone called John L, and if you'd take me through them and explain how it works.

PN5

MR SHAW: The way these sheets work, your Honour, is that the actual body of the table, of the spreadsheet is the award as it was prior to the latest safety net adjustment. Remember, this agreement was made in March and it's been in the process since then. Without going into each and every one of them, I think they're fairly self-explanatory. You've got the basis, ordinary hours, you've got time and-a-half overtime, double time overtime, and the various leave and leave loading aspects.

PN6

THE VICE PRESIDENT: Is that figure there at the bottom, 49,041, what does that relate to?

PN7

MR SHAW: That's right. That is what the person would have earned under the award for the actual work of last year.

PN8

THE VICE PRESIDENT: Right. Where is the amount they - and what they actually earned was 57,000, is that right?

PN9

MR SHAW: That's correct, yes.

PN10

THE VICE PRESIDENT: The position in relation to the others is, well, similarly - - -

PN11

MR SHAW: No. Just this morning I did a calculation in respect of Noel C, because he's the one that's closest. He never actually reached the threshold hours target by 22 - 33.

PN12

THE VICE PRESIDENT: So he got $45,246.76?

PN13

MR SHAW: No, he would have under the award, but under the agreement he in fact got $49,055.

PN14

THE VICE PRESIDENT: And the other employee, it's $42,811 and 30 cents under the award versus $51,421 under the agreement.

PN15

MR SHAW: Yes. With Noel C, if you actually adjust his award total by three and a half per cent to take into account the last safety net adjustment, his wage would have been under the award, $46,830, so he's still quite a way ahead of it.

PN16

THE VICE PRESIDENT: Is that the same if you adjusted for each of them?

PN17

MR SHAW: Yes.

PN18

THE VICE PRESIDENT: So essentially you're saying if the calculation is done in the is format and the current award rates were included, then the outcome would still mean that under the EBA they would receive more than under the award?

PN19

MR SHAW: Yes, they would - it's still a substantial more, obviously not as much is shown on these tables, but it's still quite a substantial amount more.

PN20

THE VICE PRESIDENT: Yes. What happens in the subsequent years?

PN21

MR SHAW: Well, presumably depending on what happens in the safety net, the award will slowly catch up, I think.

PN22

THE VICE PRESIDENT: No, I didn't mean - I'm not speculating about what might happen with the award, but in terms of the question of working out, firstly, the increases that are provided for in the agreement and how the annualised amount is worked out. Presumably they will go through that process again?

PN23

MR SHAW: Yes, they will.

PN24

THE VICE PRESIDENT: It will be reviewed after 12 months?

PN25

MR SHAW: Yes.

PN26

THE VICE PRESIDENT: And they can agree either to continue with the arrangements not to continue or to modify the amount of money?

PN27

MR SHAW: That's correct. This is in fact, this agreement with these same terms has been certified twice before and they seemed to be quite happy. My instructions are everybody is happy to keep going on with the system as it is.

PN28

THE VICE PRESIDENT: Okay. The only remaining issue really is the review system, which is on page 14. Do you see that at the base of 14? It's what happens in the - I have material in front of me that can tell me how it will work on the current annualised system, but built into the agreement is a capacity to vary that system by agreement directly between the parties without recourse to here. In order to address that would your client be content to provide an undertaking to the effect that any modification to the operation of the annualised salary, or annualised rate of pay provision would provide that employees receive no less than they would be entitled to under the relevant award?

PN29

MR SHAW: Yes, that would be absolutely no difficulty whatsoever.

PN30

THE VICE PRESIDENT: Okay. Thank you for that, Mr Shaw. I regret the delay that this matter has taken in finalisation. I think there was an early LK(4) problem, and then I was away for a period, but I'd indicate that I'm satisfied on the giving of that undertaking, and perhaps you can forward that to my chambers in writing, that the agreement meets the relevant statutory tests, and I'll issue a certificate certifying the agreement.

PN31

Can you also see that a copy of the undertaking is provided to the employees covered by the agreement and any new employee on commencement?

PN32

MR SHAW: Yes, I can do that.

PN33

THE VICE PRESIDENT: Thank you for that, Mr Shaw. I'll issue a certificate on receipt of your undertaking. I'll adjourn.

ADJOURNED INDEFINITELY [1.47pm]