AG2004/5650, Transcript of Proceedings [2004] AIRCTrans 3820 (28 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 2232
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5650

APPLICATION FOR AGREEMENT ABOUT
INDUSTRIAL DISPUTE (DIVISION 3)

Application under section 170LS of the Act
by the Construction, Forestry, Mining and Energy
Union-CFMEU, FFTS Union SA, divisional Branch
and Another for certification of the Alody Division
of Hunter Douglas Limited Enterprise Agreement
2004-2005

ADELAIDE

12.50 PM, FRIDAY, 17 SEPTEMBER 2004

PN1

MR M. NICOLLS: I represent the CFMEU and Forest and Furniture Products Manufacturing Division.

PN2

MR K. SHARP: I'm General Manager of Alody Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read both the agreement and the statutory declarations in this matter. The initial question that arises is whether or not the parties can advise me of the date upon which the agreement, in its final form, was made available to the employees?

PN4

MR NICOLLS: I'm sorry I didn't - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Are the parties able to advise me of the date upon which the agreement, in its final form, was provided to employees?

PN6

MR NICOLLS: I think it was about 10 August.

PN7

THE SENIOR DEPUTY PRESIDENT: Now, Mr Sharp, I'm going to ask Mr Nicolls some questions about the agreement itself. My questions do not invite him to rewrite the document at all, they simply go to clarifying the intention of the parties about matters that I need to take into account in considering the application. Can I take it that you have got a copy of the agreement there?

PN8

MR SHARP: Yes, I have.

PN9

THE SENIOR DEPUTY PRESIDENT: Please feel free to contribute to any of Mr Nicolls' responses and in a couple of cases you may have to do so.

PN10

MR SHARP: Right.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Nicolls, can I refer you first of all to clause 4 of the agreement, which is the intention clause, with particular reference to the matters set out on page 4, is there a particular time frame for the achievement of any of those intentions, or are they matters that are intended to be addressed over the life of the agreement?

PN12

MR NICOLLS: Sir, I think Mr Sharp might be able to answer, or help me answer that one a bit better, but I think it is over the length of the time of the agreement itself, but Mr Sharp would be able to - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Sharp, can you agree with that or - - -

PN14

MR SHARP: Yes, I can. That is the philosophy of the company and has been for several years and we are constantly working on those elements.

PN15

THE SENIOR DEPUTY PRESIDENT: IN which case, I will address the next couple of questions to Mr Sharp. Clause 6 relates to employment conditions. Under the heading of: Classification Structure, the parties have agreed to establish guidelines for the application, development and assessment of trade skills within the workplace in conjunction with the Douglas Mawson Institute of TAFE. Is that something that is going to occur over the life of the agreement?

PN16

MR SHARP: Yes, it is. We have contacted TAFE and they are going to come down and see us and go through the assessment procedure.

PN17

THE SENIOR DEPUTY PRESIDENT: Clause 7, relates to skill developments. 7(a) talks about training being competency based with clearly defined and agreed performance standards. How are those standards to be agreed and what defines "agreement"?

PN18

MR SHARP: That is basically the competency of the workplace and we have a skills matrix for each employee and as they progress we mark it off as being completed in that aspect of their job.

PN19

THE SENIOR DEPUTY PRESIDENT: So are those performance standards agreed on an individual basis?

PN20

MR SHARP: Yes.

PN21

THE SENIOR DEPUTY PRESIDENT: Subclause (b) of that same clause 7, talks about payment of school fees. Should I understand that they are some form of trade school fee agreements?

PN22

MR SHARP: Yes, generally speaking, it is with TAFE. So as people enrol in TAFE we pay the fees and their books.

PN23

THE SENIOR DEPUTY PRESIDENT: Clause 7, as it occurs on page 7, talks of vocational education and training. Should i understand that will particular reference to subclause (b) of that section the time frame proposed in that regard is over the life of the agreement?

PN24

MR SHARP: Yes, it is.

PN25

THE SENIOR DEPUTY PRESIDENT: Equally, on page 8, the agreement addresses English language literacy and numeracy as part of clause 7. Should I also understand that that is something that will occur over the life of the agreement?

PN26

MR SHARP: It is an ongoing process we have an English teacher that comes on site for 2 hours a week, that has been happening over the last 3 years and still continuing for those who need it.

PN27

THE SENIOR DEPUTY PRESIDENT: Clause 8, as it appears on page 19 of the document and subclause (f) reads:

PN28

For the period of this agreement, the indicator system central to performance improvement shall include the productivity standard as the key performance indicator.

PN29

Can someone tell me what that means?

PN30

MR SHARP: We have key performance indicators for most of the jobs in the factory and our culture in the place is one of work teams. We review those systems on our fortnightly meeting to make sure that people are adhering to the indicators we set.

PN31

THE SENIOR DEPUTY PRESIDENT: So that the key performance indicator is, in effect, the productivity standard within a given a work function?

PN32

MR SHARP: Yes, sir, and also a quality standard.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 8, as it occurs on page 22 of the document, relates to the introduction of quality systems. Should I understand that that will occur again over the life of this agreement?

PN34

MR SHARP: Yes, sir, it is ongoing.

PN35

THE SENIOR DEPUTY PRESIDENT: Clause 17 relates to equal employment opportunity and affirmative action, it occurs on page 28, with reference to subclause (b), are those actions going to occur over the life of the agreement or is there a more particular time frame?

PN36

MR SHARP: No, they are ongoing, sir, they have been there for some years.

PN37

THE SENIOR DEPUTY PRESIDENT: Clause 22, relates to the avoidance of disputes and settlement of disputes procedure. Step 3, or as part of subclause (c), gives rise to a question, Mr Sharp, that will need to be answered by you. In the event that an employee was not a member of the CFMEU, or possibly even not a member of any union, does the capacity exist for that employee to be represented by a person, or an organisation of their choice?

PN38

MR SHARP: Certainly, Dave Kernot of the CFMEU, tends to represents people whether they are members or not. We have very few members that are not members of the union. Almost all of our employees are members of the union.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, but in the event that someone was not a member of this union, or possibly even any union does the employee have the capacity to be represented by someone else?

PN40

MR SHARP: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: Now, subclause (5), Mr Nicolls, this is clause 22(c)(5) talks about an unresolved matter being referred by the parties to the Australian Industrial Relations Commission for settlement. Should I understand that the intention of the parties is that the Commission would, first of all, try to resolve any such matter by way of conciliation with arbitration as a last resort?

PN42

MR NICOLLS: That is correct, sir. Yes, sir.

PN43

THE SENIOR DEPUTY PRESIDENT: Appendix C, on page 42, has a subheading called: Further Conditions. Mr Nicolls, how should I understand this particular provision in the context of the Electrolux decision?

PN44

MR NICOLLS: Sir, we make a substantial effort, as a union, to any of our members who become unemployed, whether they be sacked, or if they are retrenched. We do make a concerted effect to just try to find them jobs and we are pretty successful in it. It was only yesterday actually up at Horn Furniture they asked me then if we knew of any unemployed members, or people who were looking for work to send them our way. So, sir, we just say we will help out in an endeavour to find any people who have been retrenched some alternative work around the place, whether that be glazing, forestry, or continue on furniture, or soft furnishings.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. The issue that I'm addressing in this respect is the extent to which that particular provision pertains to the employment relationship that exists between this particular employer and employees?

PN46

MR NICOLLS: Yes, sir, well, I would suggest - and I think Mr Sharp would back me up - that it is in the interest of his employees if they were unfortunate enough, and our members, to become employed that we would help them out and try to help them go from one part of the industry in to another section of the industry and therefore continue to pay taxes and to continue to support their families. We don't only offer that type of assistance to members, sir, we also - if people aren't members, we will tell them what companies we know of are looking for new workers and we will try to give them a hand.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, I am in no way criticising or casting any doubt upon the efforts that are made by the CFMEU in this regards. The issue that I am wrestling with, is how I can link that particular provision back to the employment obligations and the arrangements that apply between this employer and the employees? I can understand how this is an arrangement between the CFMEU and retrenched employees. Should I take it though that what you are saying to me is that I should read that provision as an integral component of the overall redundancy package?

PN48

MR NICOLLS: Yes, sir, that is exactly what I was about to think of, give me about 3 or 4 weeks.

PN49

THE SENIOR DEPUTY PRESIDENT: Appendix D relates to 24 hour income protection. Is there a limit in terms of the duration from which that income protection insurance would apply?

PN50

MR SHARP: Yes, sir, 12 months.

PN51

THE SENIOR DEPUTY PRESIDENT: It is 12 months, is it, and that is agreement, Mr Nicolls?

PN52

MR NICOLLS: Yes, sir, yes.

PN53

THE SENIOR DEPUTY PRESIDENT: And appendix E talks of variations to this agreement. How should I understand that particular appendix?

PN54

MR NICOLLS: Mr Sharp might be able to help me out on this one, sir. I think Dave Kernot is a bit more involved with this part of it.

PN55

MR SHARP: It is our intention, sir, to include a direct bonus scheme for productivity if we can get the measurement criteria right with an agreement between ourself, the workers, and the union. We will work towards that during the course of the agreement, the life of the agreement.

PN56

THE SENIOR DEPUTY PRESIDENT: If you can reach agreement in that respect, can I take it the parties then intend to make an application to vary this agreement so as to incorporate that group bonus scheme.

PN57

MR SHARP: Yes, sir.

PN58

THE SENIOR DEPUTY PRESIDENT: If you can't reach agreement in that respect should I understand that the intention of the parties is that that that matter would be held over until the next agreement?

PN59

MR SHARP: Yes, sir.

PN60

THE SENIOR DEPUTY PRESIDENT: Or is it the case that the parties expect that this issue could be the subject of a further bargaining period?

PN61

MR SHARP: If we can't reach an agreement it will be held over until the next agreement, sir.

PN62

THE SENIOR DEPUTY PRESIDENT: Now, Mr Sharp, I'm taking it that wherever you wanted to comment on any of Mr Nicolls' responses you have done so?

PN63

MR SHARP: Yes, sir.

PN64

THE SENIOR DEPUTY PRESIDENT: Mr Nicolls, can I take it that you too have agreed with all of Mr Sharp's comments?

PN65

MR NICOLLS: Yes, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: On the basis then of the information provided to me I am satisfied the agreement was reached through a process consistent with that set out in section 170LJ of the Act. I am similarly satisfied the agreement meets the requirements specified in section 170LI of the Act. In that regard, I've had particular regard to the provisions of the agreement relative to redundancy and if concluded that those provisions do pertain to the employment relationship on the basis that they define the circumstances and arrangements that will apply between the parties in the case of redundancy.

PN67

I'm satisfied that the agreement meets the requirements necessary for certified set out in sections 170LT and LU of the Act and I will certify the agreement with effect from today. The certificate giving effect to that certification will be forwarded out to the parties in the next few days. That certificate will detail the various clauses about which I have sought clarification. It will not incorporate the responses that I have been given because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope that it benefits both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [1.00pm]