AG2004/4679, Transcript of Proceedings [2004] AIRCTrans 4108 (22 October 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 2318
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4679

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Clipsal Australia Proprietary Limited and
Another for certification of the Clipsal Australia
Pty Limited Murray Bridge Enterprise Bargaining
Agreement 2004

ADELAIDE

9.20 AM, WEDNESDAY, 13 OCTOBER 2004

PN1

MR A. MARKIEWICZ: I appear on behalf of the company, Clipsal Australia. Appearing with me today are MR M. BALL and MS N. ADES. Also if I could indicate to the Commission that MS MICHELLE SMITH, the employee representative is also present.

PN2

MR M. EMMERSON: I appear on behalf of the Australian Manufacturing Workers' Union and its members.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Emmerson, I take it that you are appearing in this matter, or seeking to intervene in this matter, in pursuant of the request sent to me on 18 August wherein the AMWU indicated that it had been requested by its members to become party to the agreement. Is that the case?

PN4

MR EMMERSON: That is correct, Commissioner, yes.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Markiewicz, is there any dispute over that request?

PN6

MR MARKIEWICZ: No, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: Or indeed any argument over the extent to which, if I certify the agreement, the AMWU should be made party to it?

PN8

MR MARKIEWICZ: The company has no objection to the union being party to the agreement, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Markiewicz. I can advise the parties that I have read the statutory declarations and I've read the agreement itself. I've noted that attached to the agreement is the employer's notice of intention. Mr Markiewicz, I have some questions about the agreement. Perhaps before I do that, I will just clarify the status of our employee representative, Ms Smith. Ms Smith is the employee representative?

PN10

MR MARKIEWICZ: Ms Smith is the employee representative, yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Smith, can I take it that you were elected as an employee representative?

PN12

MS SMITH: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Was that election by way of a secret ballot or a show of hands?

PN14

MS SMITH: A secret ballot.

PN15

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now, the material provided to me includes the employers notice of intention to make the agreement which is a document dated 13 August 2004. Can you confirm to me that on or around that date you received such a notice?

PN16

MS SMITH: Yes, I did.

PN17

THE SENIOR DEPUTY PRESIDENT: To the best of your knowledge, such a notice was sent out to all employees?

PN18

MS SMITH: Yes, it was.

PN19

THE SENIOR DEPUTY PRESIDENT: Now, to what extent can you advise me of whether or not you are aware of employees who sought the union be involved in negotiations about the agreement?

PN20

MS SMITH: All employees were told about the union. There is members there that are already part of the union. Everybody was advised about it and, yes, they all knew about it.

PN21

THE SENIOR DEPUTY PRESIDENT: I see. Thank you, Ms Smith. Now, Ms Smith, I'm going to ask Mr Markiewicz some questions about the agreement. Do you have a copy of it there?

PN22

MS SMITH: Yes, I do.

PN23

THE SENIOR DEPUTY PRESIDENT: My questions don't invite Mr Markiewicz to rewrite the document. They simply go to clarifying the intention of the parties relative to a number of issues that I need to take into account in this matter. If you want to add or indeed differ from anything Mr Markiewicz says, please just hop up and tell me that.

PN24

MS SMITH: Okay.

PN25

THE SENIOR DEPUTY PRESIDENT: If you don't do so, I will assume that you are in agreement with Mr Markiewicz.

PN26

MS SMITH: No worries.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Emmerson, can I take it that you have got a copy of the agreement too?

PN28

MR EMMERSON: I have, Commissioner, yes.

PN29

THE SENIOR DEPUTY PRESIDENT: Mr Markiewicz, my questions might bring a sense of deja vu in some regards, given this is the third such agreement that I've looked at.

PN30

MR MARKIEWICZ: Yes, sir.

PN31

THE SENIOR DEPUTY PRESIDENT: First of all, are you able to provide me with a wages schedule?

PN32

MR MARKIEWICZ: Yes, sir.

PN33

THE SENIOR DEPUTY PRESIDENT: Have you got one now or do you need time to do that?

PN34

MR MARKIEWICZ: No.

PN35

THE SENIOR DEPUTY PRESIDENT: I'm happy to allow time if you need it.

PN36

MR MARKIEWICZ: No, the company does have copies here, I think, sir.

PN37

THE SENIOR DEPUTY PRESIDENT: I will mark this document as C1 noting that it is Clipsal Australia Pty Ltd enterprise agreement wage details, Murray Bridge.

EXHIBIT #C1 WAGE DETAILS DOCUMENT, MURRAY BRIDGE

PN38

THE SENIOR DEPUTY PRESIDENT: Now, Ms Smith and Mr Emmerson, are both of you in a position to tell me that you agree with these wage figures now or do you need time to look at them?

PN39

MS SMITH: Yes, that is fine.

PN40

MR EMMERSON: That is correct, sir. Commissioner, yes, we - - -

PN41

THE SENIOR DEPUTY PRESIDENT: I will note the document and agreed document in that regard and I will attach it to the Commission's file, Mr Markiewicz. If I take you to appendix A, clause 1, which references in subclause (j), The Manufacturing Mission Statement. Should I understand that mission statement exists in documented form, that it is readily available to employees and that it may be changed over the life of the agreement?

PN42

MR MARKIEWICZ: Yes, sir, that is correct. We do have copies.

PN43

THE SENIOR DEPUTY PRESIDENT: I don't need copies at this stage on that basis, Mr Markiewicz.

PN44

MR MARKIEWICZ: Thank you, sir.

PN45

THE SENIOR DEPUTY PRESIDENT: Clause 5 relates to flexible meal times to allow automatic machines to run continuously. How will that clause actually operate, Mr Markiewicz?

PN46

MR MARKIEWICZ: Sir, in terms of that particular clause, it allows for the machine to be operating and the particular employees that will be rostered at different times in terms of taking particular meal breaks so that there is continuity of work.

PN47

THE SENIOR DEPUTY PRESIDENT: So that if I looked at that clause in relation to meal times and contrasted it with the provisions of clause 6, should I understand that flexible meal times will still occur, or will occur, but within the parameters set by the Metal Industry Award?

PN48

MR MARKIEWICZ: Yes, sir, that is correct.

PN49

THE SENIOR DEPUTY PRESIDENT: Clause 8 talks of a quality strategy. It continues to talk about the National Metal and Engineering Competency Standards and then says that:

PN50

Training and development has commenced.

PN51

There are three questions there. First of all, should I understand that that quality strategy is a documented strategy readily available to employees and a strategy that may be changed over the life of the agreement?

PN52

MR MARKIEWICZ: Yes, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: Should I understand that those National Metal and Engineering Competency Standards, which I know are documented, are readily available to employees on request?

PN54

MR MARKIEWICZ: Yes, sir.

PN55

THE SENIOR DEPUTY PRESIDENT: Thirdly, should I understand that the reference to training and development having commenced refers to training and development in the context of that quality strategy?

PN56

MR MARKIEWICZ: Yes, sir.

PN57

THE SENIOR DEPUTY PRESIDENT: Clause 11 relates to endorsement of the support of automation and technology improvement. Should I take it this is simply a motherhood statement that does not bring with it any specific obligations?

PN58

MR MARKIEWICZ: You are correct, sir.

PN59

THE SENIOR DEPUTY PRESIDENT: Clause 16 relates to hours of work and the spread of hours. In the event of an agreed 12 hour shift, how are employees paid on that basis?

PN60

MR MARKIEWICZ: Sir, in terms of the award description, if you have 12 hour shifts, 12 hours would be 12 ordinary hours and they would be paid at ordinary rates. It is a matter of having the particular roster to meet the particular requirements but the award provides for up to 12 ordinary hours in terms of the shifts.

PN61

THE SENIOR DEPUTY PRESIDENT: So the 12 hour shifts if worked, would be paid in accordance with the award penalty provisions?

PN62

MR MARKIEWICZ: Ordinary time, yes, sir.

PN63

THE SENIOR DEPUTY PRESIDENT: Clause 19 takes me back, it relates to meal break flexibility and takes me back to some extent to clauses 5 and 6. Once again, should I understand that clause 19 should be read in concert with the award or how should I understand that particular provision?

PN64

MR MARKIEWICZ: Sir, in terms of that, it is read in concert with the award, the award has a provision in terms of viable 6 hours but there is no minimum requirement in terms of the award, in terms of taking meal break. This particular provision allows saying that it will be between 4 and 6. The award indicates that an employee shall not be required to have worked beyond 5 hours and then there are certain exceptions in terms of stretching that to 6 hours.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 21 relates to journey accident income protection. It talks of an agreed level of compensation. Can you tell me what that agreed level is and the duration of the income protection arrangement that is provided?

PN66

MR MARKIEWICZ: It is up to $1000 and it will last for 24 months, sir.

PN67

THE SENIOR DEPUTY PRESIDENT: Sorry, it is up to $1000. Presumably based on average weekly earnings, is that the case?

PN68

MR MARKIEWICZ: Yes, sir.

PN69

THE SENIOR DEPUTY PRESIDENT: Sorry, what was that duration again?

PN70

MR MARKIEWICZ: 24 months.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 28 relates to superannuation. How should I understand that particular provision which I understand was the source of some consideration in earlier agreements?

PN72

MR MARKIEWICZ: It certainly is, sir. The purpose of that is to indicate that the parties are cognisant of the fact of the proposed variation to the legislation in terms of right of choice and perhaps to embellish on that, sir. We have the right to tender a protected document which is put out by the company signed by Mr Brad Evee, the general manager of human resources, Mr Simon Gerrard, the executive general manager which goes to the area of the right of choice of superannuation.

PN73

It explains that in terms of that legislation, does not come into operation till 1 July 2005 and it is the company's intention to allow the employee's right of choice in line with these legislative changes when they come into effect. The company will continue to pay the 9 per cent superannuation guarantee contributions into the approved fund for the next 12 months, whilst legislation is being finalised. So certainly hopefully helps clarify the position.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I will mark that document as C2 noting that it is a memorandum to employees detailing the Clipsal position relative to superannuation.

EXHIBIT #C2 MEMORANDUM TO EMPLOYEES

PN75

THE SENIOR DEPUTY PRESIDENT: Should I understand with regard to that document that I've marked as C2 that the last paragraph means that there is only the one fund into which superannuation payments are made at the present time?

PN76

MR MARKIEWICZ: Correct, sir.

PN77

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 32 relates to drug testing. It references the WorkCover Corporation guidelines for drugs, alcohol in the workplace. Should I take it that those guidelines are readily available to employees and that the intention of the parties is to rely upon them in whatever iteration they might exist during the life of the agreement?

PN78

MR MARKIEWICZ: Yes, sir.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Markiewicz. Just so that I can be clear in this regard. Ms Smith, can I take it that you are in agreement with all of Mr Markiewicz's responses?

PN80

MS SMITH: Yes, sir.

PN81

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Emmerson?

PN82

MR EMMERSON: Commission, the AMWU is in agreeance and genuine negotiation did take place throughout the negotiation of this agreement and we would ask that it be certified by the Commission.

PN83

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me today, I am satisfied that the agreement was reached through a process consistent with that set out in section 170LK of the Act. I am similarly satisfied the agreement itself meets the necessary requirements necessary for certification in terms of sections 170LT and LU of the Act. Accordingly, I will certify the agreement with effect from today.

PN84

The certificate to that effect will be forwarded out to the parties within the next few days. That certificate will detail the various clauses about which I have sought clarification. It will not record the responses that are noted on the transcript of these proceedings. I am also satisfied on the basis of the advice provided to me by the AMWU and the company that request has been made in accordance with section 170M(3) of the Act, such that the AMWU should be a party to the agreement.

PN85

An order to that effect will be made with effect from today and will similarly be sent out to the parties at the same time as the certificate is sent out. I congratulate the parties on reaching this, which I understand is the last of the three agreements in this regard and hope that this agreement operates to benefit all of the parties over its duration. Sorry, Mr Markiewicz?

PN86

MR MARKIEWICZ: Just for clarification, they certainly were last of the satellite agreements. There are a couple of others which are associated with this company.

PN87

THE SENIOR DEPUTY PRESIDENT: There is more, is there?

PN88

MR MARKIEWICZ: Yes, sir, and there is also - - -

PN89

THE SENIOR DEPUTY PRESIDENT: I shall await that with anticipation, Mr Markiewicz.

PN90

MR MARKIEWICZ: Thank you, sir.

PN91

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [9.38am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 WAGE DETAILS DOCUMENT, MURRAY BRIDGE PN38
EXHIBIT #C2 MEMORANDUM TO EMPLOYEES PN75