AG2004/1001, Transcript of Proceedings [2004] AIRCTrans 421 (3 February 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N F1311

RELATIONS COMMISSION

COMMISSIONER BARTEL

AG2004/1001

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Swiss Joinery Pty Limited and/or Nominees
and Another for certification of the Swiss
Joinery Pty Ltd and/or Nominees Enterprise
Bargaining Agreement 2003

ADELAIDE

11.30 AM, WEDNESDAY, 21 JANUARY 2004

PN1

MR B. KLITSCHER: I appear on behalf of Swiss Joinery in this matter. With me is MS H. KAECH, who is the company secretary for Swiss Joinery and next to Ms Kaech is MR S. BIERENBOIM, a company representative.

PN2

THE COMMISSIONER: The employee rep?

PN3

MR KLITSCHER: The employee rep.

PN4

THE COMMISSIONER: Yes, thanks, Mr Klitscher.

PN5

MR KLITSCHER: Thank you, Commissioner. Commissioner, this is an agreement under section 170LK and the agreement is in writing and it pertains to the employer/employee relationship. The company is a constitutional corporation and that is attested to at part 2.1.

PN6

THE COMMISSIONER: Yes.

PN7

MR KLITSCHER: Commissioner, the employer took reasonable steps to ensure that employees who were to be subject to the agreement had at least 14 days notice in writing of the intent to make the agreement. Unfortunately, I haven't got a copy of that letter to you but if the Commission does desire a copy I can send one, but there was a letter written to each employee setting out the representational rights, what the company wanted to achieve in the agreement, what sort of an agreement - - -

PN8

THE COMMISSIONER: Yes, the stat dec will suffice in relation to that, thank you.

PN9

MR KLITSCHER: We can say to you, Commissioner, that the notice specified that any person who was a member of a union with coverage, then employees were invited to speak to their union and that the union would be able to speak to the employers if they so desired. There was no request from the employees to the union to represent them in this matter. At the time the letter was given to each employee, a copy of the proposed agreement was given to employees to have and to read individually. We say the 14 days did pass before the agreement was made between the company and the employees before the agreement was signed.

PN10

We say that the agreement was lodged within the Commission within the 21 days time span under section 170LM(2)(b) and the terms of the agreement were explained to all employees in an appropriate way. Now, I say that "in an appropriate way" you know, as you can see by the statutory declarations of some employees were not English speaking background and that was explained to them taking into account their background.

PN11

The agreement from the 14-day start was not changed during that time. It was adopted ..... said beforehand. Commissioner, clause 4 contains the dispute settling and prevention procedures and it specifies a nominal expiry date in Part II, clause 8 of the agreement but this one is for two years and not more than three as per the Act. We say there are no provisions in the agreement which are inconsistent with any of the minimum entitlements pursuant to division 3 of Part VIA of the termination of employment of the Act and there is no order for the Commission under that division. We say the agreement does not contain any objection of clauses - objectionable or preference clauses.

PN12

We say the agreement also does not discriminate against any employee because of reasons, including race, colour, sexual preference, etcetera under section 170LU(5). Commissioner, we say that the agreement has a benefit for employees and the employer, and we commend the agreement to you this morning for certification. Unless you have any specific questions of me regarding the agreement or the statutory declaration that really forms the substantive part of my submissions, we seek that the agreement be certified.

PN13

THE COMMISSIONER: Yes, I just had a couple of, well, points of clarification I guess. In clause 4, the dispute settlement procedure, what role is it envisaged that the Commission would pay under step 4 - it talks about referring the matter to the AIRC for settlement.

PN14

MR KLITSCHER: For settlement. That can be either be by conciliation or by arbitration.

PN15

THE COMMISSIONER: Okay, so it is not intended to limit that?

PN16

MR KLITSCHER: Settlement is the end desire.

PN17

THE COMMISSIONER: Yes. The other matter was in 5.5 which deals with working hours, it provides that - or states that the parties have agreed that they will develop a pattern of working ordinary hours to be implemented in a particular way. Is it intended that once agreement is reached in relation to that matter, that the agreement would be varied to reflect that?

PN18

MR KLITSCHER: It may not. It would probably be in writing between the parties through consultation in respect to that.

PN19

THE COMMISSIONER: The only thing I'm thinking about there is what the status of that letter might be in view of the underpinning award, if that has set a particular limit of ordinary hours.

PN20

MR KLITSCHER: Yes, I understand what you are saying. We are confident that, one, that the level of over-award payments would eclipse that in any case and it can only be implemented through agreement. If the parties can't agree then it may well be a matter, or back to the Commission through clause 4.

PN21

THE COMMISSIONER: Look, the point in relation to that is that if the arrangement is outside of this agreement then it won't be measured by the no disadvantage test.

PN22

MR KLITSCHER: Yes.

PN23

THE COMMISSIONER: It will simply be a question as to whether that agreement is more beneficial than the award and, if it is not, then the award may well apply.

PN24

MR KLITSCHER: The order apply, yes.

PN25

THE COMMISSIONER: So it may be that if the parties do reach agreement that it should come back just for the protection of all concerned that it be reflected within the agreement.

PN26

MR KLITSCHER: Yes, sure.

PN27

THE COMMISSIONER: Because I accept that any arrangement under 5.5, taken in conjunction with the wage increases and the other benefits under the agreement would satisfy the no disadvantage test but there may be some problems if it is not reflected back. The only other issue that I had was in relation to clause 12, the termination of the agreement. I'm just wondering, what is intended by that?

PN28

MR KLITSCHER: I guess, if any party commences anything that is contrary to the provisions of the agreement, consistently, then it is open to the other party to seek, through the Commission of course, the agreement be terminated, but only if then the dispute settlement procedure of the agreement has been exhausted. I mean, in the first instance, if there is an allegation of a breach of the agreement then the parties would hope that that can be resolved through the dispute settlement procedures, if not, it goes to the Commission of course, and it may be as it currently exists in the Act for any party to make application for the recision of the award. I understand the application has to be made to the Commission.

PN29

THE COMMISSIONER: Yes. I'm just wondering in particular, there are some issues about who can apply to the Commission and in the life of the agreement the employees don't have the right to apply under the Act to terminate the agreement is one point, but when it talks about the dispute settlement procedure, if this agreement has been exhausted, it just strikes me that if there is a dispute, it goes to the Commission, the Commission settles the matter by conciliation or through arbitration.

PN30

MR KLITSCHER: Yes.

PN31

THE COMMISSIONER: Does that then become a trigger to terminate the agreement?

PN32

MR KLITSCHER: It may well do, I mean, that is open to any party at any time. I mean, with the employees - - -

PN33

THE COMMISSIONER: But it is not open to any party, that is my point. It is only open to the employer.

PN34

MR KLITSCHER: Well, the employees may enlist the union, if they are a member of the union, to take the matter on their behalf.

PN35

THE COMMISSIONER: Yes, but unless there is - under section 170 - I think it is division 4 or 5 - division 7 - section 170MG deals with a situation where an agreement - there is an application for termination of an agreement during its life and that can only be made by an employer, or an organisation who is bound by the agreement. The employees can certainly make application after the normal expiry date of the agreement and, also, there is a separate section, section 170MHA, which makes provision for the termination of an agreement in a way provided under the agreement, but again that is under the normal expiry date and that also allows an individual employee or group to make application.

PN36

MR KLITSCHER: Yes.

PN37

THE COMMISSIONER: I am just wondering if there is a dispute between the parties that is not connected to subclause (a), does that become a trigger to terminate the agreement?

PN38

MR KLITSCHER: No, I wouldn't have thought so.

PN39

THE COMMISSIONER: Okay.

PN40

MR KLITSCHER: No. I can seek some instructions on that, if you so desire, Commissioner.

PN41

THE COMMISSIONER: Look, it might be helpful if I hear from Ms Kaech and also Mr Bierenboim, just about what their understanding in relation to that was.

PN42

MR KLITSCHER: I think it certainly was a feature of the last agreement.

PN43

THE COMMISSIONER: This is to roll-over.

PN44

MR KLITSCHER: Roll-over.

PN45

THE COMMISSIONER: Yes, could you just stand up, just so the microphone picks up - - -

PN46

MS KAECH: Yes, Commissioner.

PN47

THE COMMISSIONER: What is your understanding?

PN48

MS KAECH: Well, as Barry explained I think it is just a roll-over from the previous agreement where that was reached with consultation with the unions.

PN49

THE COMMISSIONER: Yes, but what does it mean? What is it intended to do? What was the thinking behind it?

PN50

MS KAECH: I think our understanding is, in the first place, what is under the dispute settlement procedure that it will be - if we can't reach a settlement, or a favourable outcome that it will be referred to the Commission and the Commission will arbitrate or - - -

PN51

THE COMMISSIONER: Yes, but that is not what clause 12 deals with.

PN52

MS KAECH: No, I understand that.

PN53

THE COMMISSIONER: Look, if we are going to have a provision in an agreement we just need to be clear what it means.

PN54

MS KAECH: What it means, yes.

PN55

THE COMMISSIONER: So there is no dispute about it. So all parties are on fours - - -

PN56

MS KAECH: I wasn't aware that actually the employees haven't got a right to apply under that, so I'm happy for Barry - - -

PN57

THE COMMISSIONER: But what was the company's - be that as it may, what did you - what were you trying to achieve in clause 12?

PN58

MS KAECH: In this?

PN59

THE COMMISSIONER: Yes.

PN60

MS KAECH: I think it is just a standard format that was left in there.

PN61

THE COMMISSIONER: Okay, and were you involved in the first agreement?

PN62

MS KAECH: Yes.

PN63

THE COMMISSIONER: Yes, and do you have any recollection why that clause was put in, in the first time around?

PN64

MS KAECH: Probably for the same reason, that it was taken over from the format that was recommended by the union at that stage.

PN65

THE COMMISSIONER: Okay. Mr Bierenboim?

PN66

MR BIERENBOIM: Yes, ma'am.

PN67

THE COMMISSIONER: Were you a representative of the employees in the process of approval of this agreement?

PN68

MR BIERENBOIM: Yes, ma'am.

PN69

THE COMMISSIONER: Yes. What is your understanding of clause 12, what do you think - what work does it do in your view?

PN70

MR BIERENBOIM: Well, they did ..... anybody else in the workshop. They have two weeks to look at that, nobody came to complain about anything so - - -

PN71

THE COMMISSIONER: Does anybody understand it though?

PN72

MR BIERENBOIM: Look, I don't know word-by-word but we don't have a problem with the agreement.

PN73

THE COMMISSIONER: Yes, but what do you understand clause 12 to mean?

PN74

MR BIERENBOIM: No, I didn't pay attention much to this paragraph, yes.

PN75

THE COMMISSIONER: It is just that I mean part of my role is to make sure that when an agreement goes up that it is genuinely consented to by the employees, which means they understand exactly what they are voting on.

PN76

MR BIERENBOIM: Yes.

PN77

THE COMMISSIONER: If clause 12 is a bit of a mystery to all the parties, then that does create a bit of a concern for me, because this becomes a legally binding clause, which means that one party or another - either the parties present here today, or any other employees, or any new employee, or indeed any new company that may take over can seek to invoke this clause if they choose, given certain circumstances which aren't clear to me and that creates a bit of a problem. Okay, thank you for that.

PN78

MR KLITSCHER: Of course, Commissioner, just following from that if I may, if an employer - the employer, or another employer attempted to invoke that provision, of course, they would have to be able to demonstrate that somebody has breached the agreement consistently.

PN79

THE COMMISSIONER: Or, they just show that the dispute settlement procedure has been exhausted.

PN80

MR KLITSCHER: Yes. Well, once again, that would have to be demonstrated.

PN81

THE COMMISSIONER: Yes, I mean, I'm just wondering why would - you have got a whole range of conditions in this agreement, including rates of pay which you know obviously are quite beneficial to the employees and a number of other conditions. Why would the fact that the parties genuinely and properly invoke a dispute settlement procedure be a trigger to remove all those conditions?

PN82

MR KLITSCHER: I can't answer that. It certainly wasn't a clause our union .... in documents, no, it probably goes back to that. Now, for the purpose of this exercise today, well, I will be totally have to be guided by you as to what you want to do with respect to that. The parties themselves don't see it as a problem. You have highlighted something that may or may not happen in the future and if that is an impediment to certify the agreement, then we will be guided by what your position is on that.

PN83

THE COMMISSIONER: I mean, it seems to me that the parties have - certainly the employer has the right to apply to have the agreement terminated in its life and, in those circumstances, the employees have to agree in order for it to be terminated, and once the agreement is expired then either party, the employees or the employer, can make application to have the agreement terminated. So the Act provides the option for the parties to do that.

PN84

MR KLITSCHER: Yes.

PN85

THE COMMISSIONER: I'm just wondering, is there a benefit in actually keeping that clause in there if nobody is quite clear what it is designed to do?

PN86

MR KLITSCHER: There is probably no benefit.

PN87

THE COMMISSIONER: Well, if that is the case we could amend - I mean, if you are happy with that and all the parties are happy with that, we could just take that clause out, delete it.

PN88

MR KLITSCHER: Yes.

PN89

THE COMMISSIONER: Personally, from my perspective, I think the agreement would be a document that is much - well, reduces the chances of a dispute arising because there is a clause here that people aren't quite clear about.

PN90

MR KLITSCHER: It may well reduce the chance of a misunderstanding later.

PN91

THE COMMISSIONER: Yes. You know, parties rights are preserved to seek to terminate the agreement if the requirements of the Act are met. All right, well, if the parties are happy with that course of action.

PN92

MS KAECH: I'm happy.

PN93

THE COMMISSIONER: Yes.

PN94

MR BIERENBOIM: Very happy, yes.

PN95

THE COMMISSIONER: All right, well, look, the agreement will be so amended by deleting clause 12, termination of the agreement.

PN96

MR KLITSCHER: Commissioner, do you want us to supply you with another document or - - -

PN97

THE COMMISSIONER: Yes, that would be helpful, Mr Klitscher, if you are able to do that.

PN98

MR KLITSCHER: That will just be without that clause and the contents page.

PN99

THE COMMISSIONER: Yes.

PN100

MR KLITSCHER: We will do that. Can I do that by electronic means?

PN101

THE COMMISSIONER: Yes, that is probably helpful. Good, thank you. Yes, Mr Kaech, or Mr Bierenboim, is there anything further that you wanted to say about the agreement?

PN102

MS KAECH: Commissioner, I'm happy with the amendments that you have proposed and I've got nothing further to add, thank you.

PN103

THE COMMISSIONER: Thank you.

PN104

MR BIERENBOIM: No, Commissioner, I spoke with all the people in the workshop, everybody happy.

PN105

THE COMMISSIONER: They are happy with the agreement.

PN106

MR BIERENBOIM: They have time to tell me if they are not or - I didn't hear anything so everybody is happy.

PN107

THE COMMISSIONER: Okay. All right, thank you. Yes, look, I've had the opportunity to peruse the agreement, also the statutory declarations provided by the parties and having heard the submissions today, I'm satisfied that the agreement as amended meets all the statutory requirements, that it meets the no disadvantage test, it contains the various clauses required by the Act, including the dispute settlement procedure, that the term of the agreement is less than the maximum prescribed by the Act and that the negotiation and consultation process adopted also accords with the requirements of the Act.

PN108

Pursuant to section 170LT, I will therefore certify the agreement as amended by the deletion of clause 12, termination of the agreement. The agreement will operate by agreement between the parties from 10 December 2003 and have a nominal expiry date of 9 December 2005, being a period of two years. The agreement is binding on Swiss Joinery Pty Ltd and/or Nominees and its employees employed under the parent award, which is the Furnishing Industry National Award 2003, and a certificate will be issued to the parties in due course. Also, I would just ask the parties to keep in mind my comments in relation to the working hours, that it may be efficient for the parties to give effect to any agreement reached under that clause by varying this agreement to reflect that. Thank you.

ADJOURNED INDEFINITELY [11.49am]