AG2004/7178, Transcript of Proceedings [2004] AIRCTrans 4350 (11 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 2435

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/7178

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Others for
certification of the ADCHEM Enterprise
Bargaining Agreement 2004

ADELAIDE

11.59 AM, TUESDAY, 2 NOVEMBER 2004

PN1

MR B. KLITSCHER: I appear on behalf of ADCHEM Proprietary Limited. With me is MR S. KIBBLE, Operations Manager.

PN2

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

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. I note the AWU are a party to this agreement but my associate has been unable to contact them to ascertain their intentions with respect to this hearing. I may not be able to conclude consideration of the agreement without obtaining some advice from the AWU relative to certain matters but let us see how far we can get. I can advise the parties that I have read both the statutory declarations and indeed the agreement itself. Mr Klitscher, the immediate question that arises is that it appears the application was lodged some 4 days outside of the time frame set in section 170LM. Are you able to provide me with a reason for this and information relative to the status of the workforce?

PN4

MR KLITSCHER: Yes, sir. The reasons for the late lodgment, it appears that at some stage the documents were lost and couldn't be found and the company and the unions had to sign a fresh copy of the agreement which was identical to the one originally signed and identical to the one that is before you now. Sir, I'm advised by the company there has been no change to the structure of the workforce when the agreement was agreed to and the lodgment of the application.

PN5

THE SENIOR DEPUTY PRESIDENT: Very well. I will use the discretion inherent in section 111(1)(r) of the Act to extend the time frame for lodgment of the application.

PN6

MR KLITSCHER: Thank you, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Klitscher, that takes me then to the agreement itself, unless there is anything that you want particularly to say about the process that was followed. I don't have any other questions on that process.

PN8

MR KLITSCHER: No, I don't.

PN9

THE SENIOR DEPUTY PRESIDENT: Now, Mr Emmerson, I will direct my questions to Mr Klitscher but please feel free to hop up and tell me if you want to add anything to his responses.

PN10

MR EMMERSON: Yes, Commissioner.

PN11

THE SENIOR DEPUTY PRESIDENT: My questions do not invite the parties to rewrite the document at all.

PN12

MR KLITSCHER: I will do my best to answer your questions, your Honour, bearing in mind it is an AWU application for certification.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, there seem to be some difficulties in that regard.

PN14

MR KLITSCHER: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Klitscher, I will ask you these questions but at this point I must say that I'm not sure that we are going to be able to complete the process. What I have in mind is that I might be able to ask the parties various questions, hear the responses that you, Mr Klitscher, and you, Mr Emmerson, might care to make about those responses and then adjourn the matter so that the AWU have the opportunity to read the transcript and provide written responses that would be provided to both the Commission and to the employer and the AMWU. Alternatively, the AWU may request an alternative hearing date.

PN16

MR KLITSCHER: Your Honour, if it assists the Commission, of course, we have Mr Kibble who was present at the negotiations or throughout the negotiations and may be able to help you with information as well.

PN17

THE SENIOR DEPUTY PRESIDENT: That may well be the case but I don't think I could take Mr Kibble's responses as being representative of the AMWU.

PN18

MR KLITSCHER: Certainly not, but may be by way of explanation.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. Now, clause 1.6 is headed: No Precedent. To what extent or how should I regard that particular clause, particularly in the context of the recent High Court decision in Electrolux?

PN20

MR KLITSCHER: Sir, in respect to firstly ADCHEM this has been a feature of their agreements. I know that can be set aside or it does not make it right in light of the High Court decision but certainly what it does and has always intended to do is that it protects the parties, that is the employer and the employees, in respect to ADCHEM themselves in that it is not caused as a precedent. So we say it does pertain to the relationship. It talks about the arrangement that has been entered into between the employer and the employees and then said that arrangement now will not cause a precedent. So it may be that an employee who perhaps worked for ADCHEM goes and works somewhere else and said: well, I had the same ministry, I had those conditions at ADCHEM, they ought to apply here. We are saying that is not to be used as a precedent. I think in a less formal way it pertains to the relationship.

PN21

THE SENIOR DEPUTY PRESIDENT: Clause 1.7 he has entered no further claims. The first of the dot points in clause 1.7 says that the parties will not pursue any extra wage claims whether award or over award. Now, the agreement is to be read and interpreted wholly in conjunction with the Metal Industry Award.

PN22

MR KLITSCHER: And the Salt Industry one. There's two awards underpinning the agreement.

PN23

THE SENIOR DEPUTY PRESIDENT: I'm only looking at clause 1.4, Mr Klitscher.

PN24

MR KLITSCHER: It says that the ADCHEM Australia Proprietary Limited Award is an award of the State Commission.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. Now, the particular reference to the Metal, Engineering and Associated Industries Award, should I take clause 1.7 on its plain words as meaning that the parties will not pursue any extra wage claims under that award because that is, simply put, what I think it says.

PN26

MR KLITSCHER: What I put to you, sir, is that this agreement provides for certain wage increases which have been claimed and negotiated by the unions and the employer and the employees and that is it during the life of this agreement. There won't be any other wage claims to do with this agreement based on either - whatever moves in the award or indeed over-award payment. So in addition to this agreement there cannot be a claim to pass on, say, the 2005 National Wage Case increase when the rate is adjusted. So there are no claims for this enterprise - during the life of this agreement.

PN27

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Clause 3.2 relates to the avoidance of industrial disputation. In the second paragraph both the state and federal legislation in some form is referenced. At clause 3.2.5 it talks about an unresolved matter being referred by the parties to the relevant Industrial Relations Commission for settlement. There are two questions relative to that 3.2.5. Firstly, which Tribunal or to which Tribunal are matters in dispute under this agreement to be referred and what do the parties say about the role of that Tribunal? I should perhaps say there's no right answer except that I think it is important that the parties have a consistent view.

PN28

MR KLITSCHER: Sir, in reply to - or the answer to your first question, the relevant Industrial Relations Tribunal will be decided by the parties who are party to the dispute finding. I've used the word "party" but if, say, it is a dispute in relation to employees or an activity associated with the state award of the employer, then I would assume and I don't want to presume or assume what the parties will decide, the parties may well decide the relevant Tribunal in that case is the State Industrial Relations Commission. If it is a matter pertaining to work that is covered by the Federal Metals Award the parties may decide that the relevant Tribunal is this Tribunal.

PN29

THE SENIOR DEPUTY PRESIDENT: If it happened to cover both groups of employees then tell me how it is that I should understand this to be a dispute resolution provision that would not by itself be the subject of disputation. I should indicate to you that I have some fairly clear views that the dispute resolution process must be something that is set out and agreed between the parties.

PN30

MR KLITSCHER: One of the processes pretty well set out in this clause - it is when it gets down to where it can't be resolved, I think, I think the process is clear, where it can't be resolved and you may well be right, it may well be that the parties agree that for each relevant section of the enterprise the relevant Tribunal will be notified of a dispute. So that it may well be a dispute notification to this Tribunal, this Commission and there may well be at the same time a notification of a dispute to the State Industrial Relations Commission.

PN31

THE SENIOR DEPUTY PRESIDENT: Mr Klitscher, given that I'm going to give the AWU an opportunity to respond to the questions that I'm raising, I'm going to leave that matter with the parties. The two questions that I'm asking there go to which Tribunal and the role of that Tribunal.

PN32

MR KLITSCHER: Yes. I haven't answered your second question. The role of the Tribunal, we say, would be to use its best endeavours to resolve the dispute and we as a company, as far as the company is concerned, we would say that would be to accept a recommendation, or if it can't be resolved there ultimately arbitration.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. That is an employer view. What I'm saying is I will give the parties the opportunity to talk about that matter. Now, can I just take you back to 3.2.2 for a moment. There is one other question there that is within the domain of the employer. Are you able to advise me that if an employee is not a member of a particular union, whether it be the AMWU or the AWU, or indeed not a member of any union at all, the capacity exists for that employee to be represented by a person or a representative of their choice?

PN34

MR KLITSCHER: Yes, sir.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.2.10 relates to employee accountability procedures. It references a policy position. Should I understand that policy is documented, that it is readily available to employees and that it may be changed over the life of the agreement?

PN36

MR KLITSCHER: Yes.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 5.5.2 references the personnel policy entitled: Superannuation for Employees. Once again should I understand that that is a documented policy readily available to employees and one that may be changed over the life of the agreement?

PN38

MR KLITSCHER: Yes, sir.

PN39

THE SENIOR DEPUTY PRESIDENT: Clause 6.2 relates to flexible rostering. How should I take the words "a roster will be developed by consultation and mutual agreement" in the context of the requirement set out in section 170LI for the agreement to be expressed in writing?

PN40

MR KLITSCHER: I think the agreement refers to a workers' committee and that would be the forum for not only this but many other aspects of the employer's business that may arise from time to time. That work committee will be used as the form to develop a mutual agreement to whatever the matter is in this particular case, the roster.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 9.1 relates to skill enhancement and the introduction of new technology. The third dot point in that first paragraph once again references the National Metal and Engineering Competency Standards. Those standards are documented but should I understand that they are available to employees on request?

PN42

MR KLITSCHER: Yes.

PN43

THE SENIOR DEPUTY PRESIDENT: The next paragraph references training arrangements and a company training policy. Again should I treat that in the same way as the other policies?

PN44

MR KLITSCHER: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Clause 11.1 relates to trade union training. To what extent should I regard this as a matter pertaining to the employment relationship? I have noted the conclusion arrived at by Vice President Ross relative to trade union training leave, such that Vice President Ross in Ballantyne determined that the leave component of the arrangement allowed recognition of the arrangement as a matter pertaining. I do invite you to comment on that because there exists the potential for alternative use.

PN46

MR KLITSCHER: Yes. Your Honour, once again this has been a feature of enterprise agreements between the unions and the company over a long period of time and it has benefited both, particularly those employees who are members of the trade union, insomuch as learning the skills or picking up skills of communication in industrial relations. In other words, honing people's skills to be able to communicate and have better industrial relations between themselves and their employer. Now, how you quantify that I'm not sure but it certainly has been of benefit to those who have attended and we say if anything improves or enhances the relationship between an employer and employee, it certainly pertains to the relationship.

PN47

MR EMMERSON: If I may, Commissioner?

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Emmerson?

PN49

MR EMMERSON: I totally agree with what Mr Klitscher has just stated before. It is a mechanism for the delegates and the members to be able to understand a disputes resolution procedure. We believe it to be a very important aspect because if they don't understand a disputes resolution procedure it can cause all sorts of grief and chaos amongst the workplace and we believe it to be of beneficial assistance to the employers and the employees alike. Like you said yourself, Deputy President Ross has also found that it does pertain in certain circumstances and we can also provide further submissions to yourself if you so require those submissions.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, that concludes the questions I have, Mr Klitscher. What I propose to do in this matter is to indicate to the parties that whilst it is approaching the matter in a backwards sense, there is nothing currently before me that indicates that the agreement was reached through a process other than that set out in section 170LJ of the Act. There is nothing currently before me that raises questions relative to whether or not the agreement should be certified insofar as those questions are drawn from the provisions of sections 170LT and LU of the Act.

PN51

What I propose to the parties is that all three parties will have an opportunity of, let us say, a fortnight from today to peruse the transcript of these proceedings and respond to my questions in writing. If any of the parties request, either individually or collectively, during this 2-week period a further hearing, then I'm happy to schedule a further hearing. Otherwise I will simply look at any written material that may or may not be provided to me.

PN52

I should indicate that if the AWU do not respond at all, because of their non attendance today that may well prejudice certification of the agreement. The employer and the AMWU have the election as to whether or not they want to add anything further to the various issues or responses to the various issues that I have raised today. So it is an option from the employer's point of view and an option from the AMWUs point of view. It is not quite such an option for the AWU.

PN53

Now, if on the basis of that written material I am able to certify the agreement then I will do so from the date upon which I receive the last of those written responses. If I can't do so then I will set out the reasons why I have adopted that position. Are you happy with that approach, Mr Klitscher?

PN54

MR KLITSCHER: Your Honour, you require a written response to the questions. Are they the questions that you have asked or will you raise questions - - -

PN55

THE SENIOR DEPUTY PRESIDENT: They are the questions that I've asked, Mr Klitscher, and to make it clear, I'm not requiring a written response from the employer, I'm simply expressing that as an option. I'm requiring a written response from the AWU.

PN56

MR KLITSCHER: I was just going to ask that question. Thank you.

PN57

MR EMMERSON: Without sounding stupid, Commissioner, obviously we wouldn't have to answer those questions either?

PN58

THE SENIOR DEPUTY PRESIDENT: No, let me make it absolutely clear. It is entirely optional, Mr Emmerson, from your point of view.

PN59

MR EMMERSON: I see, yes. I understand.

PN60

THE SENIOR DEPUTY PRESIDENT: I do need some form of response from the AWU. I have understood with respect to the AMWU that you have in effect agreed with all of Mr Klitscher's responses. I'm simply indicating that if you want to add anything to those responses that is a matter for your prerogative.

PN61

MR EMMERSON: Thank you, Commissioner.

PN62

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

ADJOURNED INDEFINITELY [12.20pm]