AG2004/4835, Transcript of Proceedings [2004] AIRCTrans 4470 (18 November 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 2461

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4835

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Clipsal Integrated Systems Pty Ltd and Another
for certification of the Clipsal Integrated
Systems Pty Ltd Enterprise Bargaining Agreement
2005

ADELAIDE

9.30 AM, TUESDAY, 9 NOVEMBER 2004

PN1

MR A.E. MARKIEWICZ: I appear on behalf of the company, and with me from the company, MR M. BALL and MR G. TAARNBY, employee representative.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I have read the agreement and I have read the statutory declarations. I have noted that the parties have provided me with a copy of the notice of intention. Mr Markiewicz, relative to the process that was followed, can I just clarify the answer given in paragraph 4.1 of the statutory declarations?

PN3

The Consultative Committee of employee representatives was elected to act on behalf of the employees. Now, should I take it then that those employee representatives constituted the Consultative Committee?

PN4

MR MARKIEWICZ: Yes, sir.

PN5

THE SENIOR DEPUTY PRESIDENT: Further, that there was no request at all from a union to be involved in discussions about this agreement?

PN6

MR MARKIEWICZ: No, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: Nor indeed to be made party to it.

PN8

MR MARKIEWICZ: Certainly nothing that the company has been informed or any indication from the employees of any indication of a union being involved.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, Mr Taarnby, you are a member of that Consultative Committee, are you?

PN10

MR TAARNBY: I am, Commissioner.

PN11

THE SENIOR DEPUTY PRESIDENT: You can confirm that to the best of your knowledge there was no request for a union to be involved in the process

PN12

MR TAARNBY: That is correct, sir.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Taarnby, I am going to ask Mr Markiewicz some questions about the agreement itself. Do you have a copy of the agreement with you?

PN14

MR TAARNBY: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: My questions do not invite him to change the agreement in any way. They simply go towards clarifying the intention of the parties. Now, if you want to comment on any of Mr Markiewicz's responses to me, please feel free to hop up and do just that. Otherwise I will take it that you are in agreement with him.

PN16

MR TAARNBY: Sir.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Markiewicz, with reference to clause 3, which is the application clause, I am conscious that I have two Clipsal related agreements that are being dealt with this morning. How does Clipsal Integrated Systems Proprietary Limited inter-relate with the other Clipsal function?

PN18

MR MARKIEWICZ: Sir, they are related companies but they are separate legal entities.

PN19

THE SENIOR DEPUTY PRESIDENT: I see. Now, clause 5, which is the date of period of operation, proposes that the agreement in effect be certified from 17 January 2005 for a period of 3 years but when read in concert with clause 8 I would understand that the parties intend there to be a wage increase to apply from 11 October.

PN20

MR MARKIEWICZ: Correct, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: Now, that would clearly not be an enforceable wage increase until such time as the agreement was certified. Is that what the parties intend?

PN22

MR MARKIEWICZ: Yes, sir. Sir, as the Commission is probably aware, there are a number of related company agreements and most of those have gone through the particular process that pertains to the certification and having a particular increase. There are a couple, this being one, that have had, if you like, a lag in terms of going through the negotiations with the particular employees and that is the historical situation that has occurred.

PN23

The employees in particular were looking at having something more akin to the rest of the particular employees. So the company has negotiated a particular agreement with them whilst the current agreement is still going through. They are saying okay, we will allow the current agreement to expire at its nominal expiry date and then have the new agreement coming in place but as a result of their particular requests the money increases that have been afforded to other employees have also been afforded to those employees.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. In terms of clause 8 do you have a wages schedule that you can provide to me?

PN25

MR MARKIEWICZ: We do, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: Perhaps before you do that, has that been shown to Mr Taarnby? Is that an agreed document?

PN27

MR MARKIEWICZ: He does have a copy.

EXHIBIT #C1 WAGES SCHEDULE

PN28

THE SENIOR DEPUTY PRESIDENT: Presumably those classifications link directly back to the Metal Industry Award classifications.

PN29

MR MARKIEWICZ: Yes, sir.

PN30

THE SENIOR DEPUTY PRESIDENT: Just bear with me for one moment, Mr Markiewicz. Yes, now, thirdly relative to clause 8, the third 4 per cent wage increase proposed to apply from 11 October 2006 could, as I understand it, be increased if presumably the general CPI index for the year ending June 2006 is greater than 4 per cent. Should I understand that in that event the increase that would apply would reflect the higher CPI increase and would apply from 11 October 2006?

PN31

MR MARKIEWICZ: That is correct, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you then to the appendix A, which is the objectives of the agreement, but in particular to clause headed: D, on page 6? I am not quite sure how I should better characterise it but it is a clause headed: Maintenance Management. The last paragraph in that clause says that one of the methods is to set goals and measure performance against these goals.

PN33

It goes on to talk about what those goals might include. Should I understand that the parties intend that that aspect of the agreement would allow for a goal-setting process and a measurement process but that the agreement does not link any conditions or wages benefits with the achievement or maintenance of those goals?

PN34

MR MARKIEWICZ: That is correct, sir.

PN35

THE SENIOR DEPUTY PRESIDENT: Over the page on page 7, sub-clause (h) is headed: Product Loss Reduction Program. Now, that references Clipsal Australia Proprietary Limited not Clipsal Integrated Systems Proprietary Limited. So should I understand then that the intention is to have regard to the overall parent or holding company?

PN36

MR MARKIEWICZ: Yes, sir.

PN37

THE SENIOR DEPUTY PRESIDENT: If I can take you to page 8, to the clause headed: Time off in lieu; and subclause (i) is headed: Overtime. That also references Clipsal Australia Proprietary Limited in the sense that an employee may make arrangements with that corporate entity to work time outside of the ordinary hours. Given that I understand that Clipsal Australia Proprietary Limited are a different corporate entity to Clipsal Integrated Systems Proprietary Limited, what is the intention of the parties relative to overtime arrangements and time off in lieu?

PN38

MR MARKIEWICZ: Sir, in terms of that, that deals with the Clipsal Australia Proprietary Limited administration which also does the administration on behalf of Clipsal Integrated but they are - they do the particular payroll and they are part of Clipsal Australia Proprietary Limited.

PN39

THE SENIOR DEPUTY PRESIDENT: I see. So for that purpose should I be regarding them as the one entity or are they two - - -

PN40

MR MARKIEWICZ: Certainly they are the ones who do the payroll and do the administration of the payroll. So for all the practical purposes, yes, sir.

PN41

THE SENIOR DEPUTY PRESIDENT: I see. Now, if I can then take you to clause 6 on page 9, which is headed: Hours of Work and Spread of Hours. Should I understand then that the possibility exists for 12-hour days to be worked by agreement but again within the context of the 38-hour seek set out in the award?

PN42

MR MARKIEWICZ: Yes, sir.

PN43

THE SENIOR DEPUTY PRESIDENT: On page 10, clause 9 relates to manufacturing training statement. How should I understand the intention of the parties with regard to the last paragraph or sentence in clause 9?

PN44

MR MARKIEWICZ: Again, that is basically a statement which reflects the overall situation in terms of looking at the benefit to the employees and is related to the clause in general.

PN45

THE SENIOR DEPUTY PRESIDENT: I see. So it is simply a goal statement.

PN46

MR MARKIEWICZ: Yes, sir.

PN47

THE SENIOR DEPUTY PRESIDENT: In the same way should I regard the first sentence in clause 10, which is headed: Self Inspection?

PN48

MR MARKIEWICZ: Yes, sir.

PN49

THE SENIOR DEPUTY PRESIDENT: Clause 12 relates to journey accident income protection. Are you able to advise me of the terms and particularly the agreed level of income, accident income protection insurance and the duration of that cover?

PN50

MR MARKIEWICZ: It is coverage that covers it for a TU period with a maximum of up to $1000 per week ordinary earnings.

PN51

THE SENIOR DEPUTY PRESIDENT: So it is not average weekly earnings. It is ordinary time earnings.

PN52

MR MARKIEWICZ: Yes, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: Is there a waiting period before that insurance applies?

PN54

MR MARKIEWICZ: No, sir.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 16 on page 11 relates to competency standards. First of all should I understand that the parties intend that those national metal and engineering competency standards will be implemented during the life of this agreement or is there a more particular timeframe the parties have in mind?

PN56

MR MARKIEWICZ: Sir, in terms of that, it is within the lifetime. There has been some particular process which has taken place previously and it is a continuing process.

PN57

THE SENIOR DEPUTY PRESIDENT: Secondly relative to the same clause, are those national metal and engineering competency standards readily available to employees on request?

PN58

MR MARKIEWICZ: Yes, sir.

PN59

THE SENIOR DEPUTY PRESIDENT: Clause 18 relates to drug and alcohol policy. Should I take it the reference should be to appendix B?

PN60

MR MARKIEWICZ: Yes, sir, it is a typographical error.

PN61

THE SENIOR DEPUTY PRESIDENT: A final question that is drawn from that appendix B, the definition of employee and employees on page 15 talks of agents or subcontractors. Notwithstanding that definition, does appendix B in the context of this agreement establish any obligations on those agents or subcontractors that are so defined?

PN62

MR MARKIEWICZ: No, sir.

PN63

THE SENIOR DEPUTY PRESIDENT: It doesn't.

PN64

MR MARKIEWICZ: I will just double-check on that, sir. Sir, it is only an indication in terms of any contractors as a guide, not an obligation.

PN65

THE SENIOR DEPUTY PRESIDENT: I see. So in effect what the agreement is doing is calling up appendix B which is a generic policy which has application to employees, contractors and agents and it is calling it up in the context of its relevance to its employees. Is that a fair assessment?

PN66

MR MARKIEWICZ: Yes, sir, correct, sir.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Markiewicz. Mr Taarnby, do you want to add anything or can I take it that you are in agreement with Mr Markiewicz's responses?

PN68

MR TAARNBY: Yes, I am in agreement, sir.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me I am satisfied that this agreement is of a character described by section 170LI of the Act, that the process followed relative to this agreement is consistent with the requirements of section 170LK of the Act. Further, that the agreement itself meets the pre-requisite requirements necessary for certification insofar as they are set out in sections 170LT and LU of the Act.

PN70

I will certify the agreement with effect from 17 January 2005. The certificate will be sent 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 incorporate the answers that I have been given because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and the employees. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [9.47am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 WAGES SCHEDULE PN28