AG2004/7184, Transcript of Proceedings [2004] AIRCTrans 4524 (23 November 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 2488
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2004/7184

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by TXU Torrens Island Pty Limited and
Others for certification of the TXU Torrens
Island Pty Limited Enterprise Agreement 2004

ADELAIDE

2.45 PM, THURSDAY, 11 NOVEMBER 2004

PN1

MR P. TANNER: I seek leave to appear on behalf of the applicant, SPI Torrens Island Pty Ltd. I appear with MS MORNA YOUNG.

PN2

MR A. WHITE: I appear on behalf of the Australian Services Union.

PN3

MR R. DONNELLY: I appear on behalf of the CEPU Electrical Division of South Australia.

PN4

MR N. LLEWELLYN-JONES: I appear on behalf of the Australian Worker's Union, South Australian Branch.

PN5

MS J. SMITH: I have no objection to the appearance of Mr Tanner. May it please the Commission.

PN6

MR E. GREW: I appear on behalf of the Association of Professional Engineers, Scientists and Managers Australia.

PN7

THE COMMISSIONER: Is there no other objection to Mr Tanner appearing? Leave granted, Mr Tanner. Mr Tanner, are you going to speak to this?

PN8

MR TANNER: Yes, there are a couple of preliminary issues, I guess, in this matter. As the Commission will be aware, the application was filed 2 days outside the 21 day limit imposed for the making of applications following the approval of the agreement. I would wish to address that initially. The agreement, of course, as the Commission will be aware, was made during the period leading up to the Electrolux decision of the High Court. Shortly thereafter there were decisions, other decisions of this Commission, in relation to matters that pertain to the relationship between the employer and the employee which may impact upon this agreement.

PN9

The essential reasons for the application being a couple of days late really relate to the confusion of the parties in the immediate aftermath of those decisions, or in particular of the Electrolux decision. The ability of the parties, of the union parties as I understand from speaking to Mr Austin, of getting together with their key members to discuss the issues, given that Torrens Island Power Station is a continuing shift operation. I think that was further hampered by the fact that 4 October was a public holiday.

PN10

In that regard, I make application to the Commission to exercise its discretion pursuant to section 111(1)(r) to extend the time for the application and in support of that, I would say that the vote in favour of the agreement amongst the 120 odd employees at Torrens Island was unanimous. Since the vote which took place in the week leading up to 5 October, only two staff movements have occurred at Torrens Island. One was that a new employee joined - a new employee who would be covered by the agreement joined the employment at the Torrens Island on Monday, 1 November.

PN11

But the recruitment process occurred in September and he was actually given a copy of the proposed agreement and accepted his employment in full knowledge of the contents of that agreement. One employee resigned in mid October to formally retire from the workforce. So out of 120 odd employees, they are the total sum of the workforce movements that would have been effected by it.

PN12

THE COMMISSIONER: I think about 145 employees worked there.

PN13

MR TANNER: Yes, sorry, I am a bit out of date. I didn't add up those numbers.

PN14

THE COMMISSIONER: Yes, but what you are saying is that in the relevant period, first of all it was a unanimous vote.

PN15

MR TANNER: Yes, and there are only two movements.

PN16

THE COMMISSIONER: Only two staff movements, otherwise the reason for the delay as you have explained, I think the extension of time, Mr Tanner, is the least of your problems there.

PN17

MR TANNER: Thank you, sir.

PN18

THE COMMISSIONER: I will hear from the others in a moment but I don't think there is an issue there.

PN19

MR TANNER: Now, a couple of other machinery matters. In some of the statutory declarations, if I can refer to clause 7.7.1 of the form, R27 statutory declarations, there was a reference to appendix 3, clause 2 as being the dispute settling procedure. In fact, that is a typographical error. It should be 12.

PN20

THE COMMISSIONER: Yes, 12. Yes, I think one got it right. Mr Gerrity's statutory declaration got it right.

PN21

MR TANNER: Now, there is another intervening event which we will address, if the Commission pleases. In the last few days, the name of the employer has changed from TXU Torrens Island Pty Ltd to SPI Torrens Island Pty Ltd. Now, that will cause my client to, I think, seek to change the name of the agreement and the reference to the company. It is, in fact, the same company. So the employing entity remains the same. It has the same ABN, SPI Torrens has the same ABN as TXU Torrens. There has recently been a change in ownership of the business.

PN22

I will address that issue with my client after this hearing and it may be that the parties provide fresh copies of the agreement if the Commission thinks that is the appropriate way to go.

PN23

THE COMMISSIONER: What would the normal procedure be under the Act for that?

PN24

MR TANNER: Well, it is quite unusual because normally the agreement would be in place and the transmission of business provisions of the Act would therefore apply. But here we are seeking to certify a fresh agreement and in the few days leading up to it, I think the company remains the same. It is simply a cosmetic matter but my client would certainly rather see SPI Torrens rather than TXU Torrens on an important document like the certified agreement. As I said, there is no change in the actual legal entity. It remains the same company. It is just the same company with a slightly different name.

PN25

THE COMMISSIONER: Interesting point but, yes, I will have a think about that.

PN26

MR TANNER: So we will seek to address that after this. Now, aside from those issues, if the Commission pleases, the applicant relies upon the statutory declaration of Ms Young as filed in the Commission on 28 October. The company is aware that there may be issues that the Commission will have with certain clauses in this agreement. The company's position is that it negotiated this agreement in good faith with the unions and it is supportive of being bound by the provisions in the agreement.

PN27

Without wishing to prejudge the attitude of the Commission to certain clauses in the agreement, the company's position is that it would like to see the agreement certified as soon as possible and it would expect to work with the Commission and take the Commission's advice in respect to those clauses, then work with the unions in terms of coming to a prompt and appropriate resolution in relation to those issues. I might cut it short there, sir, and allow my friends to make their submissions.

PN28

THE COMMISSIONER: Yes. Well, there are numerous issues I would like to raise with the parties in terms of the substance of the agreement. Perhaps I just might ask, is there anyone else at the bar table who wants to make any comment about the statutory declarations or the application or the comments that - any of the comments that Mr Tanner has made to date. Mr White?

PN29

MR WHITE: Commissioner, we have no objection or issue with the matters that have been put before the Commission by the company and we are supportive of the points that he has made. So rather than repeat them, we would rather continue as you have suggested.

PN30

THE COMMISSIONER: Yes, nothing else you particularly want to raise on the record?

PN31

MR WHITE: No, Commissioner.

PN32

THE COMMISSIONER: Okay. Mr Donnelly?

PN33

MR DONNELLY: Commissioner, we would say we support what Mr Tanner has said, sir. Nothing extra.

PN34

MR LLEWELLYN-JONES: No issue, sir.

PN35

MS SMITH: No issue for us also, sir.

PN36

MR GREW: No issue, sir.

PN37

THE COMMISSIONER: Okay. Well, perhaps we then might - I indicate that, yes, the agreement was probably negotiated at an awkward time. Can I just indicate then - it is probably best we do this on record, some of the issues that I have noted in the agreement. I have made these similar comments to other parties in a couple of other agreements that have been lodged this afternoon.

PN38

I would say this, that having regard to the High Court decision in the Electrolux matter and having regard to subsequent Commission decisions and, in particular, the decision of Vice President Ross in the Ballantyne matter, it is my view whenever agreements come before the Commission that the Commission, certainly I, will not be pernickety about agreements and go looking for problems necessarily.

PN39

But of course one can only approve agreements if one is satisfied that they are in compliance with section 170LI as interpreted by the High Court and as applied by other decisions of the Commission. I particularly would say to the parties that I think the decision of Vice President Ross is - well, I think it is a very good decision. I would, I mean, he is a Vice President and I am a Commissioner, but I think it is pretty comprehensive and I intend to follow that as much as I can.

PN40

As I read the decision of Vice President Ross, it is a decision that takes a fairly, I would say, a fairly reasonably liberal view of the thing. It is not unduly restrictive and frankly, I think that is the appropriate thing for the Commission to do. When an agreement comes before the Commission, I think it is appropriate for the Commission to take as far as it can a facilitative approach. I'm not here to, you know, get my red pen out unnecessarily but one has to have regard, as I say, to the law as it and I have to apply it.

PN41

So with those comments, can I just make these comments about the agreement itself. Firstly, in regard to clause 3 of the agreement, and this is not what I would call an Electrolux related issue but it is just a general issue. Clause 3 is headed, "Relationship of this agreement to parent awards and other relevant agreements". You will note that the agreement is to be read and interpreted in conjunction with three separate awards and four separate enterprise agreements preceding this.

PN42

The only comment I would make is that, you know, I'm thinking of an ordinary employee down there at Torrens Island who is on a mission to find out what his or her wages and conditions of employment are. You say, well, that is fine. It is in the agreement, it is in the agreement, the TXU 2004 agreement. You will also of course need three awards and four other agreements and you will need to read all eight documents in conjunction with one another to actually find out what your entitlements are and hopefully if there is any inconsistency between them, look it is almost impossible for an ordinary employee to work out what their entitlements are.

PN43

I'm finding this with a lot of agreements that come before the Commission lately. The agreements relate to previous agreements and other awards and so on but at the end of the day, ordinary employees have to read this and have to know how their, you know, what provisions cover them. I guess what I'm saying is, while this certainly isn't a show stopper by any means, what I would say to the parties is, as far as you possibly can, if you can consolidate your agreements as they go and you don't have to have an agreement referring to, in this case, the Torrens Island Power Station local enterprise agreement 1994 and the one of 1995 and the one of 1997 and '99.

PN44

As far as you possibly can to consolidate these things, it just makes it easier for the employees. I know it makes it harder for you but it does make it easier for the employees. It probably makes it easier for the Commission too because we don't have so many things to go through and work out. Can I go over the page then to clause 7. Clause 7, "Employment conditions, general terms and conditions of employment" are attached as appendix 3 to this agreement.

PN45

Now, appendix 3 of course is one of those interesting things. We have got a reasonably brief agreement and then the appendix to the agreement is substantially longer than the agreement itself. Frankly, the appendix to the agreement is the real guts of the agreement, I suppose. But I presume by the use of the term, "general terms and conditions of employment", you are also referring to salaries and wages and remuneration generally which, as I see it, is entirely covered in appendix 3.

PN46

MR TANNER: Can I just give a little history with this, if the Commission pleases?

PN47

THE COMMISSIONER: Yes.

PN48

MR TANNER: The old Electricity Trust of South Australia used to have, from memory and Mr Donnelly might be able to tell me if I am wrong, about 12 awards which applied to it. In 1990, it reduced those 12 awards, which were a mixture of State and Federal awards, namely nearly all the employees were covered by Federal Awards. They were negotiated down to two Federal Awards, one a salaries award and one a wages award. In the late eighties, those two awards were reduced into one single award for all the employees at the old Electricity Trust.

PN49

In the event, because of the Workplace Relations Act, that award became certified agreement throughout the Electricity Trust but that contained in one concise document all the - what one would term, the award related terms and conditions. Appendix 3 is effectively the carry over of that document. So, if in fact, you go back to clause 3 of the agreement on which you just commented on, appendix 3 essentially covers the ETSA interim wages award and the ETSA interim salaries award of 1990.

PN50

Those two awards were incorporated into the South Australian Power Industry Award 2002 through the awards simplification process. But because of the award simplification process, the South Australian Power Industry Award had some terms and conditions dropped out of it and, of course, went through that process of producing paid rates award to minimum rates awards. So you will find, in the case of this enterprise agreement, that appendix 3 is really the key set of terms and conditions that the unions and the employer and the employees rely upon.

PN51

THE COMMISSIONER: It is the bits that fell out of the power industry award that couldn't go in there because of award simplification provisions. Is that right?

PN52

MR TANNER: It contains those bits.

PN53

THE COMMISSIONER: It contains that as well?

PN54

MR TANNER: And everything that is in the award as well.

PN55

THE COMMISSIONER: I'm with you, yes.

PN56

MR TANNER: Yes. If the Commission pleases.

PN57

THE COMMISSIONER: Yes. Thanks for that. No, I understand where we are coming from there. Clause 8, "Payments", we talk about all payment increases. Now, we are obviously talking about wage increases there as well. All payment increases. We are obviously talking about salaries and wages there, aren't we? We are talking about wage increases?

PN58

MR TANNER: Yes, if the Commission pleases, the way that appendix 3 is set up is that it contains the rates of pay for the full range of classifications covered by the agreement and it also contains a fair number of allowances and special rates. Many of those special rates incorporate a formula for their increase in line with the increased classification to the wage rates for key classifications. I think the wording contained in clause 8 is to contemplate that.

PN59

THE COMMISSIONER: Yes, but payment increase embraces wage increase and it embraces all the increases that are contained in appendix 3 basically?

PN60

MR TANNER: That is correct, yes.

PN61

THE COMMISSIONER: Yes. Now, we get to some of the other Electrolux type issues. I think clause 13 - now, 13.1 from my point of view would be fine. The three bullet points there in 13.1 at the bottom of page 5, I would read more as a statement of fact, the statement of existing practice rather than as a statement of negotiated outcome. I would read that as indicating that the company may utilise supplementary labour for those purposes. That is what it does. It is a statement of fact, rather than a statement of negotiated outcome and it could be read that way.

PN62

MR TANNER: That is correct.

PN63

THE COMMISSIONER: Now, some other people might not read it that way but I would be happy to give it that reading. In that case, I would be perfectly happy with 13.1. It goes on to say:

PN64

TXU Torrens Island will utilise only those providers of supplementary labour that undertake to...

PN65

Then there is two more dot points. Again, I see those dot points as being okay because they really relate to what supplementary labour providers pay their staff. As I read the Ballantyne decision and other things, High Court decisions, if we are talking about having provisions in agreements that relate to what contractors pay their staff, that is okay in terms of the law. 13.2 however does not pertain in my view. Certainly the second paragraph of that:

PN66

If supplementary labour hire providers fail to pay in accordance with the provisions of this agreement, TXU Torrens Island will pursue the provider to ensure they do pay.

PN67

That does not pertain. 13.4:

PN68

The engagement of all supplementary labour will be subject to the following conditions.

PN69

13.4 does not pertain, in my view, in the terms of 170LI. I mean, look for example at the third dot point:

PN70

No supplementary labour personnel will be engaged without a planned scope of work to be performed, commencement and departure date.

PN71

That relates to more than just industrial relations type issues. 13.4, I don't think you would find anyone would, in the Commission, really would be prepared to say complies with 170LI. 13.5 is an interesting one because it says:

PN72

The company will review the following matters prior to letting or re-letting the work.

PN73

And all the - well, most of the matters talk about industrial relations type matters. Let me just say I think 13.5 is severely debatable but 13.4 and 13.2 I would read as being major problems. If we go to appendix 3, I would want to know at some point - we are looking at 2.5 of appendix 3: Code of Conduct:

PN74

All employees will have made available to them a copy of the current TXU Australia Code of Conduct policy and will abide by the requirements contained in that code.

PN75

In effect, the agreement or the appendix to the agreement which is part of the agreement is calling up that code as part of the agreement enforceable. I would want to see what that code is about and have a look at it because I think in effect, the agreement is calling up the code as I say and I would need to examine that to make sure that that was okay. I imagine it would be okay but I would certainly need to have a look at that. If we go over to 2.12: Employee Facilities. 2.12.2, dealing with notice boards says:

PN76

For the purpose of displaying formal union notices TXU Torrens Island will provide a notice board of reasonable dimensions in a prominent position.

PN77

Now, on 2.12.2 there, I would be prepared to accept a 170LV undertaking along the lines that formal union notices relates to matters concerning the employment of the relevant employees or something along those lines. I think we could deal with 2.12.2 by way of a formal undertaking. I had a similar one in an agreement in the transport industry earlier this afternoon where I have indicated I would be prepared to deal with it on an undertaking basis.

PN78

MR WHITE: If it pleases the Commission?

PN79

THE COMMISSIONER: Yes, Mr White?

PN80

MR WHITE: This is an award provision in the South Australian Power Industry Award, Commissioner.

PN81

THE COMMISSIONER: Well, if it is an award provision you don't need it in your agreement, do you? You wouldn't need it here?

PN82

MR WHITE: Well, maybe, maybe not.

PN83

MR DONNELLY: Well, sir, going to the question you asked before it is really trying to make it a one-stop shop so it can be one document which the employees would go to. That was the reason that it was included even though it was still in the award.

PN84

THE COMMISSIONER: Yes, but I mean the fact that something is in an award isn't necessarily going to help you here, Mr White, is it?

PN85

MR WHITE: I think it has some bearing on it, Commissioner, doesn't it?

PN86

THE COMMISSIONER: Well, it might or it might - well, the argument could be here, what is a formal union notice? One would assume, "Well, that's a notice dealing with employment," well, I don't know, is it? It might not be it might be to do with something other than the relations of employers and employees. Has anyone else got any comment on that? I mean, I just think the issue of union notice boards has been raised before in this connection that's all I am saying. Going to 2.13, I think you might have a problem with the last two lines of the third paragraph there which says:

PN87

The company shall allow workplace union delegates adequate time and facilities during normal working hours to attend to union duties.

PN88

Again, at the least, I think one would need to define what union duties were there. You would need to pin that down a little bit more. In regard to the next heading: Induction - New Employees. I think you are going to have problems with (c) and (d). (c) meaning:

PN89

The relevant shop steward will be informed of the appointment of all new employees who perform work covered by the union represented by the shop steward and be provided with the name and work location details of the new employee. (d) The shop steward will be allowed a reasonable amount of time to introduce themselves and explain their function as shop steward to the new employee and if requested by the shop steward, at the point of induction.

PN90

Does that truly pertain?

PN91

MR LLEWELLYN-JONES: Your Honour, with respect to (d), we would take the view that that would pertain because that would facilitate the workforce being aware of the shop steward in terms of resolving industrial disputes.

PN92

THE COMMISSIONER: Yes, what about (c), Mr Llewellyn-Jones?

PN93

MR LLEWELLYN-JONES: Your Honour, we would extend the same principle on (c) although we do submit that it is not as clear as (d).

PN94

THE COMMISSIONER: They are arguable, aren't they?

PN95

MR LLEWELLYN-JONES: Yes, I believe they are

PN96

THE COMMISSIONER: And this is the difficulty with all of these, see, they are arguable. I'm just trying to give you an idea of the areas that I think maybe a bit doubtful, all right, but I take your point.

PN97

MR LLEWELLYN-JONES: Yes, Commissioner.

PN98

THE COMMISSIONER: "Right of Entry." Now, what have I said here? Where it reads:

PN99

On notifying the employee's representative an authorised officer of the union shall be granted right of entry to attend to union business with employees.

PN100

Again, I think the term "union business" may need to be defined or pinned down to some extent and in regard to all these - the two previous paragraphs, (c) and (d) and in regard to the right of entry thing here, the reference to "union business" and so on I think is the point that I might have some issue with. Again, these are debatable, I am just flagging them. 2.14: Work Experience. There might be an argument there that that might not pertain. On the other hand, I can see how there could be an argument to the contrary as well. I don't know that that has been considered before by the Commission?

PN101

MR LLEWELLYN-JONES: I don't believe it has.

PN102

THE COMMISSIONER: But on the issue of work experience you can see, does that directly relate to the employer and employees? It is a question. Over the page, 3.2: Consultation Succession Planning. I think that is okay. I would be happy with 3.2. Succession planning and intake plans, do they relate to - do they pertain pursuant to 170LI? I think you could stretch it to say they might. You could mount an argument to say they wouldn't of course but it is just something to look at. I think I would be prepared to allow that through. Clause 3.4 clearly does not pertain in my view:

PN103

The parties agree that a consultative forum will be established to review the utilisation plan for supplementary labour and contract resources for major work projects. The forum will...

PN104

Etcetera, etcetera. That is going to be a show-stopper, 3.4. Over to the top of the next page where it says:

PN105

For the purposes of establishing the effectiveness of new contract resources the consultative forum will be presented with a proposed scope of works and contractors to perform the work prior to finalisation of...

PN106

Clearly does not pertain. That would be a show-stopper. I move over to 4.9: Deductions. Now, where it says there:

PN107

On receipt of a signed authorisation from an employee TXU Torrens Island will deduct from the employee's pay specified amounts in relation to any of the following...

PN108

Then of course you have got the dot point over the page:

PN109

Deductions of union membership, subscriptions of unions party to this agreement...

PN110

That was specifically dealt with in Ballantyne from paragraphs 215 to 228 of Vice President Ross' decision and there he was dealing with a clause which said:

PN111

Where written authority is provided by the worker, the employer will deduct union membership fees from the employee's wages or salary and remit them along with a schedule of such contributions to the union and monthly intervals.

PN112

He concluded by saying that that is not a matter which pertains. High Court judgments in Portus and Alcan are directly on point and should be followed and so on. I think if you read those paragraphs there it is a clear indicator that 4.9.3, certainly in regard to deduction of membership subscriptions of unions would not pertain and therefore would effectively bomb the agreement but can I also say that I think the reasoning there would also probably outlaw provisions in regard to health funds and other approved financial institutions, I would have thought. If you can't deduct union fees why can you deduct to - I don't know, Mutual Community or something? That is the way I read it. The next one, 4.10: Salary Sacrifice, I think may have to be read in the same light.

PN113

Basically, that is saying that you can salary sacrifice and it does not actually state what the purposes are. It talks about non salary - if it was simply salary sacrifice for superannuation or something I think you would be okay but it could be salary sacrifice for anything. It could be for your children's education or - I don't know, whatever, is as I read it. That being the case I think, while it is not perhaps directly in point as I recall anything in the Ballantyne decision, I think 4.10 would give you problems as well.

PN114

MR TANNER: If the Commission pleases, one issue that may be relevant to this is, certainly in relation to salary sacrifice, pre tax salary sacrifice of superannuation. The ATO has put out rulings which state that if an award employee wants to be able to salary sacrifice pre tax dollars then that needs to be recognised in industrial instruments, either awards or enterprise agreements. Now, the ATO I guess can't determine for the Commission what is a matter pertaining or what is not but that has certainly been the cause of the creation of a lot of single purpose enterprise agreements and I think a lot of enterprise agreements have got this provision in it. I guess it is a big issue for the parties, yes.

PN115

THE COMMISSIONER: And so I don't have a problem with superannuation. I think that legitimately relates to a benefit of - - -

PN116

MR TANNER: To an employment relationship, yes.

PN117

THE COMMISSIONER: Yes, but in regard to some other things you might have difficulties.

PN118

MR TANNER: Yes, okay.

PN119

THE COMMISSIONER: That is the way I read it.

PN120

MR LLEWELLYN-JONES: No, your Honour, I was just going to confirm that there is High Court authority that salary sacrifice to superannuation is all right in terms of Portus, they do discuss that issue when they are discussing payroll deductions, they discuss superannuation and salary sacrifice in terms of that context. That was just - - -

PN121

THE COMMISSIONER: But if you are having salary sacrifice for payment of your electricity bills or something or rather, I don't think it pertains. I don't think that pertains.

PN122

MR LLEWELLYN-JONES: I appreciate there might be some clarification required.

PN123

THE COMMISSIONER: Yes. So that is an interesting provision. If we then go over. 7.5 relates to journey cover insurance. Now, it really is arguable I think, 7.5, and it is - I will just read the first bit, it says:

PN124

TXU Torrens Island will ensure employees to provide cover for injury while travelling to or from their residence in place of work or work related training venue. At the time of certification of this agreement an extract from the policy was as follows.

PN125

Then you go on. Now, it seems to me that it is that preamble there that is the issue rather than any of the specific wording of the paragraph that follow or the preamble there in 7.5.1, the coverage provided:

PN126

Compensation to employees should they be injured while engaged in a journey as defined.

PN127

Journey is defined as meaning a travel to and from the place of employment, isn't it? Again - now, journey incident, I don't think that has been raised in any matter before the Commission to date, I don't think it has but I see there could be quite an interesting debate on journey cover insurance - an interesting debate. If we move then over to - there is a series of leave provisions from 8.7: Emergency Leave and then Trade Union Training Leave at 8.9 and so on. Now, unless and until the Ballantyne decision is reviewed by some higher authority, I intend to follow Ballantyne in regard to that and I agree in any event with the interpretation there which is that basically I think Vice President Ross says any leave provision there is a matter pertaining and I follow his reasoning in there.

PN128

I am happy with those provisions for trade union training. Then, if we go to 9.14.4: Training and Development. Generally speaking, I don't have much of a problem there with 9.14.4: Training and Development, but I do note that over the page on page 59 in the third paragraph down, second line, it talks about:

PN129

An individual that expresses an interest in production operations or engineering/business related training or in acquiring similar knowledge for the purposes of self development:

PN130

Etcetera. I am the first to agree that any self development course is an excellent thing but whether it is strictly a matter pertaining in regard to 170LI is another issue. I suspect it might not be. Training in regard to many of these other things you could say, "Well, it is directly related to the work in hand." Self development? Well, it is self development, it is related to a lot of things. It is arguable and it is just something I noted when we went through. Getting off the Electrolux type issues for a while, clause 10: Apprentices, and I note that clause 10.2.5 talks about the operation of state laws:

PN131

Any statute or regulation relating to apprentices will operate provided that the provisions are not inconsistent with this agreement.

PN132

Well, if that is what the parties agree to that is what they agree to but of course you realise that this agreement would override essentially and I think the interaction of this agreement with the - what is it called now, the Training and Skills Development Act, I think it is, I think the interaction needs to be very carefully looked at because anything you put in here would if it is inconsistent of course, it would override State Law. Something to think about. Clause 10.7:

PN133

Apprentices attending vocational, educational and training providers in presenting reports of satisfactory achievement will be reimbursed all fees they have paid.

PN134

Well, as long as those fees relate to courses that are directly relevant to the work I guess and one would imagine that would be the case if they are apprentices. I wouldn't have a problem with that. 10.8: The Proportion of Apprentices. Again, it might be argued that there is an issue there. I personally don't think so, I think that would be okay, the proportion of apprentices to trades persons but again, could be argued. I would think it would be okay. Clause 11: Facilitative Agreements. Now, you have got I think real problems here as I read it:

PN135

To provide a fair and reasonable procedure to be followed where business initiatives are proposed which may or may not impact upon the application...

PN136

It actually says "which may or may not impact upon the application of existing terms and conditions in the workplace." That is the aim of clause 11 and I look down at 11.2.2, which is actually headed: Where no Change is Required to Conditions of Employment. In other words, where it really does not directly affect employment in that sense. It says:

PN137

Where an initiative is consistent with agreed current terms and conditions of employment then:

PN138

First dot point:

PN139

The employees affected will be consulted.

PN140

Second dot point:

PN141

Where appropriate a cost benefit analysis will be conducted including consideration being given to potential impact on other parts of the business.

PN142

The way I read all that is, that is if the employer has a business initiative which is not defined, so it is a pretty loose term, they have a business initiative they want to implement, it is not going to have any affect on the terms and conditions of employment of the employees, they are obliged under 11.2.2, second dot point, obliged to do a cost benefit analysis. They are obliged to do certain things and discuss it in terms of the arrangements in this clause. It does not pertain. So I think you would have problems there. 11.3, I found this interesting as well:

PN143

On TXU Torrens Island, the relevant employees and their unions achieving agreement on the contents of the facilitative agreement TXU and the relevant unions will sign the document and arrange for its filing at the AIRC.

PN144

Now, I presume it is intended there that the facilitative agreement would be an agreement actually directly relating to terms and conditions of employment but as I read the clause it need not relate. You could have an agreement arising out of this clause that need not relate to the terms and conditions of employment of the employees then if that was the case, how could you possibly have it lodged in the agreement, on what authority would you do that? Is that what is intended?

PN145

MR WHITE: Commissioner, this is an interesting issue you are raising which may have wider ramifications if I have understood you correctly, I may or may not have. It may be possible to envisage a situation arising where employees' terms and conditions are not impacted, that is, there is no need to change or modify existing terms and conditions but there could still be a major impact on the way the work is done or you know the number of employees required to do the work or you know, there could be a whole range of impacts on the way the work is done not necessarily requiring an alteration or a change to the terms and conditions and it may well be possible to imagine a situation where that could happen but the interesting bit I think is whether that is the definition of what pertains to the employee/employer relationship.

PN146

In other words, there may be many things happening in the workplace which are quite obviously directly related, to use a different term, to the employee/employer relationship that require a level of discussion, perhaps agreement if possible between the parties but not necessarily requiring a change to the terms and conditions of employment.

PN147

THE COMMISSIONER: Yes, look in terms of good employer/employee relations, clause 11 is excellent. I mean, what it says is - clause 11.1, the aim - I think those first three lines, that is the key to the whole thing:

PN148

To provide a fair and reasonable procedure to be followed where business initiatives are proposed which may or may not impact upon the application of existing terms and conditions in the workplace.

PN149

I guess one could call it employee participation. The provision is basically saying, "Look, whenever the company proposes a business initiative," not defined, anything out there, "We want to be involved, we want to know, we want to have an input, we want to do certain things." That is an excellent provision, but the term "business initiative" is not defined. It could mean pretty well anything, and the provision actually goes on to say, "whether or not it impacts on the employees directly" - whether there's any change or whether there isn't any change to the conditions of employment.

PN150

MR TANNER: If the Commission pleases, I have some history of this provision, and what Mr White said is quite accurate. It was originally negotiated a number of years ago when the Electricity Trust of South Australia was still the organisation that had all the assets of the power industry in this State, and it was certainly about a process whereby any changes that were proposed - it was really a spin-off from the consultative precision, if you like, because there was some concern about the effectiveness of the consultative precision in ensuring that there was consultation in the workplace where there were significant changes.

PN151

It might impact, for instance, on issues like a great reduction in overtime or a reduction in the workforce, or some employees having to be reskilled or whatever. If memory serves me correctly, I think that is where the company, back in the 1990s, saw this clause being applied and through negotiation, the unions had expressed concerns that there would be issues that might have less impact in relation to employees than on the unions. I think that is where you are picking up where there might be a problem in terms of that clause now in the light of the Electrolux and Ballantyne and what-have-you decisions.

PN152

That clause might go a bit further than may now be perceived to be allowable, but originally it was certainly there to deal with matters that very much pertained between the employer and the employees in terms of real impact in the workplace, although they may not require a change in the terms and conditions of employment, that were expressed in the then version of appendix 3.

PN153

THE COMMISSIONER: So that raises the question: could we deal with this with an LV undertaking?

PN154

MR TANNER: Yes.

PN155

THE COMMISSIONER: Yes, well it might be possible.

PN156

MR TANNER: Yes. Well, I think the parties can probably have a talk about that.

PN157

THE COMMISSIONER: It is an interesting clause, though. It needs some further discussion.

PN158

MR TANNER: Yes.

PN159

THE COMMISSIONER: I also considered clause 13. I had a bit of a look at that: National Competency Standard Assessments. I think that is okay. I think that, sort of, relates directly to - I think that is - I'm probably happy to regard that as being incidental. Look, they are the matters that - and I wouldn't say I have necessarily gone through this line by line. I have been through it reasonably carefully. As I say, one doesn't go through this, you know, deliberately trying to find problems necessarily, but that is a reasonably cursory examination of the agreement. There are many of those points that I referred to there that are debatable, and that we would like to hear argument on.

PN160

Our views might vary and I would probably take - if need be, I would take the benefit of the doubt and say: well, that might be okay, let it through but there are certainly some of those provisions that I raise that are clearly show stoppers, and the agreement as it stands at the moment could not be approved by the Commission. Now, how do you want to proceed, Mr Tanner? Have you talked to the parties and - - -

PN161

MR TANNER: If the Commission pleases, if it is possible, it might be worthwhile if the parties could have a brief discussion in light of the issues you have raised, and perhaps if we could have a 10 minute adjournment?

PN162

THE COMMISSIONER: Sure. Yes, happy to do that. Then you can decide what you want to do. I understand that the negotiation has taken some time, and I mean, one might say if it had come up 3 or 4 months ago, you would have been okay but that is not necessarily the case because you would have had - had this been approved 3 or 4 months ago, you'd have an agreement that was not enforceable.

PN163

MR LLEWELLYN-JONES: In fact, as the Commissioner has just mentioned that point, just before the parties go to conference, I thought it might be worthwhile just pointing out that the Commission has, in my opinion and submissions, missed something which is clause 3 of the main agreement, not the schedule:

PN164

Should it be the case that any of those previous agreements have clauses which do not pertain to the relationship between employer and employee...

PN165

That being the '94, '95, '97/99 agreement or the '01 agreement, by allowing them to be effective in this agreement, that would also create a situation where that clause would not pertain.

PN166

THE COMMISSIONER: Just say that again?

PN167

MR LLEWELLYN-JONES: Take for example, Commissioner - let us say the 2001 agreement has a payroll deductions clause.

PN168

THE COMMISSIONER: Yes.

PN169

MR LLEWELLYN-JONES: If we now remove that from this agreement, according to clause 3, there will still be a payroll deduction clause.

PN170

THE COMMISSIONER: Yes, I'm with you.

PN171

MR LLEWELLYN-JONES: It is simply a matter, I think, of just wanting to make sure the parties were aware of that, so that if we did modify it so we don't get stuck - - -

PN172

THE COMMISSIONER: Yes, that is an excellent point and, I mean, well I understand the history of the different awards there, but with a lot of agreements, a lot of agreements do refer to other awards, that are to be read in conjunction with other awards. Those awards may all contain items that are industrial matters, properly so, but just the fact that they are an industrial matter does not mean that they are a matter pertaining. That is also part of the point you make, I think, isn't it?

PN173

MR LLEWELLYN-JONES: Well, that extends it even further but, I mean, I was just simply taking the view that this agreement, in many respects, is copied from a previous agreement so payroll deductions is the perfect example, in my view. Let us say the parties now all agree to remove that offending clause from this agreement so we can take it back and get it certified, well should it be in the 2001 agreement? It effectively then doesn't have a clause overriding it, so therefore clause 3 allows it to be placed back in it which would prevent certification.

PN174

THE COMMISSIONER: Yes, so the point you make really is that: look, in approving this agreement, one would also have to go through the exercise with all those other agreements as well?

PN175

MR LLEWELLYN-JONES: Yes, sadly so.

PN176

THE COMMISSIONER: I mean, the award - well, everything really, all of those.

PN177

MR LLEWELLYN-JONES: In many respects, sir, that is correct and it is not submissions that we raise to make everybody's life more difficult. It is just that I'm acutely aware from experience early this week that the Commission - it would be proper not to certify it because of this clause, because of clause 3 because of what was in the previous agreement, so it is simply just for the edification of the parties.

PN178

THE COMMISSIONER: Thank you for that. Does anyone have any further comment for the record before we adjourn for a few minutes? All right, we will adjourn and come back when we can.

SHORT ADJOURNMENT [3.35pm]

RESUMED [3.50pm]

PN179

THE COMMISSIONER: Yes, Mr Tanner?

PN180

MR TANNER: If the Commission pleases, the parties have talked about this and feel that they need a couple of weeks to explore all the issues that have been raised. I'm wondering if it would be possible to have this matter relisted for a conference in about 2 weeks' time rather than a formal hearing just so that we can address the issues that have been dealt with?

PN181

THE COMMISSIONER: Yes, happy to do that. You can talk to my associate in a moment about a time for that purpose.

PN182

MR TANNER: Now, the other issues that the parties would be grateful for an indication about from you is the issue of what will be required in terms of employee consent to a revised document. Given that the nature of the changes may be several at least, should the parties expect that you would expect that the revised document would be given back to the employees for another vote?

PN183

THE COMMISSIONER: Absolutely.

PN184

MR TANNER: Yes, fine.

PN185

THE COMMISSIONER: Yes, this would have to be withdrawn, the file would have to be withdrawn. You'd have to go through the whole process again, I'm afraid, yes. In the meantime, I might just check out that business about the change of name. If you have to go back to a new one, that would - - -

PN186

MR TANNER: In that case, it is not a problem.

PN187

MS SMITH: All right, if you are going to revise it, you will fix it.

PN188

THE COMMISSIONER: That wouldn't be an issue, yes. In the meantime, I will take into account some of the brief comments that have been made from the parties to some of those clauses. As I say, the key thing with me today was to just list those areas that, sort of, stood out to me as being areas of potential concern. Now, of those, I don't know how many areas, 18 or whatever - 16 to 18 - that I might have raised. It seems to me that a good 80 to 90 per cent of those are debatable and you have indicated: well, they are open to debate. You are absolutely right. They are debatable. We would have to hear argument and make a decision on them.

PN189

I do think that there clearly those three or four that I've raised that just aren't going to get you - that are going to bong the agreement, to put it bluntly, and you have to go back and have a look at things. I mean, ultimately if something comes before me, and I have to go through and hear argument on it, well I'm just happy to do it and I will make a decision on the basis of what I've heard and so on. As I indicated to the parties, at this stage, I think the Ballantyne decision gives some pretty good guidance on all of this, and unless and until there is some higher authority, I intend to follow the general gist of that as much as I can.

PN190

One hears about possible Full Bench decisions coming up and so on, but I'm not sure that there's anything in the near future. I will just make a decision as best I can having regard to the authorities that are there. We will adjourn then, and we will have a time for a conference in a couple of weeks, and we will see where we go from there.

ADJOURNED INDEFINITELY [3.55pm]