AG2004/8121, Transcript of Proceedings [2004] AIRCTrans 4600 (29 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 9103
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

AG2004/8121

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Kuehne & Nagel Pty Ltd for certification
of the Kuehne & Nagel Pty Ltd (Warehouse
Employees) Certified Agreement 2004

MELBOURNE

9.35 AM, THURSDAY, 18 NOVEMBER 2004

PN1

MR P. HOULIHAN: I appear as agent for Kuehne and Nagel. With me is MR D. DONAU, and MR S. DIB, and MR J. MANNION.

PN2

THE COMMISSIONER: Thank you, Mr Houlihan. This is an application made under section 170LK of the Workplace Relations Act for certification of an agreement between the employer, Kuehne and Nagel, and its employees. Mr Houlihan, would you like to take us through the application please and perhaps you could just particularly address issues such as the date when the agreement was made, and I want to just be assured that the agreement was submitted to the - or the application was submitted to the Commission within 28 days, because there is a little bit of confusion on the paperwork as to how those dates lined up; and the other issue is whether or not the employees in Kuehne and Nagel were advised that an employee may request an organisation to represent them in their negotiations with the employer. That isn't clear either.

PN3

MR HOULIHAN: Okay. Commissioner, can I just deal with that last matter first, because I think it is obviously a particularly important matter, and if I can just tender a notice that all employees received.

PN4

THE COMMISSIONER: Good.

PN5

MR HOULIHAN: And in fact, twice, because of the changes that were made.

PN6

THE COMMISSIONER: Thank you.

PN7

MR HOULIHAN: That document, Commissioner, clearly states the rights of the employees in relation to representation.

PN8

THE COMMISSIONER: And this notice was given to all employees, individually, Mr Houlihan?

PN9

MR HOULIHAN: All employees received that notice, Commissioner, with the copy of the agreement.

PN10

THE COMMISSIONER: Good. Well, that is satisfactory if that is the case.

PN11

MR HOULIHAN: And that was done at each of the meetings that were convened.

PN12

THE COMMISSIONER: Yes.

PN13

MR HOULIHAN: Okay. So I just want to - I will get that matter settled first, Commissioner, because I think it is - it is obviously an importantt issue. Commissioner, yes. I will come back to the second issue, or actually the first issue you raised about the actual date of agreement. Commissioner, Kuehne and Nagel operate, at this stage, in Brisbane, at two sites in Sydney, and at two sites - okay. At two sites - I will step back from it - at two sites in Melbourne. Commissioner, when the agreement was initially put to employees it was put at meetings at all of those sites, and then, as is entirely reasonable and to be expected, issues arose and there were further re-draftings done and further meetings held, at which agreement was reached in terms of the terms of the document.

PN14

As I say, they were - the whole thing was re-committed in terms of the advice that employees were given and as well as the terms of the actual document itself. Now, Commissioner, the actual voting took place over a number of weeks because of annual leave requirements in some cases. I think, and I can't remember the actual location, but there was - I think in Brisbane, where there were, say, three employees, at one stage there were two of them off, and so that was delayed until they came back. Now - - -

PN15

THE COMMISSIONER: How was the voting undertaken and when - - -

PN16

MR HOULIHAN: It was undertaken site by site, by secret ballot.

PN17

THE COMMISSIONER: By secret ballot. Yes.

PN18

MR HOULIHAN: By secret ballot, Commissioner, and, Commissioner, the essence of the contract is this; is that at no site was the ballot conducted less than 15 clear days after the final document was presented to employees. At none of the sites did that happen, and the actual ballots - and I guess it depends when you say when was the actual agreement made, it was - - -

PN19

THE COMMISSIONER: When was the ballot counted, Mr Houlihan?

PN20

MR HOULIHAN: The ballot was completed - I am just trying to - I have got that here. They were - the balloting was between 13 October and 22 October and it was completed on 22 October and it would have been shortly after that, Commissioner, that we would have had the - - -

PN21

THE COMMISSIONER: It was lodged on 4 November.

PN22

MR HOULIHAN: That is right.

PN23

THE COMMISSIONER: So you were within the 21 days.

PN24

MR HOULIHAN: We were within the time, but - and, as I say, of the 32 employees balloted 30 voted in favour of the agreement.

PN25

THE COMMISSIONER: Good.

PN26

MR HOULIHAN: There was - I was involved in all of the first round meetings, Commissioner, and I was involved in the main second round meeting at the largest store here in Melbourne, and I can say that employees were given adequate - they were given full opportunity to understand the document. The document was read to people line by line. I was stopped and asked questions. There was no lack of employee forcefulness in making sure they got issues answered, and so on, and, as I say, what it led to was major re-drafting of the agreement, because it simply didn't meet what the employees wanted.

PN27

So, Commissioner, the affidavit of Mr Alexander Donau, there is an inadequate answer at part 6, 6(1). It specifies - it says:

PN28

...to specify the relevant awards, including State awards, which regulates the terms and conditions...

PN29

and we have got there the Transport Workers (Air Freight Forwarding and Custom Clearance) Award 2000. Sir, also there should be there the Transport Industry State Award made in New South Wales, because prior to the introduction of this agreement the employees in New South Wales have been employed under the terms of the TI State Award.

PN30

Sir, there is, or there has been provided to the Commission a comparison test for the no disadvantage. Sir, that simply demonstrates that there is - from 21 to $26 a week advantage on over award. The only significant change, the only significant variation really is in the working hours, where - - -

PN31

THE COMMISSIONER: 40 rather than 38?

PN32

MR HOULIHAN: Yes.

PN33

THE COMMISSIONER: Yes.

PN34

MR HOULIHAN: No, no, no. It goes from 40 - it goes from 4 am. The spread of hours goes from 4 am to - well, 0400 to 2000. I understand that as 4 am to 8 pm, rather than from 5 am to 8 pm. There is a variation in the first aid allowance which I can only understand as being a typo on my part in terms of the drafting of the actual document, where the award provides for $8.54 and the agreement provides for $8.24. I can only think that that is because I have made an error there. But there are no really other serious issues there and, Commissioner, I commend the agreement to the Commission.

PN35

THE COMMISSIONER: Good. Thank you, Mr Houlihan. Mr Houlihan, just before you sit down, just a couple of points regarding the agreement itself. Not so much going to the no disadvantage test, but just in terms of the way it is put forward.

PN36

MR HOULIHAN: Yes.

PN37

THE COMMISSIONER: In para 7.3, the settlement of disputes clause, it refers to:

PN38

...if a matter cannot be resolved it may be referred to the Commission.

PN39

Now, as you would know, the Commission - - -

PN40

MR HOULIHAN: Commissioner, can I tell you, we see that as having the full authority to deal with the issue.

PN41

THE COMMISSIONER: To undertake arbitration if the matter cannot be settled by conciliation.

PN42

MR HOULIHAN: Yes, absolutely. Yes.

PN43

THE COMMISSIONER: Always wise, Mr Houlihan, as you know - - -

PN44

MR HOULIHAN: To spell it out. Yes.

PN45

THE COMMISSIONER: - - - to spell it out a little.

PN46

MR HOULIHAN: I am happy to have that on the record here, Commissioner.

PN47

THE COMMISSIONER: Yes.

PN48

MR HOULIHAN: That we would seek that the full power be there.

PN49

THE COMMISSIONER: Good. Thank you. In para 8.1, which is types of employment - - -

PN50

MR HOULIHAN: Yes.

PN51

THE COMMISSIONER: It refers to:

PN52

...employment can be full-time, part-time or casual.

PN53

MR HOULIHAN: Yes.

PN54

THE COMMISSIONER: Now, as you know, Mr Houlihan, you can have full-time casuals, you can have part-time casuals, and you can have casuals, or permanents. Often - I see this quite often.

PN55

MR HOULIHAN: Yes.

PN56

THE COMMISSIONER: People refer to full-time, part-time, or casuals.

PN57

MR HOULIHAN: Yes.

PN58

THE COMMISSIONER: But really, a casual may be full-time; a casual may be part-time. But what you are really saying, an employee may be full-time or part-time.

PN59

MR HOULIHAN: Yes.

PN60

THE COMMISSIONER: And may be permanent or casual.

PN61

MR HOULIHAN: Casual, that is right.

PN62

THE COMMISSIONER: And that is what is meant by that.

PN63

MR HOULIHAN: Yes, and I think that is a more clear definition of it. I think also, Commissioner, I think that if the - the run of full-time casuals is coming to an end.

PN64

THE COMMISSIONER: Yes, yes.

PN65

MR HOULIHAN: But - and also part-time. But, yes. That is right, Commissioner. That is what it means. That is what we intend.

PN66

THE COMMISSIONER: Yes, and, Mr Houlihan, I won't be around next time this matter comes for certification. I think, is it three years we are talking about here?

PN67

MR HOULIHAN: No, we are talking two years.

PN68

THE COMMISSIONER: Two years.

PN69

MR HOULIHAN: Yes.

PN70

THE COMMISSIONER: Well, I may be around when it comes back again, so - - -

PN71

MR HOULIHAN: Please God we both will be, Commissioner.

PN72

THE COMMISSIONER: Yes.

PN73

MR HOULIHAN: That is right.

PN74

THE COMMISSIONER: Well, you will be - you are a relatively young man, Mr Houlihan, so - - -

PN75

MR HOULIHAN: I am, and I am glad you recognise that, sir.

PN76

THE COMMISSIONER: Good.

PN77

MR HOULIHAN: I appreciate that.

PN78

THE COMMISSIONER: Now, the only other - - -

PN79

MR HOULIHAN: There are fewer and fewer people with your level of perspicacity on that matter, I have got to say, you know.

PN80

THE COMMISSIONER: Well, I will have to go back to the dictionary on that one, Mr Houlihan. Now, the last one is 12(a), in regard to the variations to the rate of pay.

PN81

MR HOULIHAN: Yes.

PN82

THE COMMISSIONER: Where - and this is not unimportant, but I am sure the intention is correct but it doesn't clearly state it, and it says:

PN83

In the event that an employee is paid according to the minimum award scheme, schedule 11.1, the employee is guaranteed that they will receive either the K and N review, or the amount determined by the AIRC in its annual Safety Net Review.

PN84

MR HOULIHAN: "Whichever is the greater" it should - - -

PN85

THE COMMISSIONER: "Whichever is the greater" I expect is the intention there.

PN86

MR HOULIHAN: Yes. Yes, that is right. Absolutely. Yes.

PN87

THE COMMISSIONER: Yes. Good. Well, that is on the record.

PN88

MR HOULIHAN: Yes, that is right.

PN89

THE COMMISSIONER: And again, it would have been useful, perhaps, if that had have been put in.

PN90

MR HOULIHAN: It constantly amazes me, Commissioner, when you get here with something like this. I mean, God knows how many times this damn thing has been gone through - - -

PN91

THE COMMISSIONER: Yes.

PN92

MR HOULIHAN: - - - and re-worked and all the rest of it, and you still leave fundamental things like that out. Yes.

PN93

THE COMMISSIONER: Well, Mr Houlihan, when I am dealing with men of good will and good faith, like yourself - - -

PN94

MR HOULIHAN: Thank you, sir.

PN95

THE COMMISSIONER: - - - I know that these things will be attended to properly.

PN96

MR HOULIHAN: Yes.

PN97

THE COMMISSIONER: Other people I might not be so confident in.

PN98

MR HOULIHAN: I appreciate that, Commissioner.

PN99

THE COMMISSIONER: Yes. Good. But it is on the record that it will be the higher of the two amounts.

PN100

MR HOULIHAN: Yes.

PN101

THE COMMISSIONER: Whichever. Good. Having considered the statutory declaration, the content of the agreement, the explanations provided by Mr Houlihan on behalf of the company, firstly I am satisfied that the agreement contains no clause which is inconsistent with the requirements of the Electrolux decision, and that all clauses are pertaining to the relationship between the employer and the employees. I am also satisfied that the proposed agreement meets the other requirements of the Workplace Relations Act, and I propose to certify the agreement as sought by the parties. This matter is adjourned.

ADJOURNED INDEFINITELY [9.48am]