C2004/6748, Transcript of Proceedings [2004] AIRCTrans 4713 (6 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N3656

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

C2004/6748

PACIFIC TERMINALS (AUSTRALIA) PTY LIMITED

and

NATIONAL UNION OF WORKERS

Notification pursuant to Section 99 of the Act
of a dispute re the industrial action taken
as a result of the employer not agreeing
to demands made for the condition of an additional
day off after every 120 hours of overtime worked

BRISBANE

11.02 AM, THURSDAY, 25 NOVEMBER 2004

PN1

MR S.H. NANCE: I appear for the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers for and on behalf of Pacific Terminals (Australia) Proprietary Limited. With me is MS H. RUHOTAS and NEVILLE GRUNDY. If the Commission pleases.

PN2

MR D. BALL: Representing the National Union of Workers. And with me today is a MR MASLIN and a MR THOMPSON, workplace delegates, thank you.

PN3

THE COMMISSIONER: Good, thank you, Mr Ball. I understand that the parties have reached a settlement in relation to this - or should I say have decided upon a basis upon which this application may be resolved and they wish to put the terms of that resolution on transcript. Is that the case, Mr Nance?

PN4

MR NANCE: That's as I understand it, Commissioner.

PN5

THE COMMISSIONER: Mr Ball, is that the case?

PN6

MR BALL: That is correct, Commissioner, yes.

PN7

THE COMMISSIONER: Right. Who - Mr Nance, are you to do the honours.

PN8

MR NANCE: If the Commission pleases, firstly, I thank you for indulgence, for letting us have the opportunity to try to resolve this, and I'm pleased to say that the matter has been resolved. It is my understanding that as a result of the company agreeing to reduce a term contained in the proposed certified agreement from 120 hours overtime to 115 hours overtime over a 12-week period, and the inclusion of a clause that there will be no overtime bans taken during the life of this agreement, and that the company gives a commitment that it will abide by the terms in the current agreement which will flow over to the new agreement, being clause 9.1.1, which is the company's duty to notify regarding the introduction of change, and a commitment that the company will abide by the terms that are contained in clause 12, which is the consultation, my understanding, if the Commission pleases, is that the matters will now be resolved and that all overtime bans will be lifted by the employees and that the changes that we have discussed will be implemented in the proposed certified agreement and that draft certified agreement will be then set out to the employees for the 14-day consultation period, and after that a ballot will take place. If the Commission pleases, this is my understanding of the agreement that has been reached between ourselves and the National Union of Workers on behalf of the employees of Pacific Terminals. If the Commission pleases.

PN9

THE COMMISSIONER: Good, thanks, Mr Nance. Mr Ball, does that statement by Mr Nance reflect your understanding of the terms of the resolution?

PN10

MR BALL: Yes, Commissioner. What Mr Nance has said and he outlined in brief to yourself, after quite a lengthy discussion we had today within the Commission to resolve the issue, and that as part of that resolution we've given a commitment to meet with our members and employees as a matter of urgency at the conclusion of this Commission to inform them of what the outcome of today's discussions would be. And they are as Mr Nance has outlined, is a commitment to make sure that clause 9 in total flows over into the new agreement and abided by, by all parties; and clause 12 is the same, and that refers to significant effects, including termination of employment, major changes in composition, operation and size of the community's workforce etcetera.

PN11

The reason for that, Commissioner, was that as part of the agreement that was reached in reduction of the averaging overtime hours for employees to have a day off was to make sure we had a commitment by the company that if there is a major change within the organisation which could make any agreement we reach today before you become null and void, then we had some major problems that today's discussions were for no effect at all. And that's why we wanted clearly the company to give that commitment which they have.

PN12

In regards to any arrangement in regards to the hours provision for days off because of excessive overtime, the company have agreed that even though the document as an enterprise agreement is not certified before the Commission, the timing of any calculation for those 12-week period would take place from 20 October administratively, which was the ceasing date of the previous agreement for renegotiation.

PN13

Bearing those things in mind, we did give a commitment to the company that we would include a number of things within the new enterprise agreement and circulate them out, as what has been placed with you today, including a document that outlines the provisions of how the employees, once they work 115 hours averaged over 12 weeks, can then take that day off somewhere within the 12 weeks at an agreed time between the parties, but it clearly must be taken off during that period of time. It is not lost in any way. It can't expire at the beginning of the following three months. It's an entitlement, an entitlement and a right that they have to take it off.

PN14

The company have agreed to that, and those matters as agreed we have collectively said that we would put to the employees and then put it out as a draft document, and it is our belief that that will resolve all matters before the Commission and all matters between the parties in finalising this enterprise agreement, Commissioner, thank you. Other than if there's any points of clarification, I didn't have any other comments to make.

PN15

THE COMMISSIONER: Good, thanks, Mr Ball. Mr Nance, Mr Ball made comment which replicated the comments which you made but he also made further comment as to some conditionality on some of those provisions, but he also introduced some new matters as well, such as in regard to the commencement of wage increases and so forth, which you didn't make mention of. The Commission has no interest in attempting to untangle the agreement that's been reached between the parties, and I just think it would be wrong of me to do so, but - and all I need to confirm is if what Mr Ball has said also reflects the agreement that has been reached this morning. Is that the case?

PN16

MR NANCE: Commissioner, I can confirm that is the case in respect of the two issues of the timing, the commencement of the calculation; and also the second part was the words that would go into it as to the method of the taking of the time off.

PN17

THE COMMISSIONER: Yes, there was some conditionality, operational issues.

PN18

MR NANCE: Yes, those words have already been put up there and they have been agreed, if the Commission pleases.

PN19

THE COMMISSIONER: Okay, that's all right. I also note from what Mr Ball says, that this is in essence, I presume, a proposed resolution contingent on the acceptance of the relevant workforce. Is that the case?

PN20

MR BALL: Yes, if there is - if you were making comment to the proposed agreement, everything else within the agreement except this one particular point is all resolved, Commissioner. It was just a matter of some drafting exercise to make sure these things are contained.

PN21

THE COMMISSIONER: Yes. No, my point was that - is the resolution this morning about this particular matter contingent on the acceptance of the workforce? And I took it from what was said earlier that that's the case?

PN22

MR BALL: On the current workforce and the current arrangements within the establishment.

PN23

THE COMMISSIONER: Yes, you have to take this resolution back to them, don't you, and have it accepted?

PN24

MR BALL: That's correct, and that's why we made particular mention to clause 9 and clause 12, if that is, both parties sign an agreement as being a commitment and we find that the commitment is not made, then either party has the right to approach the Commission on any broken commitment.

PN25

THE COMMISSIONER: Yes. No, look, just for the Commission's purposes, I appreciate that there is still another step to go before this in cement, if you like, and for that reason I will keep the file and I will await - once the matter is fully resolved, Mr Nance, as you're the applicant, I would appreciate if you could notify me that this section 99 notice is - that you seek to withdraw it and the matter is settled as a consequence of this conference and I will then issue an order under Section 111(1)(g)(ii) of the Act, which effectively withdraws this - it does away, if you like, with this application and it therefore no longer exists. Would you be able to do that?

PN26

MR NANCE: Yes, Commissioner, I can confirm that - - -

PN27

THE COMMISSIONER: Yes, the other side - - -

PN28

MR NANCE: - - - as soon as I can get a resolution from the other side that say that they have adopted or supported it, then I will notify this. If by chance the reverse comes in, that the employees don't accept, then we may have to ask for an urgent conference back before yourself.

PN29

THE COMMISSIONER: Yes.

PN30

MR NANCE: Because I would presume that the overtime bans would be remaining, and we've got a ship coming in tomorrow night or tomorrow afternoon, and another ship coming in on Tuesday, and we would be seeking urgent action on that.

PN31

THE COMMISSIONER: Yes, because I should have said that the flip side or the other side of the coin is that there isn't resolution, and as a consequence, you would be - I will retain the file for the purposes of you being at liberty to re-apply, either of the two.

PN32

MR NANCE: Thank you, Commissioner.

PN33

THE COMMISSIONER: That said, is there any further comment that needs to be made for the purpose of the transcript?

PN34

MR BALL: No, that's the only comments, thank you, Commissioner.

PN35

THE COMMISSIONER: Good. Thanks very much to the parties for their efforts this morning. We're adjourned.

ADJOURNED INDEFINITELY [11.12am]