AG2004/8225, Transcript of Proceedings [2004] AIRCTrans 4928 (15 December 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 2594
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/8225

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Electrolux Home Products and Another for
certification of the Electrolux Home Products
Plastics Operations Enterprise Agreement 2004

ADELAIDE

1.30 PM, MONDAY, 6 DECEMBER 2004

PN1

MR S. BAKEWELL: I appear on behalf of Electrolux Home Products. Appearing with me is MR J. GETGOOD, a HR officer and the officer responsible for the Plastics Division, and we also have an employee representative for you today, MS V. SMITH, if the Commission pleases.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bakewell. Mr Bakewell, I've noted that attached to the statutory declarations is a copy of the employer's notice of intention.

PN3

MR BAKEWELL: Yes, Senior Deputy President.

PN4

THE SENIOR DEPUTY PRESIDENT: I will mark that for the record.

EXHIBIT #E1 EMPLOYER'S NOTICE OF INTENTION

PN5

THE SENIOR DEPUTY PRESIDENT: I might just clarify the process that was followed with the employee representative, Ms Smith.

PN6

MR BAKEWELL: Certainly.

PN7

THE SENIOR DEPUTY PRESIDENT: Ms Smith, first of all, can you tell me how it is that you came to be the employee representative?

PN8

MS SMITH: There was a - basically, nomination - not self-nomination, but nomination by your work - fellow colleagues.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MS SMITH: Then, it went to an official vote which was duly scrutinised and I ended up being part of it.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, attached to the statutory declarations is a notice to employees dated 26 October 2004.

PN12

MS SMITH: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: In that notice the Electrolux Human Resources Officer, Mr Getgood, attaches a copy of the proposed agreement and indicates that if a person wishes they could have - or seek advice from a union and that union is able to talk with the company over a 14-day period. Did you receive such an advice?

PN14

MS SMITH: Yes, I did.

PN15

THE SENIOR DEPUTY PRESIDENT: To the best of your knowledge, was such an advice sent out to all employees to be covered by this agreement?

PN16

MS SMITH: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Are you aware of anyone who sought to have a union involved?

PN18

MS SMITH: No.

PN19

THE SENIOR DEPUTY PRESIDENT: Now, there are some 23 people from a non-English speaking background. To the best of your knowledge are those people able to converse easily in English?

PN20

MS SMITH: To the best of my knowledge the people on my shift certainly are.

PN21

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Was the agreement the subject of some explanation from the employer prior to the vote occurring on it?

PN22

MS SMITH: Yes, it was.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Ms Smith. Mr Bakewell, I'm just wondering whether you might clarify for me the process that was followed by the employer to ensure that the persons from a non-English speaking background were able to understand the terms of the agreement?

PN24

MS SMITH: Yes, as I understand it, Senior Deputy President, there were a number of meetings conducted by both company management representatives and employee representatives and the steps that were taken were to ensure that those people do understand English, although they might not be from a non-English speaking background.

PN25

Mr Getgood and Ms Smith know these employees intimately and were fully satisfied that those employees understood what was being said to them, and in addition to that those employees were given an opportunity to take up any issues or points of clarification with the appointed employee representatives, or with the human resource team.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Bakewell. Ms Smith, I'm going to ask Mr Bakewell some questions about the agreement. Do you have a copy of the agreement?

PN27

MS SMITH: Yes, I do.

PN28

THE SENIOR DEPUTY PRESIDENT: My questions do not invite Mr Bakewell to change any of the terms of the agreement, they are questions that arise either as a result of my desire to clarify the intention of the parties about particular provisions, rather than simply hoping you don't have a dispute over that provision. Or, they are questions that arise as a result of the need to consider particular provisions of the agreement that might impact on certification.

PN29

If you want to comment or seek clarification of any of my questions, feel free to hop up and tell me just that, otherwise, I will assume that unless you tell me otherwise, you are in agreement with Mr Bakewell's responses. Mr Bakewell, can I take you to clause 2.3. With particular reference to 2.3.3, I would understand the reference to employees and their unions as being simply an objective of the agreement, rather than any particular provision that bestowed any obligations on a union not party to this agreement?

PN30

MR BAKEWELL: That is correct.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 7, which is: The Relationship To The Parent Award.

PN32

MR BAKEWELL: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 7.3 says:

PN34

The parties are committed to the award continuing to cover the basic standard of employment in the industry.

PN35

How should I understand the intention of the parties with regard to that provision?

PN36

MR BAKEWELL: The notion, Senior Deputy President, is that the parties acknowledge the award's position as a safety net and a safety net for the purpose of the no disadvantage test in negotiations.

PN37

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Thank you. I have noted clause 11, Mr Bakewell and congratulate the parties on the simplicity of its wording.

PN38

MR BAKEWELL: Thank you, Senior Deputy President.

PN39

THE SENIOR DEPUTY PRESIDENT: Clause 13 is the: Dispute Settlement Procedure. With particular reference to 13.3 I have noted the limitation on the capacity of the Commission to arbitrate, such that that arbitration is limited to the interpretation, application or process of implementation of a term in this agreement. Given that the agreement is to be read in concert with the award, do the parties intend that limitation to apply to disputes which have as their genesis award provisions, or is it simply limited to agreement provisions?

PN40

MR BAKEWELL: It would be both, Senior Deputy President.

PN41

THE SENIOR DEPUTY PRESIDENT: Section 3 and clause 14 relates to: Wage Increases. Are you able to provide me with a wages schedule, Mr Bakewell?

PN42

MR BAKEWELL: Yes, I think I'm in a position to do that, Senior Deputy President.

PN43

THE SENIOR DEPUTY PRESIDENT: Before you do so, I'm just wondering whether it might be shown to Ms Smith first of all.

PN44

MR BAKEWELL: Certainly.

PN45

THE SENIOR DEPUTY PRESIDENT: Ms Smith, you may not be in a position to confirm that that is in fact the correct wages schedule. If you are not I don't want to force you to do so now. I'm happy to give you time to look at it over the next few days.

PN46

MS SMITH: Sir, yes, I'm not 100 per cent sure because I'm on permanent night shift so my shift attracts penalties, so the base rate I'm really not sure.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, well, I'm very happy to give you - well, how long would you need to confirm that that is an agreed schedule? I have absolutely no reason to believe it is not but I would rather clarify the issue.

PN48

MR BAKEWELL: Perhaps a week or so.

PN49

THE SENIOR DEPUTY PRESIDENT: Do you want two or three days?

PN50

MR BAKEWELL: Take it back and - - -

PN51

MS SMITH: I probably could get it done tomorrow, quite easily.

PN52

THE SENIOR DEPUTY PRESIDENT: Well, perhaps I could ask you to do so over the next, say, three days. If you could confirm to Mr Bakewell your agreement, either to Mr Bakewell or to Mr Getgood your agreement, then I take it that one of those people could then advise my office. Are you happy with that approach?

PN53

MS SMITH: Sure.

PN54

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Bakewell, clauses 14.4 and 14.5.

PN55

MR BAKEWELL: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: In effect, appear to establish an arrangement whereby if Electrolux agreed to wage increases in excess of those set out in this agreement, then there is a capacity for that difference to be passed on to employees. There are two questions that arise, first of all, is it the intention of the parties to seek a variation of this agreement in such a circumstance? Or, is it simply the intention to pick up those higher amounts?

PN57

MR BAKEWELL: It is an intention to pick up the higher amounts, the latter of the two approaches.

PN58

THE SENIOR DEPUTY PRESIDENT: Secondly, if a higher amount is agreed in a particular agreement, then should I take it that that higher amount would apply from the relevant date set in that alternative agreement?

PN59

MR BAKEWELL: That is correct.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 22 relates to: Interplant Transfers. Does this agreement apply in the extent that an employee is transferred to another Electrolux plant, or is it the case that whichever agreement applies in that other plant will then govern employment?

PN61

MR BAKEWELL: The latter of the two approaches, Senior Deputy president.

PN62

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I then take you to the memorandum of understanding. First of all, should I understand that memorandum of understanding was also forwarded to employees with this agreement?

PN63

MR BAKEWELL: Yes, it was.

PN64

THE SENIOR DEPUTY PRESIDENT: Secondly, am I correct in understanding that with particular regard to 1.2.3, the efficiency measures, or KPIs are arrived at having regard to the number of washing machines, clothes driers and dishwashers produced, which might be outside the scope of the work undertaken by the Plastics Production employees at Beverley? Or, is the performance bonus simply limited by what the Plastics Plant employees themselves do?

PN65

MR BAKEWELL: I might get some instructions, sir, if I may?

PN66

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN67

MR BAKEWELL: Senior Deputy President, it is what is produced in plastics - and if I could just explain why the reference is made in 1.2.3. Plastics area produce pre-fabricated plastics products that are used in other Electrolux products who are regarded as their customer, so for example the washers, clothes driers, dishwashers, etcetera, are the downstream customers from the plastics area and what they produce goes into those products and that is why there is a reference to those other areas.

PN68

THE SENIOR DEPUTY PRESIDENT: I see. Having regard to that 1.2.3, the total number of washing machines, clothes driers and dishwashers - - -

PN69

MR BAKEWELL: Yes.

PN70

THE SENIOR DEPUTY PRESIDENT: - - - does operate to form the base, if you like, upon which the bonuses are then calculated?

PN71

MR BAKEWELL: That is correct.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bakewell. Ms Smith, do you need to seek to clarify any of the issues that Mr Bakewell has addressed, or are you in agreement with his responses?

PN73

MS SMITH: No, I'm in agreement.

PN74

THE SENIOR DEPUTY PRESIDENT: All right, thank you. I can indicate to the parties that I'm satisfied that the agreement is of a nature which enables consideration pursuant to division 2 of Part VIB of the Act, that means that I'm satisfied the agreement deals with matters that are about the relationship of this employer and its employees. I can also indicate to the parties that I'm satisfied that the agreement itself meets the requirements of the Act insofar as it was arrived at through a process consistent with section 170LK.

PN75

I am similarly satisfied that the agreement does not fall foul of the provisions of section 170LU, so as to prohibit certification. I'm not able to reach a final conclusion about section 170LT, until such time as I can confirm the agreement of the wages schedule that I've been provided with which I will call E2, is in fact provided to me on an agreed basis.

EXHIBIT #E2 WAGES SCHEDULE

PN76

THE SENIOR DEPUTY PRESIDENT: I would expect to be advised that it has been agreed and on that basis I would propose to certify the agreement from the date upon which I received that advice. If for some reason there is a problem and the parties are not agreed that E2 represents the wages schedule, then I will call the matter back on to see whether we can sort out that difference.

PN77

If however I can certify the agreement the certificate will detail the various clauses about which I sought clarification. It will not include the answers that I've been given because those are recorded on the transcript of these proceedings. That certificate will be sent out to the parties within a couple of days of my receipt of advice that the wages schedule is agreed. Now, Mr Bakewell, are you happy with that approach?

PN78

MR BAKEWELL: Very, Senior Deputy President.

PN79

THE SENIOR DEPUTY PRESIDENT: Ms Smith, are you happy too? Well, on the basis that I would expect to be able to certify the agreement, I will congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and the employees and, for my part, I hope I don't need to see the parties during the life of this agreement. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [1.49pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E1 EMPLOYER'S NOTICE OF INTENTION PN5
EXHIBIT #E2 WAGES SCHEDULE PN76