AG2004/8230, Transcript of Proceedings [2004] AIRCTrans 4950 (17 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 2603

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2004/8230

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the National Union of Workers - South
Australian Branch and Another for
certification of the Smorgon Steel Metals
Distribution (Ottaway) Certified Agreement
2004 - 2007

ADELAIDE

3.40 PM, TUESDAY, 7 DECEMBER 2004

PN1

MR D. TRENOUTH: I appear on behalf of the National Union of Workers.

PN2

THE DEPUTY PRESIDENT: I note there's no appearance for the employer. There is, however, a statutory declaration on the file. There's also one matter that I will need to raise with you, and we will have to make arrangements, if necessary, for the employer to be involved in the process.

PN3

MR TRENOUTH: Deputy President, this is an application made pursuant to Division 2, Part VIB, of the Workplace Relations Act 1996 between the National Union of Workers and Smorgon Steel Metals Distribution. This application is in relation to an agreement in writing about matters pertaining to the relationship between the employer, Smorgon Steel Metals Distribution, a constitutional corporation, and all persons, who at any time that the agreement is in operation, are employed in part of a single business whose employment is subject to the agreement.

PN4

In accordance with section 170LJ, the employer has made the agreement with one or more organisations of employees. Each organisation has at least one member employed on the part of the single business. The agreement was approved by a valid majority of the employees to be bound by the agreement.

PN5

THE DEPUTY PRESIDENT: Perhaps you just might announce your appearance?

PN6

MR C. ZADOW: I represent Smorgon Steel Metals Distribution.

PN7

THE DEPUTY PRESIDENT: Please take a seat. Yes, Mr Trenouth?

PN8

MR TRENOUTH: Thank you, Deputy President. The agreement was approved by a valid majority of the employees to be bound by the agreement, and the employer made reasonable steps to ensure employees had in excess of at least 14 days before approval was given to the agreement in writing and the terms of the agreement explained to all employees. Deputy President, the agreement has been generally approved by a valid majority of the employees. The terms of the agreement have been explained in accordance with 170LT, Part VII. The agreement, in clause 13, includes procedures for preventing and settling disputes, and the agreement is due to expire on 15 March, 2007.

PN9

There is just one other matter I would like to raise, Deputy President. In an exchange of letters between the company and the union in relation to some matters that are not actually contained within the enterprise agreement, we would like to, both parties, place a copy of this agreement on the file just in case something goes down the track and we made need your assistance, so if I could just tender a copy of that documentation?

PN10

THE DEPUTY PRESIDENT: Mr Zadow, you are aware of this correspondence?

PN11

MR ZADOW: Yes, I am.

PN12

THE DEPUTY PRESIDENT: You have no objection to it being put on the file?

PN13

MR ZADOW: I wrote it, so I'm very happy with it.

EXHIBIT #A1 LETTER SIGNED BY MR ZADOW ON 28/10/2004

PN14

THE DEPUTY PRESIDENT: I note that it will be placed on the file for future reference.

PN15

MR TRENOUTH: On that basis, Deputy President, the parties therefore seek your approval of the application, pursuant to section 170LT.

PN16

THE DEPUTY PRESIDENT: Mr Trenouth, I did foreshadow just one matter that I might invite some further submissions on. Not surprisingly, perhaps, this arises from the decision of the High Court in the Electrolux case. It concerns clause 40.11, the journey insurance. Now, I raise this matter reluctantly in the sense that I think this process has a tendency to otherwise detract from what I think is a very beneficial and commendable agreement, but you will appreciate, Mr Trenouth, that with the High Court's pronouncement of its ruling on matters pertaining and, indeed, notwithstanding the recent legislation to ensure the validity of agreements prior to the Electrolux decision, that legislation does not, at least on face value, deal with agreements that are certified after the Electrolux case in which case the Commission must be careful to ensure that the agreement does pertain to all relevant matters.

PN17

In that context, I have considered the other terms of the agreement, including the consultation and other provisions, and in my view, they do certainly pertain to the requisite relationship. The only matter that I would seek some submissions on is the journey insurance. Indeed, I effectively seek some clarification as to the way that will operate in practice or may well have operated in practice and secondly, whether in that light it pertains with a view to being persuaded that it does so pertain to the requisite relationship.

PN18

MR TRENOUTH: Yes, Deputy President. I can only say, I must admit, that I'm not an expert in the matters arising out of the Electrolux decisions.

PN19

THE DEPUTY PRESIDENT: I think we are all learning as we are going.

PN20

MR TRENOUTH: I did have the pleasure of sitting down for about 3 hours listening to the senior advocate before Senior Deputy President O'Callaghan last week on another matter. He raised quite a number of matters there. The only comment that I can really make is our understanding of the journey insurance being in terms of a relationship between the employment conditions is that it is ancillary to the employment relationship between the employer and the employees just based on the fact that if it does happen to employees, they are covered in terms of their contract of employment. I really can't make any further comment on that.

PN21

If the Commission does have some concerns about that, I would have to seek an adjournment of this matter. I'm under instructions from my National Office not to try and allow any matters, not to be pertained in the agreement.

PN22

THE DEPUTY PRESIDENT: Not to wing it?

PN23

MR TRENOUTH: Yes.

PN24

THE DEPUTY PRESIDENT: I understand completely. Look, in that context, I think one of the issues that might be relevant is the way in which this clause is intended to operate in practice. In that context, the question that I would ask is this. Is the insurance cover - I understand that the purpose is to provide coverage for journey accidents. Now, obviously that provides a level of benefit income maintenance, and death and permanent disablement cover for a worker who is injured to and from the journey to work, so I understand that element of it. What I'm not clear on is whether the policy is held by the employer or whether or not the employer acts as an agent for the employees to have a policy. You would appreciate there might well be a significant difference there, in terms of the matters pertaining in question.

PN25

MR TRENOUTH: I'm not particularly sure about the terms of the agreement.

PN26

MR ZADOW: No, I would have to take it away and double check.

PN27

MR TRENOUTH: Normally in a lot of these situations, the company actually will take out insurance on behalf of the employees but obviously the matter is then handled through a broker.

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MR TRENOUTH: The same as the journey accident insurance the union has for its own members. We pay a broker for the service for that, but any claims, we do the paperwork but it goes back to the broker to handle matters in relation to that relevant clause of insurance.

PN30

THE DEPUTY PRESIDENT: Look, it just strikes me that - and look, I may be able to be persuaded that in either event, it is a matter pertaining but it would seem to me that the strongest proposition is where the insurance cover is held by the employer but the entitlement, therefore, is then provided by the employer, albeit as a result of the insurance cover. It would seem to be a weaker argument where the employer, in a sense, merely acts as the broker or the arranger of the insurance, and the insurance in the end is organised and the commercial arrangements are between the workers and the insurer.

PN31

Now, I think in that case, there are at least some issues that might arise or a lot of parallels there to certain matters that have been clearly held as not pertaining, so look in that context, Mr Trenouth, I think I will take your earlier suggestion, on the basis that I don't want to wing it either, because the consequence of this obviously is not that the parties - sorry, the Commission's own statutory responsibilities, but just as importantly, the validity of your own agreement. I say that because other than that matter, I have no doubt that the Commission can and should certify the agreement.

PN32

So in that context, what I propose to do is to adjourn the matter with liberty to apply on the expectation that the parties will do some research in relation to the practical operation of clause 40.11, journey insurance, and make any submissions that they wish to in light of that in terms of the matter that I've raised. I will deal with it on the basis of a written submission. If either party wants the matter reconvened to make further oral submissions, I will do that as well.

PN33

MR TRENOUTH: You are quite happy to take written submissions?

PN34

THE DEPUTY PRESIDENT: I'm quite happy to take written submissions. Thank you, Mr Trenouth. Mr Zadow, is there anything that you wanted to add on behalf of the company?

PN35

MR ZADOW: No, that is fine, thank you.

PN36

THE DEPUTY PRESIDENT: As I already indicated, I am satisfied that, other than on that matter, the Commission would otherwise have before it an instrument capable of certification pursuant to the Act. In reaching that conclusion, I note the process leading to the agreement - also I have some reasonable historical understanding of the circumstances in this workplace, and I have every confidence, based on the evidence before the Commission, that a valid majority of employees have endorsed the agreement. The agreement also clearly meets the no disadvantage test, and providing that it is an agreement that pertains and that all provisions of the agreement pertain or are ancillary, all machinery, then in my view, the Commission can and should certify the agreement.

PN37

I will adjourn the application on the basis that I've outlined. I look forward to the submissions, and hopefully to being convinced that the Commission can certify it in which case I will do that. If not, I will obviously let you know that and we will have to deal with the consequences. Very well, thank you.

ADJOURNED INDEFINITELY [3.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER SIGNED BY MR ZADOW ON 28/10/2004 PN14