AG2004/8252, Transcript of Proceedings [2004] AIRCTrans 5101 (24 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 2656
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSIONER

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/8252

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Another for
certification of the M&B Civil Pty Ltd and the
Australian Workers' Union Enterprise Agreement
2004

ADELAIDE

9.30 AM, THURSDAY, 16 DECEMBER 2004

PN1

MR J. HANSON: I appear for the Australian Workers' Union.

PN2

MR J. MIDDLETON: I represent M&B Civil.

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I've read the statutory declarations and I've read the agreement. The only question I have about the information contained on the statutory declarations perhaps need to be directed to you, Mr Middleton. Can I refer you to paragraph 6.4 of those statutory declarations. Was the draft document circulated to employees on 8 September subsequently changed at all?

PN4

MR MIDDLETON: The draft document was discussed with employees at a final meeting in November and the employees and the AWU representative, Mr Peter Lamps - we agreed to increase the rate of increase for the second and third year of the agreement. Other than that the agreement was unchanged.

PN5

THE SENIOR DEPUTY PRESIDENT: I see. So when the employees receive the agreement in its final form?

PN6

MR MIDDLETON: It would have been late November, I'd have to check my diary.

PN7

THE SENIOR DEPUTY PRESIDENT: You see what's underpinning that question is that there is a requirement in the Act that employees have at least 14 days notice of the - a 14 day opportunity to have the agreement in its final form before they vote on it.

PN8

MR MIDDLETON: Right.

PN9

THE SENIOR DEPUTY PRESIDENT: Now, it appears to me that on the basis of the information contained in the statutory declarations the vote occurred on 2 December.

PN10

MR MIDDLETON: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: And if employees received the agreement in its final form in late November it may be that there is a difficulty in terms of that 14 day requirement. So I will need some form of confirmation from the parties about the date upon which the employees received the agreement in its final form. Now, I'm quite happy - I don't expect you to necessarily have the answer to that question today - - -

PN12

MR MIDDLETON: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: You can provide me with that answer. Now, the parties will be quite able to work for themselves whether that minimum 14 day requirement has been met. I should say it's 14 day clear day period.

PN14

MR MIDDLETON: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: So day 1 is the day after the employees are given the document or the document is made available to them. If the parties advise me that that 14 day requirement detailed in section 170LJ of the Act has been met then that will answer my question. If on the other hand the parties do their arithmetic in terms of the 14 days and discover that the 14 day minimum was not met on this occasion then, without another vote, I'm not going to be able to consider the application for certification because the Act requires that that is a pre-condition for consideration of the application.

PN16

Now, that's not the end of the world in that the option then exists for the parties to vote again on the agreement at any point, it could be tomorrow provided the agreement is not changed from the document that was provided to the employees in late-November and presumably explained to employees. So that they are the two options that I'm outlining to you.

PN17

One is that you might come back and tell me the dates upon which the agreement was made available to employees such that I can be satisfied the 14 day requirements has been met. But if it has not been met the parties may prefer, rather than repeating the whole process, to simply submit the agreement to a further vote of employees. Do you have any questions about that approach, Mr Middleton?

PN18

MR MIDDLETON: No, I understand.

PN19

THE SENIOR DEPUTY PRESIDENT: All right. Mr Hanson, are you happy with that approach?

PN20

MR HANSON: I'm quite happy with that approach. My understanding though, Senior Deputy President, is that the document was circulated in early September. I did have brief discussions with Peter Lamps about this very issue before I left the office this morning. My understanding is that the final document was circulated among the membership in early September but I will get written conformation of that perhaps and present that to you in due course.

PN21

THE SENIOR DEPUTY PRESIDENT: All right. I'll leave that question with the parties. If the parties are anxious to progress certification of the agreement over the next few days then obviously you will need to move on that question fairly quickly given the time of the year. I don't have any other questions about the process that was followed in this matter but I will move to address some questions about the actual terms of the agreement. Can I take it that you've both got copies of the agreement?

PN22

My questions do not invite either party to rewrite the document. They simply go to clarifying the intention of the parties about various provisions that I need to take into account in this matter. Mr Middleton, would you rather be the recipient of the questions or would you rather me direct the question to Mr Hanson?

PN23

MR MIDDLETON: It's probably appropriate that they be directed to me.

PN24

THE SENIOR DEPUTY PRESIDENT: All right then. Mr Hanson, you would know from other matters that you should feel free to either add or detract from anything that Mr Middleton says. If you don't do so, I'll assume that you are in agreement with him.

PN25

MR HANSON: Thank you, Senior Deputy President.

PN26

THE SENIOR DEPUTY PRESIDENT: You may also take the questions on notice and take them back to Mr Lamps if you need to. Mr Middleton, can I take you to clause 2.1 which is the definitions clause. Just to be clear, the award in that definitions clause is defined in quite specific terms so should I understand then that the - whatever provisions and monetary amounts are included in that award as at 14 March 2003 will apply for the duration of the this agreement?

PN27

MR MIDDLETON: That was the intention.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. That's certainly the way I read it. If I can then take you to page 4, and again as part of that definitions clause, the definition of remote work assumes some significance in the context of this agreement. Should I understand, first of all, that employees engaged on remote work would not be engaged in other work for M&B Civil?

PN29

MR MIDDLETON: Not under this agreement.

PN30

THE SENIOR DEPUTY PRESIDENT: I see. Is it possible that employees may switch under this agreement and work under another agreement?

PN31

MR MIDDLETON: That's right, Commissioner.

PN32

THE SENIOR DEPUTY PRESIDENT: And if so, how are issues such as entitlements and accumulations dealt with?

PN33

MR MIDDLETON: The accumulations are done separately for each profit centre and the Moomba or the remote - Cooper Basin profit centre is one profit centre and our other profit centre is the Metropolitan Adelaide area.

PN34

THE SENIOR DEPUTY PRESIDENT: I see, thank you. If I can then take you to clause 3 which is the date of operation. As I'm understanding the provisions of that clause the parties intend the agreement to apply from the date of approval or certification of the agreement? Is that the case?

PN35

MR MIDDLETON: That's correct, Commissioner.

PN36

THE SENIOR DEPUTY PRESIDENT: And its nominal expiry date would be three years from that date of certification; is that the case or is it three years from 2 December 2004?

PN37

MR MIDDLETON: 2 December, Commissioner - three years from 2 December.

PN38

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 6 relates to occupational health and safety. It references safety policies in what I think you'll find is the second sub-clause (b) working down the page. The sub-clauses go (a), (b), (c). (d) and then (a), (b), (c), (d), (e) again. If you look at the second (b) - - -

PN39

MR MIDDLETON: Yes, I - - -

PN40

THE SENIOR DEPUTY PRESIDENT: Should I understand that those safety policies are documented, that they are readily available to employees and that they may be changed over the life of the agreement?

PN41

MR MIDDLETON: That's correct, Commissioner.

PN42

THE SENIOR DEPUTY PRESIDENT: Clause 7 talks of an integrated management system. It concludes with the sentence that reads:

PN43

The involvement of the employee in the preparation and implementation of this management system is essential to its success and will be the most important measure used by M&B to assess the productivity and efficiency provided by the employee.

PN44

How should I understand that clause translates to expectation of employees?

PN45

MR MIDDLETON: The management system is a quality safety environmental risk management system and it involves for quality keeping records of work that's done and materials; for safety and environmental it's planning for risks and for that whole system to be successful we require the employees to follow the requirements of that management system in terms of assessing risks, addressing them, taking preventative action and completion of necessary paper work.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you. If I can then take you to clause 9. Inherent in clause 9 is an arrangement for the nominal ordinary time hours of work to be 38 per week. Should I understand that particularly on the fly-in fly-out work which is covered by this agreement, the employees work a normal roster which compresses work time so it occurs over each of the seven days of the week and then have a certain amount of time off site?

PN47

MR MIDDLETON: That's correct.

PN48

THE SENIOR DEPUTY PRESIDENT: Is there a fixed pattern in terms of that roster?

PN49

MR MIDDLETON: Yes, there's three weeks including flying time and one week off.

PN50

THE SENIOR DEPUTY PRESIDENT: I see. And is that one week off paid for?

PN51

MR MIDDLETON: No.

PN52

THE SENIOR DEPUTY PRESIDENT: I see. In terms of that one week off, is it fair for me then to understand that two of those seven days off would be weekend days?

PN53

MR MIDDLETON: Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: And one would be a rostered day off paid for by the cumulation system under that 38 hour week system?

PN55

MR MIDDLETON: No, there's no rostered days off in this agreement.

PN56

THE SENIOR DEPUTY PRESIDENT: I see. Given that I have asked you to go away and check on the dates upon which the agreement was provided to employees, Mr Middleton, would you also be able to assist me in that the Act requires that I review the agreement in terms of what is call the no disadvantage test. So I need to look at the award and in contrast with the agreement provisions. Now, what I would like from the parties is a chart that compares for a 28 day roster the provisions of the agreement with those that would be applicable in terms of the award.

PN57

In that regard the award - it is predicated on employees being paid on a Monday to Friday week.

PN58

MR MIDDLETON: Yes.

PN59

THE SENIOR DEPUTY PRESIDENT: So that having developed that chart it will show that employees would be paid under the award for four weeks and under the agreement for three weeks albeit at a higher rate of pay.

PN60

MR MIDDLETON: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: Now, I would expect that the chart would incorporate recognition of the total hours worked under those sort of rostering arrangements in the areas covered by the agreement.

PN62

MR MIDDLETON: Yes. I understand, Commissioner, originally I did prepare this agreement as an AWI and I did prepare those sort of charts - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Yes.

PN64

MR MIDDLETON: Since it has moved to an Enterprise Agreement I haven't maintained that but I will be able to resurrect that and present that information.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, to update it, thank you. Now perhaps before providing it to me, could I ask that you take steps to show either Mr Hanson or Mr Lamps - - -

PN66

MR MIDDLETON: Certainly.

PN67

THE SENIOR DEPUTY PRESIDENT: - - - so that the material to be provided to me is provided on an agreed basis.

PN68

MR MIDDLETON: Certainly.

PN69

THE SENIOR DEPUTY PRESIDENT: And at the conclusion of the hearing my associate will give you an email address so that you can email it in to expedite consideration of the matter. Now, if I then go to clause 11. Clause 11 has a preamble that says:

PN70

This clause is only applicable to when employees are working on Santos Limited sites.

PN71

Now, the scope of the agreement is not limited just to the Santos sites. It talks about remote work areas. Is there any work to be covered by this agreement which is not encompassed within that concept of Santos Limited sites because if there is the follow up question goes to what rates of pay would then apply?

PN72

MR MIDDLETON: We have been working predominantly on Santos sites under the predecessor agreement to this agreement. There are oil producers in the Cooper Basin that we do limited work for but the rates of that we charge them are the same as we charge for Santos.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, well, are you able to help me then as to what the intention of the parties was in specifying that the clause is only applicable when employees are working on Santos Limited sites?

PN74

MR MIDDLETON: The underpinning - or that the foundation to this agreement is an AWU agreement for the Cooper Basin and the intention was that it was applied to the Cooper Basin predominantly where Santos Limited sites are. Whether Mr Hanson is able to provide - - -

PN75

THE SENIOR DEPUTY PRESIDENT: Well, I suspect you can see the difficulty that I'm alluding to here - - -

PN76

MR MIDDLETON: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: - - - in that you've got an agreement with a relatively broad scope clause and yet you've got a rates clause which is limited to one aspect of the scope of the work. It may be that the parties want to consider that in terms of a possible undertaking about rates of pay, but that's not a matter I'll foist upon you.

PN78

MR MIDDLETON: Certainly.

PN79

THE SENIOR DEPUTY PRESIDENT: Other than to say that unless this issue is clarified I'm going to be in some difficulty looking at the application of that no disadvantage test if there are no rates of pay set for all of the areas where work might be undertaken within the scope of this agreement. Mr Hanson, do you want to say anything on that issue or do you want to take that as a question on notice that the parties might confer about and advise me?

PN80

MR HANSON: Senior Deputy President, I'm moderately confident that the rates of pay, as outlined in clause 11, are for each of the various sites covered by the agreement as specified in clause 2. My understanding from reading clause 11 was that it applies to all Santos Limited sites. I think clause 2 outlines the various sites and, therefore, they would apply across. Of course not being involved in the creation of this agreement, I can never be 100 per cent certain of that but I can take that back to Peter Lamps, but that's my reading of it.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. I'm happy to give you some time to confer with both Mr Lamps and Mr Middleton on that issue, Mr Hanson.

PN82

MR HANSON: Thank you, Senior Deputy President. Clause 13 relates to accommodation and travel. The preamble to that question talks of the provision of reasonable board and lodging or the payment of an allowance as an alternative. In terms of that allowance, is that the allowance that is specified in clause 13.3?

PN83

MR MIDDLETON: No, that's a different allowance. That's a specific allowance for a specific instance where we have, on occasions, people camping either in caravans or in accommodation where there is no messing provided and those are meant for those specific occasions. The general allowance - what we tried to do here is say: we'll take a reasonable approach to provision of board and lodging if there's no board and lodging provided by anyone else and it may be at other accommodation and we'll meet those costs for the employees. But it was unknown what specific instances would come up that would require that.

PN84

THE SENIOR DEPUTY PRESIDENT: I see. So that - it appears to me that looking at that preamble in clause 13 that there are three points on spectrum that have been identified there. One end of the spectrum is the provision of reasonable board and lodging. At the other far end of the spectrum is the payment of a camping allowance in situations where either the employee is staying in a camp or is residing in a caravan park or caravan and providing their own catering arrangements. And somewhere in the middle are accommodation arrangements that might provide for messing or they might provide for accommodation which is not considered to be reasonable in which case there is a negotiated amount.

PN85

MR MIDDLETON: That's correct, Commissioner.

PN86

THE SENIOR DEPUTY PRESIDENT: Now if I go back to that - the worst case scenario of the employee staying, for instance, in a caravan and providing their own catering or messing arrangements, is that the - is that the amount that is specified in 13.3 then? In particular in the last line of the table under the - 13.3?

PN87

MR MIDDLETON: That's correct, Commissioner.

PN88

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 19 relates to long service leave. As I understood the remote locations definition and the scope of work that might be covered by this agreement, is it conceivable that employees might undertake work in the State of Queensland?

PN89

MR MIDDLETON: That's correct, Commissioner.

PN90

THE SENIOR DEPUTY PRESIDENT: And should I understand then that notwithstanding that the employees - the employment base would be considered to be South Australia for the purposes of those long service leave arrangements?

PN91

MR MIDDLETON: That's correct.

PN92

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 21.3 relates to redundancy. The last paragraph on page 16 say that:

PN93

Only employees engaged on a 21/7 roster under this agreement will have $50 per week paid into an approved redundancy trust on their behalf.

PN94

There are two questions here. Should I understand that the word "only" might be a misprint - it should be "any" employees or is it the case that the $50 payment is only paid relative to employees who are engaged on 21/7 roster?

PN95

MR MIDDLETON: The intention here, Commissioner, was that on occasions we need to fly people in for a shorter period to do specific work usually over 2 or 3 days and the intention was that they wouldn't be eligible for an additional $50 first payment. So under this agreement these employees are - on 21/7 would receive the $50.

PN96

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. And secondly, with respect to those employees engaged on the 21/7 roster are there three lots of $50 payments made or four?

PN97

MR MIDDLETON: It has been - - -

PN98

THE SENIOR DEPUTY PRESIDENT: In any one four week period?

PN99

MR MIDDLETON: It has been four. The definition of "burst" is that if they do any work in a particular week then they are eligible for the burst payment. Our employees usually fly in or fly out on a Tuesday, Wednesday or Thursday, so on each week there is some work done.

PN100

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 25 relates to confidential information. Should I understand that clause is referring to information which M&B or a client for whom M&B are undertaking work have specifically identified as confidential?

PN101

MR MIDDLETON: That's correct, Commissioner.

PN102

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Mr Middleton. Now, Mr Hanson, I'm taking it that with the exception of those clauses that we particularly identified or - you do not have any issue with any of Mr Middleton's responses?

PN103

MR HANSON: Not at all, Senior Deputy President.

PN104

THE SENIOR DEPUTY PRESIDENT: All right. Mr Middleton, within what sort of time frame do you expect you might be able to come back to me on those issues? I don't want to rush you but I think it only fair to let you know that if the parties want me to consider this application pre-Christmas, you will need to have something to me by close of business next Monday. I can't even guarantee then that I'll be able to get to it pre-Christmas but I'll endeavour to do so.

PN105

MR MIDDLETON: Well, I'll endeavour to - - -

PN106

THE SENIOR DEPUTY PRESIDENT: Beyond that date I'm in some difficulty. I've simply made too promises to people to be able to give you any assurances after that date.

PN107

MR MIDDLETON: Certainly. I believe I should be able to get all the information to you by the Monday. The employees break for Christmas on the Tuesday, so I'd like to have the representative on site take another vote if that's needed by that time and get back to you on close of business Monday.

PN108

THE SENIOR DEPUTY PRESIDENT: All right. And obviously what ever you're coming back to me on, you'll will need to liaise with Mr Lamps or Mr Hanson about.

PN109

MR MIDDLETON: Certainly.

PN110

THE SENIOR DEPUTY PRESIDENT: All right. If on the basis of that information I'm able to certify the agreement a certificate will be forwarded out and that certificate will detail the various clauses about which I've sought clarification. It will not detail the answers that I've been given today and the answers to my questions that the parties have taken on notice because those will be recorded on both the transcript and retained on the commission's file.

PN111

I do need to stress that if you are going to go back out for another vote, then there can be no changes made to the document that I have before me. If the parties want to change the document, that's their prerogative, but you would then need to allow a further 14 days and ensure that some explanation of the terms of that agreement are provided to employees.

PN112

MR MIDDLETON: Certainly.

PN113

THE SENIOR DEPUTY PRESIDENT: All right. Mr Middleton, are you happy with that approach or have you got any questions about it?

PN114

MR MIDDLETON: No, I'm happy with that.

PN115

THE SENIOR DEPUTY PRESIDENT: Mr Hanson, are you happy with that approach or have you got any questions about it?

PN116

MR HANSON: I'm happy with that, Senior Deputy President.

PN117

THE SENIOR DEPUTY PRESIDENT: Very well. I'll adjourn the matter on that basis but perhaps before I do so I take the opportunity to wish both of you the compliments of the season.

PN118

MR HANSON: Thank you.

PN119

THE SENIOR DEPUTY PRESIDENT: I adjourn the matter.

ADJOURNED INDEFINITELY [10.05am]