AG2003/10717, Transcript of Proceedings [2004] AIRCTrans 543 (10 February 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1347

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/10717

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Mackenzie Intermodal Pty Limited and
Others for certification of the Mackenzie
Intermodal Pty Ltd Enterprise Agreement 2003

ADELAIDE

10.57 AM, FRIDAY, 30 JANUARY 2004

PN1

MR S. SHEARER: I appear on behalf of Mackenzie Intermodal Proprietary Limited and with me, MR D. ROSE, who is an employee representative and a member of the consultative committee, and MR D. CASSIANI, who is the Chief Financial Officer and who is the person who in fact co-ordinated the vast bulk of the development of the agreement from its outset.

PN2

THE COMMISSIONER: Yes, I understand who is at the bar table. I guess that will be fine. You can proceed in this issue.

PN3

MR SHEARER: Thank you. Your Honour, this is an application under division 2 of Part VIB of the Act for a section 170LK agreement between Mackenzie Intermodal Proprietary Limited and its employees. As you may have noted at the first paragraph of the text of the agreement it actually refers to a section 170LJ agreement. This was in fact a clerical error that went unnoticed by the company until after the agreement was finalised.

PN4

All parties right from the commencement though understood that they were - including the union, the Maritime Union of Australia - understood that they were working on an agreement between the company and the employees. I have brought that with me today, which I requested from the company, a replacement page to correct that to 170LK.

PN5

THE COMMISSIONER: That will be fine, Mr Shearer, yes, thank you.

PN6

MR SHEARER: Okay, thank you. The employees, having been advised of their rights in accordance with 170LK elected representatives, including a representative of the Maritime Union of Australia, to the consultative committee. There was a series of meetings over quite a period of time that resulted in an agreement and a notice of intent being put to the employees on 10 and 11 November last year in accordance with 170LK of the Act.

PN7

A secret ballot vote was then taken subsequently on two days because of the two locations, 25 and 26 November. The result of that was 28 votes in favour and 8 votes against, thus a valid majority approved the agreement. The agreement unfortunately, however, was not signed because of the availability of signatories until 23 and 24 December and it was lodged on 24 December. So we're seven or eight days outside the 20-day period and we would therefore need to apply for an extension of time.

PN8

THE COMMISSIONER: Any change in the composition of the workforce in that period of time, Mr Shearer?

PN9

MR SHEARER: No, none whatsoever.

PN10

THE COMMISSIONER: None at all?

PN11

MR SHEARER: No.

PN12

THE COMMISSIONER: I just explain that with 28/8 that's fine, but if for example, you know, half the employees left and another half came on or something it could change the balance of the voting considerably. That's what I'm interested in but - - -

PN13

MR SHEARER: Definitely not the case.

PN14

THE COMMISSIONER: Okay, right thanks.

PN15

MR SHEARER: Thank you. The agreement would be for a one-year period only in accordance with clause 6 of the agreement. The agreement primarily is about establishing a working environment that's conducive to effective company performance and you would have noticed that the bulk of the clauses up to around about clause 20, 21 are about things that affect company performance and they really are in the nature of clarifying the way everybody will work.

PN16

The agreement then goes on to provide, in clause 24, for the rates of pay. This agreement covers clerks and under 24(c), they get a 4 per cent wage increase over the current award rates. Mechanics, who are covered by 24(d), they also get a 4 per cent wage increase over the award rates. Clause 24(b) addresses the local drivers, ie those who do journeys of under 500 kilometres and return. They receive increases ranging from $1 per hour for grade 8 to $2.25 per hour for grade 3, which is fork-lift and yard people, over and above the award rates and, of course, all of these provide base hourly rates upon which the award penalty rate structure continues to apply.

PN17

Clause 24(a), which addresses the long distance drivers provides for the adoption of the hourly-rate method in accordance with clause 19.4 of the Long Distance Award, the Transport Workers Long Distance Drivers Award, and uses an average speed of just 81 kilometres per hour, which I point out is less than the average speed assumed in the schedule of hours in clause 19.4.3 of the award for most of the journeys involved. The schedule in the award in 19.4.3 actually uses average speeds ranging from 75 to about 85. The company here is using 81, and most of their journeys are on routes that are in that schedule that use a higher average speed.

PN18

So in effect they are saying they will pay for more hours than the award would require and, of course, they're paying for the long distance drivers. They're paying the award hourly rates for both driving and loading, unloading, etcetera and the award overnight allowances and the like. So as far as long distance drivers go, they would be paid the award hourly rate at an average speed of 81 which, in effect, means compared to the award they're going to get that award hourly rate for slightly more hours than is assumed in that schedule in the award.

PN19

Clause 13 of the agreement provides that employees will at all times at least be paid the then current award rates, so that if award rates shift that will be matched. Now, there is a slight inconsistency in the way clause 13 is worded because it does seem to imply in the second line of that that safety net allowances are not picked up, but the second paragraph of that clause very clearly says that the company will commit to paying the minimum award rate for the term of the agreement. That is, if the minimum award rate were at any time above the rates being paid by the company, then the award rates would apply.

PN20

That's a slight internal inconsistency that certainly was not intended by the company to mean that safety net increases wouldn't be adopted. They would, of course, be because they will move with the award rates. There are a couple of points in the statutory declarations that I would just like to correct, and these are of the nature of just minor clerical issues that the company was not aware of, not being an expert in the application of the Act.

PN21

In question 1.4 the reality is: this agreement does not apply to a part of a single business. It does in fact apply to the single business and the tick should not have been placed in that box. The company principally has a depot at Bordertown and a depot in Adelaide, at Port Adelaide, and employees at both depots are covered by this agreement. At question 4.2 in the stat dec the Maritime Union of Australia has advised the company - did advise the company, that it wished to be bound. In fact Mr Jamie Newland of the MUA signed the agreement on 24 December 2003 and my understanding is that he has confirmed as recently as this morning, that whilst he hadn't had the opportunity to get around to it, he is in fact signing off on the stat dec in the same terms as the other stat decs. We have endeavoured to get that for you today but - - -

PN22

THE COMMISSIONER: So I can expect a statutory declaration from Mr Newland.

PN23

MR SHEARER: Indeed. Yes, that is what I've been informed of this morning, yes. In question 5.2 of the stat dec and also in 5.10 there is a gap where the date of signing should have been entered and that date is of course the 24th, being the date on which the - - -

PN24

THE COMMISSIONER: Well, it would actually be - the date the written agreement was made with a valid majority, that would have been on 26 November.

PN25

MR SHEARER: You're quite right. Yes, sorry, the date it was made not the date it was signed.

PN26

THE COMMISSIONER: The date it is made is technically when the vote is taken.

PN27

MR SHEARER: Yes, when the vote is taken. So that would be 26 November.

PN28

THE COMMISSIONER: The 26th as I read it, and that means that there is then that issue of the extension of time.

PN29

MR SHEARER: Correct.

PN30

THE COMMISSIONER: But I don't have an issue with the extension of time. I mean, I think under the circumstances I have no problem with that.

PN31

MR SHEARER: Thank you.

PN32

THE COMMISSIONER: I mean, that is 5.2 there, I notice that that was absent in each of the stat decs but - I mean, it is made clear in any event by your answer to 5.4.

PN33

MR SHEARER: That's right.

PN34

THE COMMISSIONER: I do understand with these statutory declarations the format is horrendous actually trying to work your way through this and it is difficult to know which box to tick and which not to tick. What I'm going to have to do, Mr Shearer, is ask for replacement statutory declarations.

PN35

MR SHEARER: We're happy to do that.

PN36

THE COMMISSIONER: I'm quite happy if you have these ones back but I think the easiest thing is just reissue new statutory declarations so that I've got them on file.

PN37

MR SHEARER: Yes.

PN38

THE COMMISSIONER: I accept what you say and I have no problem with that, and I'm quite happy to allow you to do that. I will approve the agreement today subject to those statutory declarations being on file and also subject to of course the declaration coming in from Mr Newland, and confirmation that the MUA wants to be bound.

PN39

MR SHEARER: Yes, certainly, thank you. The other one I would just point out, and again I think it just highlights that when companies do these agreements essentially under their own steam - which I think is a good thing - it's not always clear to them what exactly is meant by some provisions of the award or the stat decs and under 5.12 a box has been ticked in relation to variations to the agreement but that was a misunderstanding within the company that really referred to earlier amendments to the agreement in the process of its development as distinct from it not being amended after it was formally put to the employees.

PN40

THE COMMISSIONER: Yes.

PN41

MR SHEARER: So that tick shouldn't have been there and it won't be in the replacement stat decs. That's all I have, your Honour.

PN42

THE COMMISSIONER: Yes, just a couple of questions. In clause 11, which is the disputes clause, there is reference there on page 6, I think it is, of the agreement there is reference to the Commission, a little "c" commission. I presume, looking at subparagraph (h) of clause 11 there in the middle of page 6:

PN43

Should the foregoing fail to resolve the issue within a reasonable time the matter or matters in dispute should be referred by either party to the commission for conciliation and if necessary arbitration.

PN44

I presume that commission is meant to be the Australian Industrial Relations Commission.

PN45

MR SHEARER: Yes, indeed.

PN46

THE COMMISSIONER: I'm quite happy, we'll leave it as it is but we will just note for the record that is - I mean, you might say that is pretty obvious but sometimes these things aren't all that obvious. The other issue dealing with that is, I note that in the early part of that dispute settling procedure it talks about the process of mediation which is all fine, but I am looking at subparagraph (b) where the parties to the agreement agree to allow either party to refer the matter to mediation if the matter cannot be so resolved at the workplace level. How are you going to determine who the mediator is?

PN47

MR SHEARER: The intention, as I understand it, is the parties would approach - I am just trying to remember the precise formal name, but there is an association of mediators in South Australia. I have suggested to the company this morning, when the point was brought to my attention, that would be a good place for them to go and get a mediator from there or, of course, they could come straight to the Commission.

PN48

THE COMMISSIONER: I mean, you can go to Billy the Goose, it doesn't really matter who the mediator is but the fact - I just want to know what happens if you can't agree? Someone says we're going to go to Bill Smith and someone Bob Jones, how are you going to decide?

PN49

MR SHEARER: I would have thought in the end, Commissioner, if that became a difficulty then (h) would come into play.

PN50

THE COMMISSIONER: Then you would to come to the Commission, yes.

PN51

MR SHEARER: So I think there is a safety net there.

PN52

THE COMMISSIONER: I would have thought that is probably the case as well, Mr Shearer. I just raise that because it is an interesting provision. We don't often get reference to broad mediation like this in agreements and it is fine, no problem with that, but I just thought I would make that clear for the record.

PN53

MR SHEARER: Certainly.

PN54

THE COMMISSIONER: I think they are the only questions I had on the agreement, as such. As I say, I note the agreement is already, in practical terms, in effect from 1 December 2003. I mean the rates are being paid and whatever. Could I just explain to the parties that the purpose of certification is - and I am happy to certify the agreement from today's date, 30 January 2004 will be the date of certification. I note the agreement is already in operation in the sense that you are already paying wage rates, going back from 1 December, that is fine.

PN55

It just simply means that today's date is the date of certification. Then it becomes formally enforceable from today, right, but it does not affect the date of operation going back to 1 December last year. The other thing is, Mr Shearer, while I am happy to give an extension of time, and I am happy to basically provisionally approve this agreement, it will be subject to those statutory declarations coming in from - there is four of them - in fact there will be five when we get one from Mr Newland - and it will be subject to those statutory declarations coming in and all being consistent with one another. I reserve the right, if they are not consistent with one another, if there is some issue there - reserve the right to call the parties back, so I will deal with it on a provisional basis today.

PN56

MR SHEARER: I give you an undertaking to have those by Monday.

PN57

THE COMMISSIONER: That is fine. Time-wise that is fine. If we get it on Monday, then we can issue the paperwork immediately. I think you have covered the points that needed to be tidied up in the statutory declarations. The best way to deal with this is to rip them up, put them in the bin and start again. Thank you, Mr Shearer. I can indicate then for the record, the Commission has an application, under division 2 Part VIB of the Act for certification of an agreement pursuant to section 170LK.

PN58

The Commission has considered the application and the terms of the agreement that are the subject of the application. I have perused the statutory declarations on file of Nick Lisk, General Manager, MacKenzie Intermodal Proprietary Limited, the employer in this matter, and of David Rose, Mark Meecham and Jamie Cannerwell, who are all employed by the company and duly elected and nominated by the relevant employees to act on their behalf.

PN59

I also note that the Maritime Union of Australia is intending to be, or has advised, it wishes to be bound by the agreement and I am waiting on a statutory declaration from Mr Newland of that organisation to confirm that and I expect that to be available to the Commission early next week. I also note, in dealing with this matter, an extension of time is required. The agreement was made on 26 November 2003, the relevant documentation was not filed until 24 December.

PN60

However, having heard the explanations from Mr Shearer this morning, being aware there was no change in the composition of the work-force in the relevant time and the vote result, which was 28 in favour and 8 against the agreement, noting that result would not have been altered in those few days the agreement was delayed, I intend to and do in fact extend the time for this application to be made. I do so pursuant to section 111(1)(r) of the Act.

PN61

I note that the Transport Workers' Award 1998, the Transport Workers' (South Australia) Award, the Transport Workers' Long Distance Drivers Award 2000, the Metal Industry (South Australia) Award and the Clerks' (South Australia) Award are all relevant awards for the purposes of the no disadvantage test and having pursued the agreement, I am satisfied that the agreement passes the no disadvantage test as required by section 170LT(2) of the Act.

PN62

I note also the agreement, clause 11, includes procedures for preventing and settling disputes between the parties as required by section 170LT(8), and given the explanation from Mr Shearer today as to how that clause intends to operate, I am satisfied that that passes the statutory test. I am also satisfied, from the statutory declarations, that a valid majority of persons employed at the time genuinely approved the agreement, and the explanation of the terms of the agreement took place in ways that were appropriate, having regard to the particular circumstances and needs of the relevant employees in accordance with section 170LT(7) and LT(5) of the Act.

PN63

Accordingly, and subject to new statutory declarations being lodged with the Commission in line with what Mr Shearer indicated today, and subject also to the statutory declaration being received from the MUA, the Commission certifies or expresses its intention, I suppose, to certify the MacKenzie Intermodal Proprietary Limited Enterprise Agreement 2003 with effect from today's date, 30 January 2004 and in accordance with clause 6, to remain in force for a period of one calendar year from 1 December 2004, which is, for all practical purposes, the date on which the terms of the agreement have been applied by the parties.

PN64

The necessary documentation, as I say, confirming certification will issue from my office as soon as possible but one would expect within a few days. It will probably actually be not next week but the week after - well, I don't know, there are other issues. My associate and I have got other matters on and we are in the country. He is away next week but will issue as soon as possible but I will indicate that unless something goes dramatically off the rails, the formal certification date will be today's date and I expect things to flow through fairly well from here. Is there anything further from anyone for the record? I should ask, Mr Rose, I didn't ask you to say anything but I presume that you had nothing to add. I mean, were you happy with the process?

PN65

MR ROSE: Yes, I was on the committee, went to every meeting and yes, everything went along well.

PN66

THE COMMISSIONER: No hassle at all in terms of procedure - - -

PN67

MR ROSE: No, no issues at all.

PN68

THE COMMISSIONER: I should have asked you before but I assumed that was the case. All right, we will deal with it on that basis, gentlemen and we stand adjourned.

ADJOURNED INDEFINITELY [11.17am]