AG2003/10544, Transcript of Proceedings [2004] AIRCTrans 595 (13 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 183

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/10544

APPLICATION FOR CERTIFICATION OF
AN AGREEMENT WITH EMPLOYEES
(DIVISION 2)

Application under section 170LK of the Act
by Saint-Gobain Abrasives Pty Ltd for
certification of the Saint-Gobain Abrasives
(Kewdale) Certified Agreement 2003

PERTH

9.50 AM, TUESDAY, 3 FEBRUARY 2004

THESE PROCEEDINGS WERE CONDUCTED BY
VIDEO LINK AND RECORDED IN PERTH

PN1

MS C. HOBBS: I appear on behalf of the company, Saint-Gobain Abrasives.

PN2

MR D. FORDE: I appear on behalf of the employees of Saint-Gobain.

PN3

THE DEPUTY PRESIDENT: Ms Hobbs, please commence.

PN4

MS HOBBS: If it pleases the Commission, firstly, I would like to apologise for my ineptitude with regard to the typing of this agreement and making the amendments that you so correctly pointed out of the errors that I had made. Unfortunately, my secretarial support is not with us at the moment as she has been off ill in hospital and my typing skills leave a lot to be desired. Having said that, Commissioner, this agreement is an agreement between Saint-Gobain Abrasives and their warehouse employees that currently number three at Kewdale.

PN5

Employees were advised at the end of October that we wished to negotiate an agreement and provided them with a list of issues that we wanted to discuss. These discussions took place in December and, apart from the items that we were giving to the employees, such as improved redundancy agreements and everything else, the only thing that we wanted to change which may or may not have been an issue for the employees was a clause for redundancy, that if the employees were gainfully employed in another area that they would not be entitled to a severance package and also a new clause redefining no further claims during the period of the agreement as you would be aware, to cover issues raised in Emwest and with Amcor.

PN6

Other than that, as I say, other items were to give new entitlements to the employees that really fit with what is going on in the market, etcetera. We also did want to change to a fully comprehensive agreement, because we believe that that is, I think, easier for our own understanding and certainly easier for an employee to have a copy of the enterprise agreement which covers all aspects of employment. We gave the employees an opportunity to have representation by an outside third party, as none of them are in the union, and they chose not to do that. We negotiated with all three employees because it was pointless to have a representative when there were so few in number. They had 14 days to review the agreement.

PN7

They had a copy of the agreement. And they have since been sent a copy of the differences between the award and the agreement as it is, detailing what those differences are, which I believe are all more beneficial than negative. And with that in mind, and given the agreement of the employees, I respectfully ask the Commission to certify this agreement.

PN8

THE DEPUTY PRESIDENT: Thank you for that, Ms Hobbs. I wondered if you would clarify for me a little further your references to the Emwest and Amcor cases.

PN9

MS HOBBS: Your Honour, the Emwest decision, I believe, enabled employees to take protected action for items that were outside their original enterprise agreement and, therefore, we endeavoured to put everything that would be covered by the jurisdiction of the Commission within that enterprise agreement to circumvent that aspect. And with the Amcor, those employees, I believe, even though had further employment with another Division of Amcor, were entitled to a redundancy package. And we feel that if we provide on-going employment for our employees, be it in the job they have or another one that they accept. It is not any job that is offered. If they choose to accept a job that is offered, then they forego any entitlements to redundancy.

PN10

THE DEPUTY PRESIDENT: Thank you for that and for your consideration of those issues. I do have some questions which I would seek to address to yourself and also to Mr Forde, as appropriate. I commence with the statutory declaration, questions 6.1 and 6.2. And I wondered if you, Ms Hobbs, on behalf of the applicant could confirm the correct answer in relation to the title of the award.

PN11

MS HOBBS: Yes, Commissioner, that award, it was correctly pointed out, is 2000, not 1998, I think is what I had in the statutory declaration.

PN12

THE DEPUTY PRESIDENT: The statutory declaration refers at 6.2 to 1996.

PN13

MS HOBBS: Sorry. '96. And it should have been 1998.

PN14

THE DEPUTY PRESIDENT: Yes. And do I have it, then, your confirmation that the award referred to in 6.2 is in fact the award which should be referred to in 6.1?

PN15

MS HOBBS: Yes, sir, that is correct.

PN16

THE DEPUTY PRESIDENT: As corrected by year to be 1998?

PN17

MS HOBBS: Yes, sir.

PN18

THE DEPUTY PRESIDENT: Thank you. I turn with my next query to the agreement to clause 5 which refers to the date of commencement of the agreement. It is referred to in clause 5 as being 13 December 2003 but as I understand, you would be aware now the certified agreement does not come into operation until it is certified by the Commission. And I wondered if you could confirm, and also Mr Forde to confirm in due course, your corrected understanding of the commencement of the agreement.

PN19

MS HOBBS: Yes, sir. I understand that it officially does not commence until the agreement is certified. The intention under that was that we had reached an agreement with the employees and we would make payment from that date, despite the fact that it wasn't a certified agreement at that date.

PN20

THE DEPUTY PRESIDENT: Thank you. Mr Forde? And if you could indicate your understanding to the Commission as well of the date of commencement as is required by the Act.

PN21

MR FORDE: Yes, your Honour, I do. I have been listening carefully and that is exactly how it was explained to me.

PN22

THE DEPUTY PRESIDENT: And so it is your understanding that it comes into operation under the Act on the date on which it is certified?

PN23

MR FORDE: Yes, your Honour.

PN24

THE DEPUTY PRESIDENT: Thank you for that. I turn, now, Ms Hobbs, to clause 20.1 in the amended agreement which refers to a 3 month probationary period. And as I understand, you would be aware that reference did not form part of the original agreement which was filed on 22 December and it would, in fact, or does vary the agreement voted on by the employees. That reference, therefore, cannot be contained in the certified agreement. Therefore, the wording of clause 20.1 of the original agreement will remain. What is required by the Commission is that yourself and Mr Forde confirm on transcript that whilst it is intended that the probationary period of employment with the applicant be 3 months, the original wording is that which is to be used in the agreement to be certified by the Commission. Ms Hobbs?

PN25

MS HOBBS: Yes, Commissioner, that is correct. The original agreement as drafted did not include the 3 month probationary period. It just referred to a probationary period. Upon your queries of some of the errors in the original document and the stat. dec. that supported that, I misunderstood and thought that you wanted a period included. We have a company policy that is a 3 month probationary period, that is a document, and we work to that already and it is understood that already. But the document as originally drafted and submitted to you as voted by the employees does not include that 3 month probationary period and I understand that it will be certified as such.

PN26

THE DEPUTY PRESIDENT: Thank you for that. And Mr Forde?

PN27

MR FORDE: Yes, your Honour, I understand that mix up there.

PN28

THE DEPUTY PRESIDENT: Thank you for that. I turn, finally, to the issue of the no disadvantage test and I would require confirmation that the agreement passes the no disadvantage test as of today's date. Ms Hobbs?

PN29

MS HOBBS: If it pleases the Commission, I believe that I have submitted to you under separate cover the rates of pay for our staff against the award. I believe that the differences in the enterprise agreement and the award also have been detailed to you with the variances. The only difference has been, if you would call them, negative differences that we do not pay leading hand allowance because we pay that in a normal hourly rate as an added payment. And all other benefits such as long service leave, personal leave, overtime and, therefore, those other benefits are all in excess of the award and, therefore, I believe the agreement as drafted does not in any way - sorry, does pass all aspects of the no disadvantage test.

PN30

THE DEPUTY PRESIDENT: Thank you for that. From the reading of the information on wages is to be put into an envelope and to be sealed on the file of the Commission in order to preserve confidentiality, as that is the understanding of the Commission of the position of the parties, can you confirm for me that the comparison provided shows that for two levels, level 2 and for level 3, that there is a positive differential in favour of the agreement in both cases as of 15 December 2003, being the date on which the information was categorised under? Ms Hobbs?

PN31

MS HOBBS: Yes, Commissioner, I can confirm that.

PN32

THE DEPUTY PRESIDENT: In relation to the award figure which is given there, it does come under a date 3 June 2003 but I understand from you have just said that that is the latest figure and that the agreement does pass the no disadvantage test as of today's date. Is that correct?

PN33

MS HOBBS: Yes, sir, it does. The award was last varied on 3 June and not due to be varied again until June 2004.

PN34

THE DEPUTY PRESIDENT: Thank you. Mr Forde, if I may have your submission on that point. Whether you are in agreement.

PN35

MR FORDE: We are definitely in agreement, your Honour.

PN36

THE DEPUTY PRESIDENT: Thank you for that.

PN37

MR FORDE: The employees are very happy with the way it was handled and what they have achieved.

PN38

THE DEPUTY PRESIDENT: Thank you for that. And, Mr Forde, while you are on your feet, do I take it that you are in support of the Commission certifying the agreement and are of the view that your fellow employees would have a similar view?

PN39

MR FORDE: Most definitely, your Honour.

PN40

THE DEPUTY PRESIDENT: Thank you for that. Ms Hobbs, did that complete all the submissions that you wish to make? The Commission has certainly now concluded its questions.

PN41

MS HOBBS: Yes, sir, it does. Thank you very much.

PN42

THE DEPUTY PRESIDENT: Thank you for that. I turn now to the certification of the agreement, noting that it is an application pursuant to Part VIB, Division 2, section 170LK of the Workplace Relations Act 1996 to certify an agreement to be known as the Saint-Gobain Abrasives (Kewdale) Certified Agreement 2003. Having heard Ms C. Hobbs on behalf of Saint-Gobain Abrasives Pty Ltd, Saint-Gobain, and Mr D. Forde on behalf of the employees, and having read the statutory declaration of Ms C. Hobbs on behalf of Saint-Gobain, I am satisfied that the agreement filed relates to a constitutional corporation, namely, Saint-Gobain Abrasives Pty Ltd, ACN 068431920. The agreement passes the no disadvantage test.

PN43

It was made in accordance with section 170LK and a valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved the agreement. The explanation of the terms of the agreement was appropriate. It includes procedures for preventing and settling disputes between the employer and the employees whose employment would be subject to the agreement and it specifies a nominal expiry date not more than 3 years after the date on which the agreement would come into operation. I am further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, it will be certified with effect from 3 February 2004, to operate in accordance with its terms from that date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [10.08am]