C2004/1722, Transcript of Proceedings [2004] AIRCTrans 740 (25 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 6125
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2004/1722
C2004/1723

TENIX DEFENCE SYSTEMS PTY
LTD (DRAUGHTING, TECHNICAL
AND SUPERVISORY EMPLOYEES)
AWARD 2000

TENIX DEFENCE SYSTEMS PTY
LTD AWARD 2001-2004

Applications under section 113 of the Act
by Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union to
vary the above awards re casual conversion

MELBOURNE

10.16 AM, FRIDAY, 13 FEBRUARY 2004

PN1

HIS HONOUR: These are matters, C2004/1722 and 1723. They are respectively applications to vary the Tenix Defence Systems Pty Ltd (Draughting, Technical and Supervisory Employees) Award 2000 and the Tenix Defence Systems Pty Ltd Award 2001-2004. The matters were lodged in Sydney on 29 January this year. Following an examination of the files, it appeared that the matters were more appropriately to be listed in Melbourne having regard to the seat of Tenix's operations but, as I understand, there isn't a great deal of disagreement between you anyhow, but that is the first listing of the matters.

PN2

MS A. DONNELLAN: I appear on behalf of the AMWU.

PN3

MR N. OGILVIE: I seek leave to appear on behalf of the employer, Tenix Defence Pty Ltd.

PN4

HIS HONOUR: Yes, Ms Donnellan.

PN5

MS DONNELLAN: Your Honour, in relation to AW807056, that is the Tenix Defence Systems Pty Ltd Award 2001-2004, our position is that we will request the Commission that the application be stood over with liberty for the AMWU to reapply. We are in a position of agreement to the company's proposal to have the issue be discussed through the EBA negotiations, which will be occurring later this year. Through those EBA negotiations the matter of the award is also subject to negotiation. I understand, your Honour, that all the documentation in relation to service, etcetera, were forwarded to your chambers on 6.2.04. I just wanted to seek clarification of that matter to ensure that you had all the relevant documentation before you.

PN6

HIS HONOUR: Yes, this is in relation to service and the like?

PN7

MS DONNELLAN: That is correct, your Honour.

PN8

HIS HONOUR: Yes, I think particularly having regard to the presence of Mr Ogilvie, service can be taken to have been properly executed and the like if that is the case. Yes.

PN9

MS DONNELLAN: Yes, your Honour. In relation to the other award, your Honour, that is the Tenix Defence Systems Pty Ltd (Draughting, Technical and Supervisory Employees) Award 2000, the situation is a little more complex. The current award states that employees will be in no worse position than under the Metal Engineering and Associated Industries Part 2, and the Part 2 component of the Metals Award in relation to casual conversion realise on clause 4.2.3 of Part 1 of the award.

PN10

The company has indicated that they are not consenting to our application on the basis of those references in the Tenix Award to the Metals and Engineering and Associated Industries Award. We are not particularly satisfied with the situation, where one award relies on another, however, we would be prepared to hear arguments put by the employer as to why they are not in a position to provide a consent to our application to vary, and in particular wish to hear the employer's arguments in relation to how many casuals are employed by the company under this award, and how many casuals have been employed over the past year, and whether the company intends to engage any casuals.

PN11

We, on the basis of hearing such submissions, may be in a position to revise our position if we can obtain clearly in these proceedings today a guarantee from the company that if at any stage in the future they were to engage casual employees, then the company would guarantee to apply the provisions of the Metal Engineering and Associated Industries Award in relation to casual conversion. If it pleases the Commission.

PN12

HIS HONOUR: Mr Ogilvie?

PN13

MR OGILVIE: Thank you, your Honour. I will deal with the production award, which is the Tenix Defence Systems Pty Ltd Award 2001-2004. The position that has been put by the AMWU is agreed. That award provides to production employees of Tenix at Williamstown. In conjunction with that award there is also a certified agreement in place, which is the Tenix Defence Pty Ltd Certified Agreement 2001-2004. The nominal expiry date of that agreement is 9 April this year and there are arrangements in place for the company to commence negotiations with the three respondent unions to that agreement this month and I think there have been meetings set down for 26 February.

PN14

Traditionally, the way in which the renegotiation of the relevant certified agreement has taken place is that relevant terms of the award are also negotiated in conjunction with the terms of the certified agreement and on each occasion when a new agreement has been certified, there has been relevant changes to the award. So we would see that the appropriate course has been agreed to. Any discussions in relation to variation of the underlying award would take place at the same time as negotiations in relation to a new certified agreement to replace the existing one.

PN15

And those negotiations are going to commence shortly. Just to satisfy the Commission in terms of the timing, there are currently no casual employees employed by Tenix under the terms of the Tenix Defence Systems Pty Ltd Award 2001-2004, and there haven't been any casual employees employed under that award since around 1994, so 10 years, and the company has no intention in the near future to engage casual employees under that award. So, the position in relation to the first matter is agreed.

PN16

In relation to the second application to vary, which is what the company calls its staff award, which is now the Tenix Defence Systems Pty Ltd (Draughting, Technical and Supervisory Employees) Award 2000, the company has only had the application in its hands since 9 February, which I think was Monday this week, and hasn't had a lot of time to consider the application. But the company's initial position is that the application by the AMWU is unnecessary.

PN17

The reasons we say that, your Honour, is that the terms of the award themselves incorporate by reference the relevant provisions of the Metals Award, and my understand is that the application to vary the Tenix Award is in the same terms as the relevant casual and part-time provisions of the Metals Award. If I could just hand to your Honour a copy - does your Honour have a copy of the Staff Award? I have got a copy to hand - - -

PN18

HIS HONOUR: I do, yes. I have a copy of each of the awards.

PN19

MR OGILVIE: The clause that I am referring to in the version that I have got is clause 7.1, under the heading General Conditions of Employment. Just for consistency, I think there has recently been a variation to this award by Commissioner Hingley. That might have renumbered that clause but the clause that immediately appears under the heading General Conditions of Employment, and it says that:

PN20

The conditions of employment to apply to employees covered by this award shall, in general terms, not be less favourable than those prescribed under the Metal Engineering and Associated Industries Award 1998, parts 2, 4 and 5 and the Metal Industry Superannuation Award. Some conditions may differ from Metal Engineering and Associated Industries Award 1998 Standards.

PN21

The company understands and has applied that clause to mean that matters not covered by this award, for example in this case, casual employment and part-time employment, the terms and conditions of employment for any employees we engage as casuals under this award, would apply the Metals Award terms. So in no circumstances, the application to vary this award is not necessary because the relevant provisions already would apply to any casual employees employed by Tenix, by operation of that clause and the terms in part 1 of the Metals Award.

PN22

The other reason we would say that is not necessary to make a specific variation to this award, again, the company hasn't had proper time to even consider its position, but the company has never employed any casuals under this award, and does not intend to employ in the near future any casuals under this award and, in fact, this award applies to colloquially the staff employees, so some technical supervisory and drafting employees. As of today's date, there are only four employees who are subject to the condition of this award.

PN23

Other employees in the same category are employed under the conditions of Australian Workplace Agreements which exclude the operation of the award. In those circumstances, we would say that the application by the AMWU to vary the staff award is not necessary because the provisions they are seeking to incorporate in the staff award would already apply by virtue of the incorporation of the terms of the Metals Industry Award. In those circumstances, our position is that the application should be withdrawn or dismissed by the Commission. If your Honour pleases.

PN24

HIS HONOUR: Thank you. Ms Donnellan?

PN25

MS DONNELLAN: Your Honour, we confirm the party's position in relation to the production award, that is the Tenix Defence Systems Pty Ltd Award 2001-2004. In relation to the other award, the Draughting, Supervisory and Technical Employees Award, our concern in relation to the comments that have been made by the company's representative with reference to the current clause 7.1 of the award is the reference that some conditions may differ from Metal Engineering and Associated Industries Award 1998 Standards.

PN26

I recognise that the comments that have been made by the representative of Tenix today go very close to providing a commitment by the company that in the circumstance that casuals may be engaged under the Draughting Technical and Supervisory Employees Award, then Tenix will or would apply the provisions of the Metal and Engineering Industries Award with respect to casual conversion. With that clarity in these proceedings today, our Honour, we will be prepared to withdraw that application to vary.

PN27

HIS HONOUR: Yes, thank you, Ms Donnellan.

PN28

MR OGILVIE: We are prepared to record on the transcript that in the event that the company engages casuals who would fall within the scope of this award, the terms and conditions in respect to casual employment and part-time employment which are the subject of this application, the company will apply the terms of the Metals Award to those employees. The company is not prepared to provide a guarantee to that effect to the extent that it is different, but the position that they are is that they will apply the Metals Award terms to those employees if they were to engage casuals in relation to the subject matter of this application.

PN29

HIS HONOUR: On that basis, I can accept that the application is formally withdrawn, Ms Donnellan?

PN30

MS DONNELLAN: I am a bit concerned about the lack of the provision of guarantee but I did hear the words stated that the company will apply those provisions if that was the circumstances they were confronted with engaging any casual employees on the future. On that basis, the AMWU is prepared to withdraw the application, your Honour.

PN31

HIS HONOUR: Thank you, Ms Donnellan. I note in relation to matter C 1722 of 2004 that there is a withdrawal of the application having regard to the undertaking read on to transcript by Mr Ogilvie who has appeared for Tenix. In that matter I order transcript so that that can be retained on the file. In relation to what is referred to as the production award, the Tenix Defence Systems Pty Ltd Award, I note that there is also a measure of agreement effectively having the matter to be stood over eventually, if necessary, to become part of a variation that may be associated with the negotiation of a replacement enterprise agreement for the site.

PN32

That arrangement is in accordance with the past practice. I will stand matter C 1723 of 2004 over generally. I will allocate the file to Commissioner Hingley for any future hearings so that, if it is necessary, that matter can be taken up with him, assuming of course, Commissioner Hingley is available and you have reached your conclusions. I don't mean to be too cryptic about that. I assume that sooner or later the panels will be varied and if Commissioner Hingley moves on, I am not suggesting he will be, then he will, no doubt, flick the file to somebody in due course. Very well. Thank you. The Commission will adjourn.

ADJOURNED INDEFINITELY [10.31am]