AG2004/123, Transcript of Proceedings [2004] AIRCTrans 809 (3 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1429

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/123

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Pacific Marine Batteries Pty Limited and
Another for certification of the Pacific
Marine Batteries Certified Agreement 2004

ADELAIDE

10.57 AM, WEDNESDAY, 18 FEBRUARY 2004

PN1

MR C. STARR: I appear for Pacific Marine Batteries Pty Limited and with me is MR R. TURTON.

PN2

MR J. GRESTY: I appear on behalf of the Australian Manufacturing Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Starr, I have read the statutory declarations and the agreement in this matter. I note that the initial issue that will need to be considered relates to the extent to which an extension of time in accordance with section 170LM of the Act will be required. The agreement is some 24 days outside of the time limit set in that section. Can you advise me of the basis of any such request and clarify the status of the work-force over that period in question?

PN4

MR STARR: I can indeed, sir. I can advise and apologise for the fact that it was some 24 days over the time. I understand from the company's perspective, sir, that the time delay was basically in their control. The meeting of the employees was on the 19th - who accepted this agreement was on 19 December. There was the company close-down and difficulty of the company getting those signatures on the document, getting them witnessed by a Justice of the Peace and getting them to me. In regard to the employees, sir, I have spoken to the company and I can report that the composition of the work-force did not alter from the date of the agreement of the employees to the date of the lodgement of this agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN6

MR STARR: And further, sir, obviously, request you exercise your discretion in regard to the extension of time.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Gresty, does the advice provided to me by Mr Starr reflect your understanding of the status of the work-force?

PN8

MR GRESTY: It certainly is, sir. I spoke with our delegate late last week and asked the same question and he assured me that there was no change in the work-force at that time.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well. I will utilise the discretion provided under section 111(1)(r) of the Act so as to extend the time frame for lodgement of this application. Mr Starr, the second question that arises relative to the process whereby the agreement was reached goes to the date upon which the employees were provided with a copy of the final version of the agreement upon which they voted?

PN10

MR STARR: Yes, sir, you wish to know that date?

PN11

THE SENIOR DEPUTY PRESIDENT: If I can, thank you, yes.

PN12

MR STARR: I am advised by the company representative, sir, they were certainly aware and very conscious of the 14 days and that was adhered to. I am advised 5 December was the date that it was issued to employees, sir.

PN13

THE SENIOR DEPUTY PRESIDENT: So that if I were to ask you to look at paragraph 6.7 of the statutory declaration, which talks of the meetings that occurred over a 3 week period, at some point during that 3 week period you say to me that the employees were given a copy, or had ready access to the agreement in its final form, but that was at least 14 days before they voted?

PN14

MR STARR: Yes, I am, sir. And in fact, I am advised by the company that the agreement is, by and large, a reflection of the previous expired agreement but this document was given to all employees 14 days prior to the vote being taken.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you. And a final question for you. There are three persons from a non-English speaking background amongst the total number of employees. Am I to understand that notwithstanding those people coming from a non-English speaking background, they have a good grasp and understanding of the English language, so that they can participate in the process?

PN16

MR STARR: Yes. Apparently, they speak fluent English, sir.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Starr, I have no further questions about the process whereby the agreement was reached unless there is something else you want to say to me in that regard?

PN18

MR STARR: Not about the process, sir, but I was going to address you about the agreement itself but you might already be on my track.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, we will get to that in a moment. Yes. Thank you. Mr Gresty, can I take it that you are in agreement with Mr Starr's comments to me about the process whereby the agreement was reached?

PN20

MR GRESTY: Yes, we concur with those comments.

PN21

THE SENIOR DEPUTY PRESIDENT: Is there anything further you want to say about the process?

PN22

MR GRESTY: No, the process was carried out in the way previous agreements were reached and we have no problem with that, sir.

PN23

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you. Now, Mr Starr, is there anything you want to say to me about the agreement itself before I ask you a number of questions about it?

PN24

MR STARR: Yes, sir. I suppose the glaring one was the fact that there is reference in the document at appendix A to attachment A and, of course, you don't have attachment A. It was an oversight, sir, in the lodgement of it and what I would like to do is pass up attachment A. It certainly is part of the document. It was considered by the employees and again, sir, I am advised as a reflection of what has currently been the practice of a bonus arrangement where employees can achieve up to an additional maximum 2 per cent in addition to the prescribed increases in here of 5 per cent in the first year, 4 in the second and third years. If that was permissible, sir, if I could pass that up?

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Starr, you could pass it up. You might need to clarify for me though, am I to understand this attachment A that you are about to hand to me was provided to the employees as part of the package of material upon which they voted?

PN26

MR STARR: Yes, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: Or was it simply a case that employees understood that attachment A reflected the arrangements that had previously applied and were included in the predecessor agreement?

PN28

MR STARR: I am advised, sir, that the company provided an example to employees and that was provided certainly within the 14 days but the document, attachment A, is the actual factors to how the bonus system works. I must say, I read the document myself, sir, and tried to contemplate in my own mind as to what it meant. I am advised, sir, that the company and employees are well aware of it intimately, know how it works, like it, and obviously would like to see it continued.

PN29

THE SENIOR DEPUTY PRESIDENT: So that this document, which I will mark as PMB1 recorded as attachment A, wasn't provided to the employees with the actual agreement upon which they voted but is agreed by the parties to be the description of the bonus system which is referenced in appendix A?

EXHIBIT #PMB1 ATTACHMENT A

PN30

MR STARR: That is correct, sir.

PN31

THE SENIOR DEPUTY PRESIDENT: I see. Well, subject to anything Mr Gresty has to say to me about that, I would propose to retain that document on the Commission's file on the basis that it reflects an agreed understanding of what is referenced in clause 3 of appendix A, but I won't insert it in the agreement on the basis that it wasn't part of the material upon which employees voted.

PN32

MR STARR: Thank you, sir. I understand, sir.

PN33

THE SENIOR DEPUTY PRESIDENT: Is there anything else you want to say to me about the agreement, Mr Starr?

PN34

MR STARR: Apart from the fact, sir, that obviously, we are seeking to have the agreement certified under section 170LJ of the Act of the Pacific Marine Batteries Certified Agreement 2004. Agreement that the documents were provided to employees, obviously a full 14 days prior to their acceptance by valid majority on 19 December. The agreement obviously contains an avoidance of industrial disputes procedure in clause 10 and a no extra claims provision at clause 9 and I would submit that there is no reduction in the overall terms of the employees' conditions of employment.

PN35

Of course, the parties have agreed that the agreement shall operate from 1 January 2003 and remain in operation until 31 December 2006, would be my only comments and obviously, seeking your certification today, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Starr, can I refer you to clause 3 of the agreement and raise two questions? First of all, I am not inviting any change to the document but as I look at that document it appears to me that the parties may have intended to have inserted three additional words in there such that the clause was intended to read: that this agreement shall apply at Pacific Marine Batteries Pty Limited, Mersey Road, Osborne, South Australia, 5017 to all employees whose terms and conditions are regulated by the Metal, Engineering and Associated Industries Award. Is that instruction the intent of the parties?

PN37

MR STARR: That is the intent, sir, Senior Deputy President.

PN38

THE SENIOR DEPUTY PRESIDENT: And the second question that then arises goes to the extent to which that provision read in that way means that the agreement covers all of the employees of Pacific Marine Batteries, or whether or not there are other employees at Pacific Marine Batteries who would not be covered by this agreement?

PN39

MR STARR: I will just take some advice on that, sir. It is certainly not related to staff, sir. The intent clearly from the company's perspective and the employees' perspective it is covering the employees who would ordinarily be covered under the Federal Metals Award, Part I.

PN40

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 5 is the date and period of operation. It indicates that the agreement shall operate from the beginning of the first pay period to commence on or after the date of certification of this agreement and most particularly, shall remain in force for a period of 3 years. That does not correspond with the information provided in relation to 7.7 of the statutory declaration?

PN41

MR STARR: No, sir. Having read the document - - -

PN42

THE SENIOR DEPUTY PRESIDENT: It gives rise to another question that is related and so that I invite you to answer both of them in the one response, it gives rise to a question that goes back to appendix A in terms of the intention of the parties relative to the wage increases which are expressed on the basis of a finite date, as in a finite start date and a finite end date. So are you in a position to respond to both of those questions?

PN43

MR STARR: Yes, I am, sir, if I could just take half a second? Senior Deputy President, I am advised and clearly there is some friction between what it states in clause 5 and effectively what is in appendix A. I am clearly advised by the company, sir, that it is the intention of the company and employees that although the date and period of operation referred to in clause 5 does say from the date of certification, and it operates from the first full pay period afterward, it is the intent and desire of the company to apply these increases from 1 January 2004 in accord with appendix A and therefore this agreement would conclude on 31 December 2006.

PN44

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Could I then take you to clause 8 and I note that whilst the wage increases are stipulated in that clause, appendix A does not express the actual quantum of current wages?

PN45

MR STARR: No, sir, it does not.

PN46

THE SENIOR DEPUTY PRESIDENT: Do you have a wages schedule that does that?

PN47

MR STARR: I do indeed, sir. The reason why - - -

PN48

THE SENIOR DEPUTY PRESIDENT: You've come prepared, Mr Starr.

PN49

MR STARR: The reason why, sir, I might add is that the company obviously is conscious from its commercial position and it is a public document, that it did not want the wages included in the agreement. However, the document that has been passed to you, and Mr Gresty has a copy of, reflects effectively the three classifications within the company, that is the process worker, the leading hand rate and the maintenance fitter rate. Picking up the pre 5 per cent increase and reflecting obviously the five, the four and four increases for the duration of the agreement.

PN50

THE SENIOR DEPUTY PRESIDENT: I see, so this is being handed to me on the basis that it is an agreed document?

PN51

MR STARR: Yes, sir.

EXHIBIT #PMB2 SCHEDULE OF WAGE RATES

PN52

THE SENIOR DEPUTY PRESIDENT: Now, I understand then that the rates in there have been calculated in accordance with the agreed approach of the parties to the application of appendix A. In that regard, I refer to the words in clause 2 of appendix A which relate to a basic hourly increase. Is that the case? You have lightly answered my question by saying it is an agreed approach?

PN53

MR STARR: It is an agreed approach, Senior Deputy President.

PN54

THE SENIOR DEPUTY PRESIDENT: Clause 8(c) says that the wage increases specified in subclause (a) of this clause shall not be absorbed into any over award payment. It gives rise to a question as to whether or not there are rates paid in excess of those that are set out in the document PMB2?

PN55

MR STARR: Sir, I am advised that the rates passed up in PMB2 are the rates paid, there is nothing more than that. I understand the intention of it was to make it quite clear that these increases were not absorbed into any over award payment, of course, which the company had been making prior to this agreement.

PN56

THE SENIOR DEPUTY PRESIDENT: Thank you. I can then take you to appendix A, with particular reference to attachment A and clause 3 of that appendix, who reviews the bonus after the first year of the agreement?

PN57

MR STARR: Maybe if I get the company representative to explain a bit of the detail of that if I may, Senior Deputy President?

PN58

THE SENIOR DEPUTY PRESIDENT: Yes. I am not necessarily wanting someone to go into the detail of the bonus structure. I am just anxious to avoid a situation where I see you currently happy folk back again in a year's time, having an argument over whose job it is to review the bonus and upon what sort of foundation.

PN59

MR STARR: Sir, I am advised as you probably heard, sir, that it effectively is a review by the employer and employees involved in this agreement, including the union officials so it is a review of the parties of the agreement.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Starr. Mr Gresty, can I take it that you are in agreement with all of the information provided to me by Mr Starr?

PN61

MR GRESTY: Yes. I am, sir. We can only add that we spoke about some of this prior to appearing before you and it certainly appears - and especially with respect to bonuses - that the people actually involved have an absolutely total understanding of them, but a great deal of difficulty explaining how they actually work, to third parties. This bonus has been in place for a number of years and I don't recall ever being one dispute over it.

PN62

THE SENIOR DEPUTY PRESIDENT: Long may that continue, Mr Gresty.

PN63

MR GRESTY: My thoughts entirely, sir. With respect to the wage rates, whilst they are the wage rates actually being paid, there's nothing we are doing to discourage the company if they want to pay in excess of them, or not do that.

PN64

THE SENIOR DEPUTY PRESIDENT: Mr Gresty, one matter that I will take up with you and then seek Mr Starr's agreement to it, takes us back to the date and period of operation to the extent that the parties are putting to me their understanding of the agreement, such that I can be satisfied that the period of operation of the agreement is consistent with the requirements of section 170LT. Can I take it that you can both give me an undertaking that the agreement is intended to reach its nominal expiry date on 31 December 2006?

PN65

MR GRESTY: That is my understanding of it. Yes.

PN66

MR STARR: I confirm that, sir.

PN67

THE SENIOR DEPUTY PRESIDENT: On the basis of the information provided to me, I am satisfied the agreement was reached through a process consistent with that detailed in the Act. I am similarly satisfied the agreement itself meets the requirements of the Act. It contains the necessary dispute resolution provision, does not contain provisions which are contrary to the Act and on the basis of the agreed wages schedule, which will be retained on the Commission's file, it meets the requirements of the no disadvantage test. The agreement meets the requirements of the Act in terms of its nominal date of expiry, on the basis of the undertaking provided to me by the parties.

PN68

The certificate giving effect to the certification of the agreement from today, will be forwarded out to the parties in the next few days. It will refer specifically to that undertaking. It will also reference the other clauses of the agreement about which I sought clarification but it will not detail the answers to my questions because they are recorded on the transcript. Please don't feel obligated to ever exercise the dispute resolution provisions in this agreement, given that they have remained unused for so long. I congratulate you on reaching this agreement. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [11.21am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #PMB1 ATTACHMENT A PN30
EXHIBIT #PMB2 SCHEDULE OF WAGE RATES PN52