AG2004/7237, Transcript of Proceedings [2005] AIRCTrans 1418 (30 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11925-1

COMMISSIONER BLAIR

AG2004/7237

APPLICATION BY AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-VICTORIAN BRANCH AND ANOTHER
s.170LS - Agreement about industrial dispute (Division 3)
(AG2004/7237)

MELBOURNE

9.56AM, FRIDAY, 17 JUNE 2005

Continued from 17/12/2004

PN1

MR B LATTER: I am from Handweld Engineering.

PN2

MS A O'BRIEN: I am from Handweld Engineering.

PN3

MS C CHEW: I appear for the AMWU.

PN4

THE COMMISSIONER: Thank you. Who is the main spokesperson for the company?

PN5

MR LATTER: That would be myself, Brendan.

PN6

THE COMMISSIONER: Mr Latter. All right. Mr Latter, you have made an application under section 170LS indicating that you wish to - or there was an agreement reached under section 170LS, sorry, but you have made an application to deregister that agreement. Would you like to explain to the Commission the reasons why? Thanks.

PN7

MR LATTER: Yes. Basically, the company is not going very well at the moment. The owner of the company is an old man, he is not very well, he's run the company right down. He's appointed Allison and myself to take over control and running of the company with a view to purchase. We are looking at the moment at purchasing the company. Our guys on the floor do not like the EBA, they want individual Workplace Agreements which we're quite happy with. Everyone is individual, everyone wants something different out of that. We're happy to go with that. It will help us immensely, it will keep the doors to the factory open and keep the blokes in a job. With the EBA, Allison and I are not prepared to purchase the company under that agreement.

PN8

THE COMMISSIONER: Why, in terms of individual agreements, why would that assist you any better to keep the company running?

PN9

MR LATTER: We don't want to head down the track of the 36 hour week. We don't want to go towards rostered days off. We don't want it, our blokes don't want it. All right, now, to stay with the EBA we would have to follow those guidelines.

PN10

THE COMMISSIONER: Right. Who reached the agreement with the - - -

PN11

MR LATTER: I believe it was Brian Hand, the company owner. But we have never received copies of the EBA, I was just talking to Allison before, we didn't even know we were under two EBAs which apparently we are.

PN12

THE COMMISSIONER: What is the second one?

PN13

MR LATTER: Apparently there is a factory EBA and a construction EBA. That's on advice from the union.

PN14

THE COMMISSIONER: This is the workshop agreement, is it?

PN15

MR LATTER: Yes, that's the only one I was ever aware of but conversation with the union, they're telling us there is also a construction agreement which none of us know anything about.

PN16

THE COMMISSIONER: Okay. I am just - okay, thank you. Ms Chew?

PN17

MS CHEW: Thank you, Commissioner. Ali Mulepola, the relevant organiser for this agreement and for the site, had a conversation with various employees of the company on 3 June. Those employees are here today. It was a, how do you say, a hands free phone conversation where myself and the organiser were present on the union side and the conversation had taken place between the two employees here and, I believe, a third employee. What was revealed during that conversation, and I have a record of it here, was that the company contemplated bankruptcy at that stage and they said they were lucky to be open on that Friday. Now, this conversation was had on 3 June and I think the indication was that within a week's time they were concerned that the company would be closing. Mr Mulepola did his best to ascertain the reason as to what was going wrong and what the company's plans were and at that stage, Brendan, the manager of the company who had been appointed, instructed him that the company was now moving away from what it used to do, it wasn't going to work on construction sites anymore and that they were going to undertake an earth moving machinery business.

PN18

What he also informed Mr Mulepola was that the wages would not be cut and that the conditions would not be undermined. Mr Mulepola's response at that stage was, well if you're not going to be doing the kind of work that the agreement covers then the agreement does not bind you anyway. For your reference, Commissioner, the agreement expires on 31 June 2006. Mr Mulepola had endeavoured to make further communication with the company, I am not sure as to whether he was successful. The tone of the meeting, that conversation was certainly quite heated but it was certainly our clear understanding that the company had intended to move away from construction work on the site that is regulated by the agreement. Our view is, certainly, if the company intends to do work that is not covered by the union or by the agreement, they are not bound by the terms of it. Now, I don't believe that the company was aware that in order to terminate an LJ agreement they require the consent of the union.

PN19

I think Mulepola made that clear to them during that conversation and as a result it became very heated. What I would like to emphasise is that the information that we have been presented here this morning is very different to the nature of the conversation had that Friday afternoon. What we have heard this morning is that the company, that there are new purchasers to the company and that they would be working on site construction and that they would not be - they would prefer, whether they, the company, or the employees, would prefer not to abide by the
36 hour week rostered days off and other conditions on site. Now, I am not entirely sure which is the more accurate version of the company's direction but it certainly seems to me that the company hasn't had a clear indication, certainly from 3 June to today, 17 June, it is a different story. So the union is not entirely sure as to where the company is headed or what its true intentions are. I believe Mr Mulepola to contact the members who are covered by the agreement to actually determine what their feelings are about it.

PN20

But it is our view that if the company intends to continue with the nature of the work that is covered by the agreement then they are bound by the agreement. If it so happens that they are doing something entirely different and not covered by the agreement or by the union, then they are free to make another agreement or to pursue other ways, other means of negotiations in terms of wages and conditions. So my instructions are clearly that we oppose the cancellation of the agreement and also we have strong doubts as to what the company is presenting to you today simply because it contradicts what we were informed two weeks ago. If the Commission pleases.

PN21

THE COMMISSIONER: Mr Latter, do you wish to make any further comment?

PN22

MR LATTER: Sorry?

PN23

THE COMMISSIONER: Do you wish to make any comment?

PN24

MR LATTER: Yes. Basically, we have never received a copy of the agreement, we don't know what the terms and conditions obviously are on it because we have never - Ali's never seen it, I've never seen it. I had a comment on that. Ali's and my goal here now is basically earth moving machinery, just repair, maintenance, that sort of thing. Right? We are not involved in construction. We were, back when the agreement apparently was signed. We're not going that way, we're not going that path. We are basically a workshop, a repair and maintenance workshop.

PN25

THE COMMISSIONER: Have you had any discussions at all, Mr Latter, with the union?

PN26

MR LATTER: The phone call we've had from the union, that was about all. And that phone call, that was said, yes, that there was two agreements. Was that correct?

PN27

MS CHEW: Yes, I think the belief was that there was a workshop agreement and a construction agreement. We were quite happy to provide that, I have got an internet copy. I don't have a certified copy of either agreement, I have got internet copies which we are quite happy to supply to the company if that helps clarify what the terms and conditions are.

PN28

THE COMMISSIONER: Yes. There is one here. Mr Latter, my associate can copy the certified agreement for you. I have got to say if you have not seen the agreement, I find it a bit difficult to understand how you wish to have the agreement nullified when you haven't seen it. So it is very hard to understand how you know what the details of the agreement are if you haven't sighted the agreement. What Ms Chew puts is that if you intend to do work that is not covered by the agreement, well then you are not bound by it. But if you do intend to continue with work that can be covered by the agreement then you are. I think what we should do is, I won't make a determination at this stage whether the agreement should be terminated or not. My associate will provide you with a copy of the agreement that we have which is the workshop agreement. If there is a construction agreement, it might be easier for Ms Chew to provide that to you, but I think you do need to have some discussions with the union because both of you are, the company and the union are bound by that agreement. So you do need to have some discussions about it.

PN29

And once those discussions have occurred, if you are still of the view that you wish to have the agreement deregistered, then I suggest if you look at section 170MG of the Workplace Relations Act which covers the termination of a certified agreement and the process that has to be followed for that to occur. Okay? So I will adjourn today's proceedings but on the basis that copies of the agreements will be provided to you and you have discussions with Ms Chew. And obviously, they will have discussions with their members at the plant to determine what they want to do. Okay? All right. Thanks. Commission will stand adjourned.

<ADJOURNED INDEFINITELY [10.08AM]