AG2005/2193, Transcript of Proceedings [2005] AIRCTrans 1645 (4 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12314-1

DEPUTY PRESIDENT MCCARTHY

AG2005/2193

APPLICATION BY SANDVIK MATERIALS HANDLING PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/2193)

PERTH

10.04AM, THURSDAY, 21 JULY 2005

PN1

THE DEPUTY PRESIDENT: Good morning. Mr Borlase, you’re appearing for Sandvik, I take it?

PN2

MR BORLASE: Yes, your Honour, I am.

PN3

THE DEPUTY PRESIDENT: There is no appearance for the employees, I take it?

PN4

MR BORLASE: No. I do have in the room, Mr John Goodall, who is the human resource manager of the company and also in the Court, if required by the Commission, is Mr Derek Brand, who is one of the employee representatives who was involved in the negotiations and the signed the agreement.

PN5

THE DEPUTY PRESIDENT: Yes. I have circulated the provisional certification report. There are a couple of items identified on that. One was with respect to the date that the notice of an intention to make an agreement was indicated to employees. When was that?

PN6

MR BORLASE: Yes, your Honour. The notice which is attached to the back of the statutory declaration, and that is the 1 June. I have another copy here for you.

PN7

THE DEPUTY PRESIDENT: I have got that here.

PN8

MR BORLASE: You have got that there?

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR BORLASE: Your Honour, it is important, I think, an issue which is noted there in the statutory declaration at 5.6 that you are aware of, in the process of determining whether to certify this agreement. And you will see from reading that agreement that it may not be strictly in line with the process which is identified in Section 170LK of the Act in terms of the type of notification required. You have raised it, I suspect in a slightly different fashion, in terms of your query in the certification report, relating to clause 1(3) in terms of whether it offends part 10(a) of the Act.

PN11

Now, by way of explanation for that, going back quite a number of years now, I suspect in the order of maybe six or seven years, there was company by the name of Beltreco which Sandvik purchased and there was a transmission of business. Now, when the company was Beltreco, the management of that company offered to their employees the ability to choose whichever union it was that they wanted, for the purposes of representing them in terms of industrial relations issues. I was contacted subsequent to that, and advised by the then management of that company, from my experience as an employee of the Chamber of Commerce and Industry, and they indicated to me that there was a number of unions which gave presentations to the employees including the National Union of Workers which is the union that had the constitutional coverage of those employees, I believe one other, and also the Automotive Food Metals Engineering Union.

PN12

The employees, I understand, at that point in time, voted to be represented in terms of their industrial relations issues by the AMWU, although, as is indicated in the statutory declaration, that union does not have the constitutional coverage of those employees. That is a practice that has continued up until and including the most recent negotiations, so you will see from the statutory declaration that that issue has been put squarely before you, and from the notice you will see that it doesn’t quite properly comply with the strict requirements of Section 170LK subsection 4, in terms of that notification. What my instructions are in respect to that is to put to you, though, that the employees have not been disadvantaged in any sense by that process. They have had access to representation. I am informed that the union was actually actively involved in the discussions that took place.

PN13

THE DEPUTY PRESIDENT: Let me understand you. It wasn’t a question I initially asked you, but nevertheless we will deal with it now. Let me understand you. What you are saying is that the AMWU doesn’t have constitutional coverage of these employees?

PN14

MR BORLASE: That is my belief, yes, your Honour.

PN15

THE DEPUTY PRESIDENT: The notice that was sent to these employees was that they could be represented by the AMWU?

PN16

MR BORLASE: Yes. That is correct. As I’ve indicated in 5.6 of the statutory declaration, that is brought to the Commission’s attention there, the box is marked, No, with an explanation for that following it.

PN17

THE DEPUTY PRESIDENT: Well, the notice doesn’t comply at all, does it?

PN18

MR BORLASE: No, your Honour, that’s certainly what I’ve indicated and as I have said my instructions are to offer to you the explanation behind that.

PN19

THE DEPUTY PRESIDENT: Well, how can I certify it?

PN20

MR BORLASE: That is one of the issues which is obviously for the Commission to determine, in respect of that. I cannot put a submission to you, your Honour, that I know of, that would allow you to ignore the requirements of the Act, other than - - -

PN21

THE DEPUTY PRESIDENT: Well, I would never ignore the requirements of the Act, Mr Borlase. I can’t.

PN22

MR BORLASE: No. I wasn’t suggesting that you would, your Honour. As I said, the instructions that I have is that the only explanation that we can provide for that is that the employees have not been disadvantaged in that process.

PN23

THE DEPUTY PRESIDENT: But that’s not the question. Yes, go on.

PN24

MR BORLASE: That is effectively, I think, as far as I can take that particular point. The next issue that arises, I think, is obviously in terms of the drafting of the agreement, in terms of clause- - -

PN25

THE DEPUTY PRESIDENT: Just before you – who does have constitutional coverage of these employees?

PN26

MR BORLASE: I believe it would be the National Union of Workers. The company is bound by way of transmission of business to the Rubber Cable Plastic Making Award, which is an award of this Commission which the NUW is a party to. I understand that they have never had any involvement, though, with the employees of the company. Your Honour, do you wish me to continue at the moment?

PN27

THE DEPUTY PRESIDENT: Just a moment. What type of workers are these?

PN28

MR BORLASE: They are rubber workers, your Honour. They manufacture and repair conveyer belting. You would be probably aware of the type of thing that is used to transport various raw materials in the mining industry from mine site to various refining areas. Conveyer belting used, for instance, the likes of
co operative bulk handling to convey - - -

PN29

THE DEPUTY PRESIDENT: What were the previous names of this company?

PN30

MR BORLASE: Beltreco was the previous name.

PN31

THE DEPUTY PRESIDENT: Was there one before that?

PN32

MR BORLASE: Not that I am aware of. Beltreco was a company that was established in Western Australia. A family owned company I believed and it was sold to Sandvik Materials Handling. Sandvik Materials Handling business was the building of the frameworks which went around those conveyer systems and the rollers and things of that nature. They were a metal trades company but these employees involved in this work are - - -

PN33

THE DEPUTY PRESIDENT: I have a vague recollection of another company’s name, it started with P, and I can’t remember what it is that seemed to do this sort of work. I was just wondering whether it was the same company.

PN34

MR BORLASE: No, it is not the same company. I am afraid I can’t assist you with what the name of that other company might be.

PN35

THE DEPUTY PRESIDENT: It doesn’t matter. Anyway, so levels 1, 2, 3 and 4 are generic type classifications. Whatever work is performed by people employed by Sandvik presumably and that type of work that they’re doing is work that is not work within the constitutional coverage of the AMWU. That’s what you are saying?

PN36

MR BORLASE: Yes, your Honour. That is correct, which also then obviously raises issues for your consideration in terms of clause one title, in terms of who the agreement purports to bind. Now we say that in terms - - -

PN37

THE DEPUTY PRESIDENT: Are there no employees that could be within the constitutional coverage of the AMWU?

PN38

MR BORLASE: Not that are covered by this agreement, no, your Honour.

PN39

THE DEPUTY PRESIDENT: None at all?

PN40

MR BORLASE: No.

PN41

THE DEPUTY PRESIDENT: Yes. Proceed, Mr Borlase.

PN42

MR BORLASE: Now, in terms of the issue that you have raised in terms of clause 1(3), there is a separate issue to that which is raised and the wording shall apply to and be binding on. I don’t think it was intended that 3 would follow in the sense that it does, because obviously pursuant to Section 170M(3), the AMWU couldn’t be bound by the application, or by the agreement, and that is a grammatical error there that it wasn’t intended to be binding on it. It was meant to be purely a recognition of the desire of the employees that are bound by the agreement and a party to the agreement to be represented in the future by the AMWU in their industrial relations interests, and the company was prepared to recognise right of entry provisions under the Workplace Relations Act for that particular union. In terms of the questions that you have raised - - -

PN43

THE DEPUTY PRESIDENT: The question I raised was in the context of exclusivity.

PN44

MR BORLASE: Yes. Your Honour, I have examined part 10(a) and I don’t believe there is any particular section in there, that that clause actually breaches. In fact, in terms of the spirit of that clause, we would say that it is in fact probably a true reflection of what part 10(a), Freedom of Association, is about, putting aside issues of registration of unions and acting in accordance with their rules and things of that nature. But, if you like it is the reflection of a democratic process which took place quite a number of years ago, and has continued to be recognised by the company, despite a position that they might have been able to take to the contrary, had they so desired. It is a clause there that has been put in at the behest of the employees who are a party to the agreement.

PN45

I understand that the vote for the agreement was 100 per cent in favour of the making of the agreement and employees were conscious and aware of that provision being in there. So from the prospective a democratic process has taken place and - - -

PN46

THE DEPUTY PRESIDENT: This binds existing and future employees, if you want to be so inclined.

PN47

MR BORLASE: Yes, your Honour. That is correct.

PN48

THE DEPUTY PRESIDENT: The effect of part 10(a) is that employees have freedom of association, that freedom of association including freedom of representation. What this appears to do is to have an exclusivity for anyone who is employed by Sandvik to be represented by the AMWU in all aspects of their employment.

PN49

MR BORLASE: Your Honour, I don’t believe that it goes quite that far. I would say that it is put no higher as a recognition that that union can represent their interests and despite any lawful limitations that the company may put up if it had so desired, that it would recognise that union as being able to represent those people, it doesn’t- - -

PN50

THE DEPUTY PRESIDENT: Well, that was the purpose of the question I asked.

PN51

MR BORLASE: Yes, and- - -

PN52

THE DEPUTY PRESIDENT: Can I just interrupt, Mr Borlase. That was the purpose of the question I asked. The purpose of the question I asked was whether this clause has the effect of an exclusivity of representation of any employee of Sandvik that is covered by this agreement. If it doesn’t, then that’s all you have got to say.

PN53

MR BORLASE: Yes. I don’t believe it does, your Honour.

PN54

THE DEPUTY PRESIDENT: Well it’s not a question of whether you believe it does or not. Does it, or doesn’t it?

PN55

MR BORLASE: Well, in my submission, no, it doesn’t.

PN56

THE DEPUTY PRESIDENT: Yes. And on what basis do you say that?

PN57

MR BORLASE: Well, on the basis that the Rubber Cable Plastic Making Award would still apply to employees of the company, and under that award there is dispute resolution procedures that are in place. The National Union of Workers is the appropriate union there, and from that perspective, employees would still be able to pursue issues and be represented by that union in accordance with the terms of that award.

PN58

THE DEPUTY PRESIDENT: Yes. Thank you. Is there anything else you wish to add?

PN59

MR BORLASE: The only other matter, I think, that you raised, was in relation to clause 5(3), and that deals with the issue of contractors, and your query there was whether or not it was capable of being within the requisite relationship of employer and employees. The leading case in respect of that matter, your Honour, is Wesfarmers Premier Coal Limited.

PN60

THE DEPUTY PRESIDENT: Oh, is it?

PN61

MR BORLASE: Well, certainly the decision which I think is most on point with respect to contractors is that particular matter, in my submission.

PN62

THE DEPUTY PRESIDENT: Life would be so easy if it were,
Mr Borlase, but, yes, proceed.

PN63

MR BORLASE: Now, what we say in respect to that particular matter is that the contractor clause which is contained in the Sandvik Material Handling Agreement is not of the same restrictive type that was dealt with in terms of Wesfarmers Premier Coal in that this clause just simply puts terms and conditions around, not so much whether or not the company can use it, but the opportunities that will be given to employees of the company. And we say from that perspective the company is not restricted in terms of being able to use contractors, and therefore the material - - -

PN64

THE DEPUTY PRESIDENT: Well, if it put terms and conditions about the use of contractors, then you’ve got a problem, Mr Borlase. If it’s, however, merely an indication, and just on the words, it appears to say, preferential use of permanent staff when considering overtime and shift arrangements, that’s quite another. But if you are now saying to me that it’s creating terms and conditions on the use of contractors, that’s quite another.

PN65

MR BORLASE: No. I don’t mean to give you that impression, your Honour, it’s primarily- - -

PN66

THE DEPUTY PRESIDENT: Well, that’s what I thought you said. I might have misheard you.

PN67

MR BORLASE: It may have been a poor choice of words, but it is primarily intended as a clause to give employees greater opportunity and security of employment and the skills required by the company to do the various tasks to meet the operational requirements of the company. That is the intention of the clause.

PN68

THE DEPUTY PRESIDENT: Yes. Thank you. Is there anything else?

PN69

MR BORLASE: No, your Honour, there isn’t.

PN70

THE DEPUTY PRESIDENT: I will deliberate on the fate of this agreement, and I will let you know in due course.

PN71

MR BORLASE: Yes, your Honour.

PN72

THE DEPUTY PRESIDENT: The Commission is adjourned.

<ADJOURNED INDEFINITELY [10.25AM]