AG2005/5160, Transcript of Proceedings [2005] AIRCTrans 1886 (12 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12651-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2005/5160

APPLICATION BY BAE SYSTEMS AUSTRALIA LIMITED
s.170LK - Agreement with employees (Division 2)
(AG2005/5160)

ADELAIDE

11.29AM, TUESDAY, 30 AUGUST 2005

PN1

MR P YOUNG: I appear on behalf of BAE Systems Australia Limited.

PN2

MR B CHINNICK: I appear on behalf of the employees.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Chinnick, I note that you've just handed my associate a copy of a statutory declaration.

PN4

MR CHINNICK: Yes, I have.

PN5

THE DEPUTY PRESIDENT: I haven't had a chance to have a look at that as yet but I'll do so shortly. Otherwise I can advise the parties that I've read the application and I've read the agreement and the statutory declarations. Mr Young, what I'll do first of all is deal with the application made for designation of an award pursuant to section 170XF.

PN6

The application suggests that the Metal Engineering and Associated Industries Award of 1998 would be the most appropriate award. I'm not sure that's the case, Mr Young. I wonder whether the more appropriate award might be the National Electrical Electronic and Communication Contracting Industry Award. That award has common rule application in Victoria. It applies to the provision of electrical services by electrical, electronic and communications contractors. In that regard it defines electrical services in a fairly comprehensive fashion.

PN7

It does not apply to the manufacturing section of the business of employers who are manufacturing, or vendors of plant or equipment in high or low tension power stations and or substations for the generation and/or transmission of electric power. I don't know whether that exclusion applies to BAE but it would appear to me on the face of it that the Electrical Contracting Industry Award might be the more appropriate award and that if so, an XF determination would not be necessary by virtue of the common rule application of that award. It probably makes little difference for the purpose of the actual no disadvantage test but I guess it's appropriate that we get it right.

PN8

MR YOUNG: That's an award I'm not familiar with, I have to say, Senior Deputy President. We nominated the Metal Engineering and Associated Industries Award simply because that was the award which underlay the agreement which this agreement replaces so it was just a continuation of what appears to have been in place last time around 4 years ago. I think you must be right, that if the award that you have referred to applies as a common rule award, then that would, by default, be the appropriate award for the purpose of the no disadvantage test.

PN9

THE SENIOR DEPUTY PRESIDENT: I'm a little loath to determine that award as the award for the purposes of section 170XF without giving you the opportunity to look at it. What I propose to do is to say that I will adopt the National Electrical Electronic Communication Contracting Industry Award for the purposes of section 170XF a week from today, unless I hear something to the contrary from the parties.

PN10

MR YOUNG: Yes, I understand.

PN11

THE SENIOR DEPUTY PRESIDENT: Are you happy with that approach?

PN12

MR YOUNG: Yes. Obviously we have not had an opportunity to compare the agreement to the award for the purposes of the no disadvantage test as the Commission had - - -

PN13

THE SENIOR DEPUTY PRESIDENT: I had a look at the award in that regard. I don't think it makes a fundamental difference save and except that there are some questions that I have of you about how I compare the classifications and it might be difficult for you to answer those questions - - -

PN14

MR YOUNG: I think it will, not being familiar with the award.

PN15

THE SENIOR DEPUTY PRESIDENT: - - - in the absence of being able to look at the definitions.

PN16

MR YOUNG: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: For your ease of access, can I suggest that you note that the award has an AW number. It might help in terms of your accessing that particular award. It is AW791396CRV, CRV relating to the common rule Victoria nature of the award.

PN18

MR YOUNG: Thank you. I will have a look at that award. In anticipation of that, does the Commission have any particular issues that will need to be addressed?

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, I do. If you'll just bear with me for one moment, I just want to have a quick look at the statutory declaration that Mr Chinnick has just handed up.

PN20

MR YOUNG: I can indicate that it's almost identical to the one that was filed on behalf of the employer.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Young, do you have a copy of the employer's notice of intention that you can provide to me in this matter?

PN22

MR YOUNG: I'm afraid I don't have a copy of that with me, sir.

PN23

THE SENIOR DEPUTY PRESIDENT: Could you provide one to me over the next few days?

PN24

MR YOUNG: Yes, I can.

PN25

THE SENIOR DEPUTY PRESIDENT: We'll put that on our list of things to be dealt with within the next week. Before moving on to the agreement itself and the question you've asked of me, Mr Young, can I just clarify with Mr Chinnick the basis upon which this statutory declaration is made. Mr Chinnick, have you made this declaration as an employee representative or simply as one of the employees covered by this agreement?

PN26

MR CHINNICK: As an employee representative, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: Were you elected as such by the employees?

PN28

MR CHINNICK: Yes, sir.

PN29

THE SENIOR DEPUTY PRESIDENT: In the statutory declaration you assert at paragraph 5.7 that no request was made from an organisation entitled to represent employees to be covered by the agreement to meet and confer with the employer. As an employee representative, should I take it that you're not aware of any other employee who sought to have the union involved in the process?

PN30

MR CHINNICK: As far as I'm aware the only single employee that is within the union did not request that.

PN31

THE SENIOR DEPUTY PRESIDENT: I see, thank you. If I can then move to the agreement itself, Mr Chinnick, the questions that I'm going to ask Mr Young point to two broad categories. There are questions of clarification where, whilst I'm not inviting the parties to change the agreement in any way, I am seeking clarification as to how I should read a particular provision. Then there are questions that go to the specific criteria to which I must have regard in terms of the certification process. I'll address my questions to Mr Young. Unless you tell me otherwise I'll assume you're in agreement with his responses.

PN32

Mr Young, can I take you to clause 2.2 which is the dispute resolution procedure, and in particular to stage 4. In that stage the parties envisage that an unresolved matter might be referred to the Commission. Do the parties have a view about what role the Commission should play in the event that such a matter is referred to it?

PN33

MR YOUNG: I would not read that as giving the Commission specific power to arbitrate. The Commission would be asked to attempt to assist the parties to resolve a dispute but it doesn't seem to give the Commission any power to impose a resolution.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.3 deals with redundancy. The last paragraph of that clause - I should perhaps stop here. Mr Chinnick, you don't have a copy of the agreement?

PN35

MR CHINNICK: No, not with me.

PN36

THE SENIOR DEPUTY PRESIDENT: I can loan you one from my file. We might just go back to that earlier clause for a moment. The clause about which I was seeking clarification was 2.2 and in particular to stage 4. Mr Young's advice to me in that regard is that the employer's position was that that capacity to refer a matter to the Commission does not bestow on the Commission necessarily an arbitral role. Is that a correct paraphrasing of your words?

PN37

MR YOUNG: That's correct.

PN38

THE SENIOR DEPUTY PRESIDENT: Can I take it you're in agreement with that?

PN39

MR CHINNICK: Yes, we're in agreement with that one.

PN40

THE SENIOR DEPUTY PRESIDENT: If I can then go to 3.3 and the last paragraph of 3.3 which references company policy. Should I understand that that company policy exists in a documented form, Mr Young, that it is readily available to employees and that it may be changed over the life of this agreement?

PN41

MR YOUNG: Correct on all counts.

PN42

THE SENIOR DEPUTY PRESIDENT: Clause 4.2 deals with the hourly rates.

PN43

MR YOUNG: Just in relation to that, Senior Deputy President - - -

PN44

THE SENIOR DEPUTY PRESIDENT: This is in relation to 3.3?

PN45

MR YOUNG: Back onto 3.3, I would say that, if the policy was changed in a manner which provided for a lower redundancy payment, obviously the agreement and the specific payment provided for in the agreement would continue to apply. It's the procedure of consultation and so on which may change in detail.

PN46

THE SENIOR DEPUTY PRESIDENT: Clause 4.2 deals with the hourly wage rates. This is the issue that you may wish to take away and ponder upon over the next few days. The difficulty that I have here is simply one of how I describe those particular classifications in the context of the classification structure of, if you agree, the Electrical Contracting Industry Award. Alternatively, it becomes a question of, if you still say that that Metal Industry Award is the appropriate one, how I link those classifications with the classification structure in the Metals Award.

PN47

MR YOUNG: How do you relate classifications as included in this agreement to classifications in the award?

PN48

THE SENIOR DEPUTY PRESIDENT: That's correct, simply for the purpose of the no disadvantage test. Clause 4.5.1 - - -

PN49

MR YOUNG: Sorry, Senior Deputy President, just in relation to 4.2 - - -

PN50

THE SENIOR DEPUTY PRESIDENT: We'll go back to 4.2 for a moment, yes.

PN51

MR YOUNG: - - - would it assist you if we came back with an indication in relation to each of these classifications that the relevant classification for the purpose of the comparison in the award is how they are described in the award.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, that's all I'm after. Thank you. Simply an ability to say, for argument's sake, that the computer assistant should be, under the terms of that contracting award, if that's the award that's agreed, a grade 2 employee.

PN53

MR YOUNG: Thank you.

PN54

THE SENIOR DEPUTY PRESIDENT: 4.5.1 in the very last paragraph which actually occurs on page 10 of the document, talks about the employer entering into negotiations with the employees with a view to reviewing the living away from home allowance. Should I understand that that, in effect, represents a statement of the circumstances under which there would be a review of that living away from home allowance rate, which would not be part of any no extra claims commitment, that is, there's not a commitment to necessarily agree a rate, but rather to review the rates?

PN55

MR YOUNG: I think that's right. It is a commitment to review the rate. It's not a clause that says that the rate will automatically be escalated to match rates across the Esso Bass Strait oil platforms. It doesn't necessarily require that there will be agreement but it does require a review in the context of changing circumstances.

PN56

THE SENIOR DEPUTY PRESIDENT: How should I read that particular provision in the context of clause 1.8?

PN57

MR YOUNG: I think that it's not inconsistent with clause 1.8 because the review is specifically provided for in the agreement and so if circumstances arise, namely that there has been an increase in the living away from home allowance across the Esso Bass Strait oil platforms, then a request by employees for a review of the rate is not an extra claim. It's something that has been provided for upfront in the agreement.

PN58

THE SENIOR DEPUTY PRESIDENT: Clause 6.1 on page 17 of the document references company policy relative to annual leave. Once again, if I ask you to look at that in the context of clause 7.2 on page 19 where the employer's separation policy is referenced and clause 8.2 on page 21 where the drug and alcohol policy is referenced, are each of those policies available in a documented form to all employees and may they be changed over the life of the agreement?

PN59

MR YOUNG: Yes, in all cases.

PN60

THE SENIOR DEPUTY PRESIDENT: Mr Chinnick, are you in agreement of all of Mr Young's responses to my questions?

PN61

MR CHINNICK: Yes, I am, sir.

PN62

THE SENIOR DEPUTY PRESIDENT: Mr Young, I can advise you that I am satisfied that the agreement deals with matters that pertain to the relationship of the employer and its employees. I am not able to reach a definitive conclusion as yet in relation to the extent to which the agreement was reached through a process consistent with section 170LK until such time as I can look at the notice of intention to make the agreement.

PN63

I am not able to reach definitive conclusions about the application of section 170LT in particular in this regard until I can consider your responses relative to the no disadvantage test. If you can provide me with that classification information and the preferred position in relation to the section 170XF application, then I would hope to be able to address that material within the next week.

PN64

Could I ask that, perhaps you provide me with anything, you confer with the employee representative in that regard so that whatever I'm provided with is signed by both groups.

PN65

MR YOUNG: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: Are you happy with that approach?

PN67

MR YOUNG: Yes, I am happy, sir.

PN68

THE SENIOR DEPUTY PRESIDENT: Mr Chinnick, are you happy with that approach?

PN69

MR CHINNICK: Yes.

PN70

THE COMMISSIONER: If I can certify the agreement and issue a section 170XF certificate or determination on that basis, then I shall do so with effect from the date on which I receive that material. If there was a problem with that such that it precluded certification, then I can assure you that I won't refuse to certify the agreement but I'll ask you to come back in the form of another hearing.

PN71

Mr Chinnick, I don't know whether you're based in the Latrobe Valley - - -

PN72

MR CHINNICK: I am.

PN73

THE SENIOR DEPUTY PRESIDENT: - - - but if you are I assure you I won't require you to come to Adelaide. We do have video links that can assist in that regard, but I'm optimistic that won't be necessary. I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [11.48AM]