AG2005/5208, Transcript of Proceedings [2005] AIRCTrans 2150 (17 October 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13040-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2005/5208

APPLICATION BY LINK ENGINEERING PTY LTD & TONKIN, PETER
s.170LK - Agreement with employees (Division 2)
(AG2005/5208)

ADELAIDE

4.15PM, TUESDAY, 04 OCTOBER 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN ADELAIDE

PN1

MR A MARKIEWICZ: I appear on behalf of Link Engineering Pty Ltd.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Markiewicz and I understand I have an employee representative and the employer representative on the telephone to Whyalla. Is that the case? Do I have a Mr Marino?

PN3

Mr Marino, can you hear me? Mr Marino, can you hear me? Mr Tonkin, can you hear me?

PN4

MR TONKIN: Yes I can hear you.

PN5

THE SENIOR DEPUTY PRESIDENT: And Mr Marino, can you hear me too?

PN6

MR MARINO: Yes.

PN7

THE SENIOR DEPUTY PRESIDENT: All right. Mr Marino and Mr Tonkin, I understand Mr Marino is the employee representative.

PN8

MR TONKIN: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: And that Mr , sorry I understand Mr Marino is the employer representative and Mr Tonkin is the employee representative?

PN10

MR TONKIN: Correct.

PN11

THE SENIOR DEPUTY PRESIDENT: Now if either of you gentlemen cannot hear any of these proceedings at any stage please interrupt us and we will repeat the words that have been spoken. Sorry, can you say that again?

PN12

MR MARINO: It is very hard to hear your voice, sometimes going up and down.

PN13

THE SENIOR DEPUTY PRESIDENT: All right. Well, please bear with us and interrupt at any point if you cannot hear these proceedings. All right? Thank you. Now, Mr Markiewicz, I have read the agreement and I have read the statutory declarations. I seek some further information about the process that was followed to reach this agreement. First of all can you confirm to me that Link Engineering is in fact a body corporate under the Act. I ask that question. There is no ACN number provided in the statutory declaration.

PN14

MR MARINO: One moment. ABN number 31242945877.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Marino. Now, Mr Markiewicz, are you able to provide me with a copy of the employer's notice of intention to make this agreement?

PN16

MR MARINO: Which copy sorry?

PN17

MR MARKIEWICZ: Yes sir, I can indicate that that was enclosed with the statutory declaration in the agreement.

PN18

MR TONKIN: We can't hear.

PN19

MR MARKIEWICZ: Sorry. The notice was attached to the statutory declaration and together with the agreements just after the statutory declaration of both Mr Marino and - - -

PN20

MR MARINO: ….. this, I have no idea.

PN21

MR TONKIN: Statutory declaration.

PN22

THE SENIOR DEPUTY PRESIDENT: Is this the document dated 9 June 2005?

PN23

MR MARKIEWICZ: Correct.

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Markiewicz, how do you say to me that that notice meets the requirements of section 170LK(4)?

PN25

MR MARKIEWICZ: Sir, in terms of that it is supplemented by the statutory declaration by both Mr Tonkin and Mr Marino that they know for a fact ….. relate back to the employees in respect to union membership.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Marino and Mr Tonkin?

PN27

MR TONKIN: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: The agreement that you have reached was reached under a section of the Act which reflects the only section that you can use to reach a collective agreement between an employer and employees without the necessity for trade union involvement. The Act sets out a series of steps that need to be followed and they are set out in, or those steps are set out in very clear and somewhat mandatory terms.

PN29

I understand from Mr Markiewicz that what you are in effect saying to me is that the notice of intention to make the agreement of 9 June did not include the required comments or invitation which is set out in section 170LK(4) to the extent that if a person is a member of a union that is entitled to represent them they may ask that union to meet and confer with the employer about the agreement and I further understand from Mr Markiewicz that you covered that issue in discussions with employees.

PN30

MR MARINO: We've done the meeting with all the men and discussed that point.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Markiewicz, the problem that I have with that approach is that it appears clear to me that the parties set out with the very best of intentions but have simply not complied with the agreement making - - -

PN32

MR TONKIN: We can't hear you properly.

PN33

THE SENIOR DEPUTY PRESIDENT: All right. It appears, Mr Markiewicz, that the parties, that is the employer and the employees set out with the very best of intentions to make this agreement but have simply not complied with the provisions of section 170LK(4). That would mean that I would not be able to certify the agreement today but a little later in this hearing I would outline to you an approach that you might want to talk with the employer about that might expedite certification of the same agreement in identical terms in the very near future. Now, Mr Markiewicz, do you want to put to me that the circumstances of this matter in fact meet the requirements of section 170LK or are you in agreement with my concern in that regard?

PN34

MR MARKIEWICZ: Sir, I concur with your summation with respect to 170LK(4). Certainly it was the intent of the particular parties to abide by it. They were aware of a pro forma form but unfortunately it wasn't utilised for these particular proceedings.

PN35

THE SENIOR DEPUTY PRESIDENT: All right. Now, the second issue that I was going to raise went to the period of time between the agreement being provided to employees and the actual vote. In the circumstances I won't raise that issue.

PN36

MR MARKIEWICZ: Sir.

PN37

THE SENIOR DEPUTY PRESIDENT: What I am going to do now, Mr Marino and Mr Tonkin, is to go through a number of clauses in the agreement and seek Mr Markiewicz's clarification of those particular provisions. It may be that Mr Markiewicz will need to enlist either of your assistance in that regard but do you, both of you in Whyalla have a copy of the agreement with you?

PN38

MR MARINO: We do.

PN39

THE SENIOR DEPUTY PRESIDENT: All right. Mr Markiewicz, can I take you to clause 4 first of all. This is the special conditions clause and should I understand that clause 4(b) establishes that the rates in this agreement will apply in relation to any work that might be undertaken at the BHAS Smelter at Port Pirie. Any work undertaken at the ….. site at Whyalla, the Roxby Downs area and the NRG Flinders Power Partnership at Port Augusta irrespective of any arrangements that might apply particularly to those sites or is it in addition to arrangements that might apply on those sites?

PN40

MR MARKIEWICZ: Sir, the rates take into account those particular sites and it is in lieu of any rates applicable in those sites. Perhaps to assist the Commission I do have a copy of a facsimile from the company which actually gives a schedule of the rates for the employees in Whyalla and in respect to looking at that, if we look at the areas in terms of tradesmen, they have a rate of $21.26 per hour which applies to those particular employees. Perhaps if I could give that to the Commission.

PN41

MR MARINO: Hello?

PN42

MR MARKIEWICZ: We're still here. Just to give an indication, sir, the particular rate if we look at it which relates to a number of particular tradesmen, of the $21.26 per hour, that translates to $807.88 per week. The award rate in terms of the C10 under the Metal Engineering & Associated Industries Award is $15.21 per hour or $578.20 per week. So well in excess of the award rate.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN44

MR MARKIEWICZ: If the Commission pleases.

PN45

THE SENIOR DEPUTY PRESIDENT: I will mark that document as L1, Mr Markiewicz.

EXHIBIT #L1

PN46

MR MARKIEWICZ: Thank you, sir.

PN47

THE SENIOR DEPUTY PRESIDENT: Now, Mr Markiewicz, can I then take you to clause 4(d).

PN48

MR MARKIEWICZ: Yes sir.

PN49

THE SENIOR DEPUTY PRESIDENT: What is meant by the phrase, but in overtime will be dropped to permanent rate?

PN50

MR MARKIEWICZ: Perhaps, sir, if we refer to exhibit 1. The second page has the rates for weekly employment referred to as permanent and the third page relates to the rates for casual employees. In respect of that, sir, what occurs is that in respect to casual employees the overtime is based on the - if we look at the tradesmen, the $21.26 rate but we see sir, in terms of the, if we look at the casual fitter, the casual rate is $26.57 per hour. The award rate for a casual C10 is $19.03. That in actual fact is an increase in terms over the award rate of 39.62 per cent over and above the award rate.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 8(c) says that the wage increase as specified in sub clause (a) shall not be absorbed into any over award payments. Now, should I understand then that there are over award payments paid in addition to the rates that have been provided to me in this employment schedule?

PN52

MR MARKIEWICZ: Sir, my understanding is that they, the rates shown in the schedule incorporate over award payments and include the particular rates.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes thank you. The next question I had is simply a matter of clarification. Should I understand that the words by the Commission and Commissioner under clause 10 are an error?

PN54

MR MARKIEWICZ: Yes sir.

PN55

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Now, Mr Marino and Mr Tonkin?

PN56

MR TONKIN: Yes.

PN57

THE SENIOR DEPUTY PRESIDENT: On the basis of the information provided to me by Mr Markiewicz I am satisfied that the agreement is of a type that I can certify and that it meets the requirements necessary for certification which are set out in sections 170LT and 170LU of the Act but as I said earlier on I am not satisfied that the necessary process to reach the agreement was carried out in accordance with section 170LK. Now that is very likely simply the result of an oversight because I would be the first to say that the Act under which you are seeking certification of this agreement is probably not worded as simply as it might be but you will need to repeat the agreement making process.

PN58

I am sure that Mr Markiewicz can help advise you in that regard and I suggest that it might be appropriate that he perhaps provides to you that section 170LK and then goes through in a step by step process with you what you will need to do. In effect and I will summarise it very briefly now. You will need to provide a new notice of intention to make the agreement. At the same time as that you will need to provide the agreement in its current form. You will then need to ensure that that notice of intention contains the invitation so that a person who is a member of a union able to represent them is clearly told in the written notice that they can seek the assistance of that union in meeting and conferring with the employer.

PN59

At some stage prior to the vote, which will need to be repeated, the employer will need to make sure that the terms of the agreement are explained to employees. It could be as simple as having a forum where employees can raise questions about the agreement. At any stage prior to the date upon which the agreement is made, if there is a request from a union to represent any employees then, Mr Marino, you will need to meet and confer with that union. You don't necessarily have to agree with the union, nor indeed do you necessarily have to change the agreement, but you do have to meet and confer.

PN60

At some stage at least 14 days after that notice of intention and agreement is provided to the employees then the employees will need to re-ballot the agreement. Now if you go through that process and if through Mr Markiewicz you provide to me another copy of the agreement which was voted upon by the employees, a single copy of that notice of intention that you issue, that is I don't need a copy for every employee I just need one exemplary copy.

PN61

New statutory declarations which detail the process that you followed and I am satisfied that that process was consistent with section 170LK then I would propose to certify this agreement without the need for a further hearing from the date upon which I receive that material. Now if I was in any doubt about that then I would have to reconvene another hearing. Now, do you have any questions about that process, Mr Marino?

PN62

MR MARINO: No, we - - -

PN63

THE SENIOR DEPUTY PRESIDENT: All right. That is fine. As I said, there is absolutely no criticism of you because the mistake you have made has been made by many other people beforehand. I am just anxious to ensure that you understand what needs to be done to get the agreement certified without a further hiccough. Can I suggest that if you are in any doubt at all you need to have a talk with Mr Markiewicz who can provide you with a copy of the relevant section of the Act. Now, Mr Tonkin, are you clear about the process that needs to be followed?

PN64

MR TONKIN: Yes.

PN65

THE SENIOR DEPUTY PRESIDENT: All right. Mr Markiewicz, you're happy with that approach?

PN66

MR MARKIEWICZ: Yes sir.

PN67

THE SENIOR DEPUTY PRESIDENT: All right. What I will do then is hold this file where I have refused to certify this version of the agreement until I receive the new agreement and statutory declarations and notice of intention. Please don't provide that to me within the next 14 days because then we know we have got a different problem and I would hope to be able to issue a certificate with effect from the date upon which I receive that additional material. On that basis I would wish you well in terms of the operation of your agreement and hope that it benefits both the employer and the employees.

PN68

MR TONKIN: Thank you.

PN69

THE SENIOR DEPUTY PRESIDENT: And I will adjourn the matter accordingly. Now, perhaps before I do adjourn these proceedings, Mr Marino and Mr Tonkin you may wish to stay on the line for a moment because Mr Markiewicz may talk to you after I have left the courtroom.

PN70

MR TONKIN: Thank you.

PN71

THE SENIOR DEPUTY PRESIDENT: All right? I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [4.36PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L1 PN45