AG2004/9875, Transcript of Proceedings [2005] AIRCTrans 271 (7 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10234

DEPUTY PRESIDENT IVES

AG2004/9875

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA-VICTORIAN BRANCH AND ANOTHER
(AG2004/9875)
Textile Industry Award 2000

MELBOURNE

2.21PM, THURSDAY, 27 JANUARY 2005

PN1
PN2

MS V WILES: I appear on behalf of TCFUA.

PN3

MS J HAYMAN: I appear on behalf of Gale Pacific.

PN4

THE DEPUTY PRESIDENT: Thank you. Yes, Ms Wiles.

PN5

MS WILES: Your Honour, this is an application made under Division 2, part 6 of the act and the parties do seek certification under section 170LJ of the act. The agreement does apply to part of a signal business, being the manufacture of technical textiles by Gale Pacific Ltd in Braeside, Victoria. You have on the Commissions file the statutory declarations of Ms Michelle O'Neil, who is the state secretary of the TCFUA and Peter McDonald, who is the chief operating officer of Gale Pacific.

PN6

THE DEPUTY PRESIDENT: Yes, I just note, Ms Wiles, that on the union's statutory declaration in 5.2, there is no answer given to the question of:

PN7

State whether each organisation is entitled to represent the industrial interests of its member in relation to work which is the subject of the agreement.

PN8

Presumably, that is just simply an oversight on the part of the TCFUA, is that correct?

PN9

MS WILES: It is, your Honour. The TCFUA, in fact the majority of employees, are members of the TCFUA at the site. That is right, yes.

PN10

THE DEPUTY PRESIDENT: Yes. Well, subject to anything else that might come up during the course of these proceedings, then I will accept, if you provide me with another page for the statutory declaration - sorry, another statutory declaration which corrects that defect. If you can do that for me, Ms Wiles.

PN11

MS WILES: Yes, your Honour.

PN12

THE DEPUTY PRESIDENT: As I said, it was 5.2 on the statutory declaration. I note further, that the employer copy is the same. It doesn't answer that question, so if the employer can do likewise.

PN13

MS WILES: Your Honour, the agreement was approved by the majority of the employees employed at the time, whose employment will be subject to the agreement. There are extensive discussions held in relation to the agreement and including the employee entitlements, deeds and attachment deed to the agreement. In terms of the vote, the vote took place on 21 and 22 December over the day, afternoon and night shifts and it was unanimously voted in favour of the agreement. You will note, your Honour, that there is a very high percentage of non English speaking background employees employed at Gale Pacific, and the majority of those are Vietnamese speaking. The company did provide copies of the proposed agreement and it was translated into Vietnamese and offers were made available of interpreters if that was requested.

PN14

In terms of the no disadvantage test, the relevant award is the Textile Industry Award 2000 and in our submission, the agreement does provide a range of enhancements over that award. In particular, I can draw your attention to clause 11 which provides for enhanced wage rates, clause 18 which provides for a separate protection of employee entitlements deed, clause 20 unpaid leave- - -

PN15

THE DEPUTY PRESIDENT: Sorry, what did you just say? Clause - - -

PN16

MS WILES: 18, protection of employee entitlements.

PN17

THE DEPUTY PRESIDENT: Yes. Does that actually refer to anything? I note that there is a schedule D that was put in with this application and it didn't seem to me - I am going through the agreement - that schedule D was actually referred to anywhere. Schedule D appears to be the deed to which you refer, but it is not referred to anywhere in the agreement. It is just a schedule that has been sent to the Commission and it is headed Gale Pacific Employees and TCFUA Certified Agreement 2004 Schedule D. If you then open it up, it is actually employee entitlements deed. It relates to the protection of employee entitlements, but it is not referred to. Schedule D itself is not referred to anywhere in the agreement itself, that I could find.

PN18

MS WILES: Your Honour, I think that 18.4, there is a reference.

PN19

THE DEPUTY PRESIDENT: There is, yes you are right.

PN20

MS WILES: It is schedule D.

PN21

THE DEPUTY PRESIDENT: Yes. I am sorry, you are right. It just goes to show I didn't read every word of it, or if I did I was otherwise engaged at the time mentally.

PN22

MS WILES: Yes. So in terms of the other enhancements in our submissions, those include clause 20 unpaid leave, clause 21 sick leave, clause 24 long service leave, part four training, clause 28 heat and cold policy, clause 29 protective clothing and clause 34 which provides for enhanced redundancy entitlements. In our submission, certification would not result in a reduction of the overall terms and conditions of employment of employees whose employment will be subject to the agreement. There is a dispute settlement procedure at clause 7. The period of the agreement is from the date of certification to 1 March 2007, and that is found at clause 6.1 of the agreement. The union submits that the agreement does meet all statutory tests under the act and supported by the statutory declarations and we request that the Commission certify the agreement in its current terms. If the Commission pleases.

PN23

THE DEPUTY PRESIDENT: Thank you, Ms Wiles. Just before you sit down,
Ms Wiles. I note in clause 9, paragraph 9.2 - the agreement imports the terms of the textile industry award 1994 as it stood at 30 June, it says at 30 June 18, I assume it means 30 June 1990. It has got 30 June 18, and then it has got 1998, but I assume what you mean is you are incorporating the terms as the award stood as of 30 June 1998.

PN24

MS WILES: That is correct, your Honour, yes.

PN25

THE DEPUTY PRESIDENT: I further note that that clause 9.2 says:

except for clause 45

Which was in fact a preference clause in the 1998 version of the award. So that, obviously, takes care of that issue because the clause 45 would constitute a problem if it was left in. But I don't know whether this might have just slipped through the keepers, so to speak. That award incorporates a supported wage and at the time, at 1998, the supported wage, I think, was $50. It may have even been something less than $50. I don't know whether it was the intention of the parties to lock in a supported wage which is some $11, I think, less than it currently is. It may not even be a relevant circumstance, as far as the employer is concerned, but the current supported wage is $61.

PN26

MS WILES: Your Honour, I can say that in terms of, well, it certainly isn't an issue applicable at the site at the current moment, but I take on board your point and I mean, from the unions view no, it wouldn't have been the intention to provide less than what the current rate is. That may be picked up, I think. I think there is another clause in the wages section which talk about, if my memory serves me, about the agreement not providing provisions less than the award.

PN27

THE DEPUTY PRESIDENT: Yes. It may be, in the circumstances, depending on
Ms Haymans attitude to that, it could be an undertaking that notwithstanding the provisions of 9.2, in the event that the supported wage became relevant to the organisation, it would not fall below the supported wage as contained in the current textile industry award. Is that something, Ms Hayman, you would have a problem with?

PN28

MS HAYMAN: No.

PN29

THE DEPUTY PRESIDENT: No. Current wage is $61, so perhaps if you could give me an undertaking to that effect, then that takes care of that particular issue. All right, is that it?

PN30

MS WILES: Is that all?

PN31

THE DEPUTY PRESIDENT: Yes. That is all the questions I have got. Ms Hayman?

PN32

MS HAYMAN: No, we agree to the Gale Pacific agreement.

PN33

THE DEPUTY PRESIDENT: You agree to what? You agree with Ms Wiles?

PN34

MS HAYMAN: Yes.

PN35

THE DEPUTY PRESIDENT: Okay. And what about the undertaking, Ms Hayman? Do you undertake that notwithstanding the provision of 9.2 of the agreement that, in the event that the supported wage becomes relevant to the employer during the currency of this agreement, that that supported wage will be that allowed for by the current version of the textile industry award 1994?

PN36

MS HAYMAN: Yes.

PN37

THE DEPUTY PRESIDENT: You do?

PN38

MS HAYMAN: Yes.

PN39

THE DEPUTY PRESIDENT: Thank you. I assume you support that undertaking from the unions point of view?

PN40

MS WILES: Yes, your Honour.

PN41

THE DEPUTY PRESIDENT: Yes. Thank you. Yes, I am satisfied that the requirements of the act in this matter are met. And the Gale Pacific Employees and TCFUA Certified Agreement 2004 can be certified and will be certified with effect from today's date. It will reach its nominal expiry date on 1 March 2007. I should say, that certification is contingent upon me receiving from both the employer and the union, a statutory declaration which takes care of the omission which I pointed out to both the parties. So immediately I receive statutory declarations to do that, I will certify the agreement and it will be with effect from today's date. So when do you think you would be able to get those to me? Within 24 hours?

PN42

MS WILES: Hopefully, yes.

PN43

THE DEPUTY PRESIDENT: Thank you. Matter is adjourned.

<ADJOURNED INDEFINITELY [2:33PM]