AG2004/8272, Transcript of Proceedings [2005] AIRCTrans 326 (10 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10277

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/8272

s.170MD(2) - variation of certified agreement by employer or union

APPLICATION BY ADELAIDE BRIGHTON CEMENT LTD AND ANOTHER
(AG2004/8272)
Adelaide Brighton Cement Klein Point Certified Agreement 2003

ADELAIDE

1.31PM, MONDAY, 31 JANUARY 2005

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

PN1

MR R MORITZ: I appear for EMA Consulting, on behalf of Adelaide Brighton Cement Ltd, together with MS M MACKRELL, Human Resource Officer, and MR G SAWYER, Mine Manager for that company.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moritz. Now, I understand we have Mr Clarke on the telephone, is that correct Mr Clarke?

PN3

MR G CLARKE: Yes, sir.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, can you hear me satisfactorily?

PN5

MR CLARKE: I am having trouble with hearing anything at the moment, sir. Everybody seems to be very distant.

PN6

THE SENIOR DEPUTY PRESIDENT: Okay. We will try and speak up, Mr Clarke. If at any point in these proceedings you cannot hear, then I am reliant upon you to interrupt the proceedings to simply advise that you can't hear us.

PN7

MR CLARKE: Yes, sir.

PN8

THE SENIOR DEPUTY PRESIDENT: Now, Mr Clarke you are an employee representative, is that the case?

PN9

MR CLARKE: That's right, sir.

PN10

THE SENIOR DEPUTY PRESIDENT: Can you tell me how you came to be the employee representative? Were you elected as such?

PN11

MR CLARKE: Yes, in the long term, mostly pushed into it.

PN12

THE SENIOR DEPUTY PRESIDENT: And to whom do you credit the pushing function?

PN13

MR CLARKE: The rest of the members, employees.

PN14

THE SENIOR DEPUTY PRESIDENT: I see. Mr Clarke do you have a copy of the proposed variation to the agreement, is that the case?

PN15

MR CLARKE: I do.

PN16

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Now Mr Moritz, I have before me two applications. This one has been called on, it is an application made pursuant to section 170MD of the Act. I also have an earlier application made pursuant to section 170LK. If I understand your position correctly from the material in the Commission's file, the intention is to vary the earlier agreement and hence eliminate the need for the new agreement, that is the October 2004 application. Is that correct?

PN17

MR MORITZ: Yes, that is correct, sir.

PN18

THE SENIOR DEPUTY PRESIDENT: Now, I have read the statutory declarations and I have read the proposed revised agreement. Mr Moritz, the initial issue that arises goes to the process that was followed here. Should I understand from the statutory declarations that some form of notice of the intention to revise the agreement was provided to employees?

PN19

MR MORITZ: It was, sir. Following our appearance before you on 29 October and taking into account the issues that were raised at that time, not the least being that the application for certification of a new agreement was submitted, probably in error, and the need to address some other issues which arose out of the Electrolux case, the provisions which are detailed in our application to vary were outlined to employees initially on 16 and 19 November to the respective shifts, and subsequently under cover of an advising letter which sought to explain the nature of the variations that were sought, and also provided those variations in the form of an amended agreement document, which was submitted to the employees for their consideration. Subsequent to that, the circulation of those details, a ballot seeking the acceptance of the proposed variations was undertaken by the employees concerned on 8 December.

PN20

THE SENIOR DEPUTY PRESIDENT: I see. And do you have a copy of that notice that was provided to employees?

PN21

MR MORITZ: I do, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN23

MR MORITZ: It is in draft form, sir, but I am assured by the people appearing with me that that was the format and the content that was issued to employees. Attached to that was an outline, as I have mentioned, an outline of the amendments that were being sought at that time. Those amendments were addressed in some detail when we last appeared before you, sir.

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, I haven't gone to sleep on you, I am just reading a letter provided to me by Mr Moritz. Mr Moritz, before we take this letter any further, section 170MD(3) says that I must:

PN25

By order, approve the variation and must not approve the variation unless I am satisfied that a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the variation.

PN26

I have no doubt from the statutory declarations that you and Mr Clarke will confirm that position to me. However, the second part of section 170MD(3) is the part that is causing me some degree of angst, and that says the I must be satisfied that:

PN27

The Commission would be required to certify the agreement as varied if it were a new agreement whose certification was applied for under this part .

PN28

Now, I must say I read that on the basis that I need to treat this application as if it were a new section 170LK application in terms of the process that was followed. And if that is the case, then without looking at the date upon which employees receive this letter, and considering the 14 day requirements, the aspect of the letter that is causing me some degree of difficulty is the extent to which it complies with section 170LK(4). Section 170LK(4) establishes a requirement that a part of the employer's notice of intention to make the agreement must incorporate recognition that a person who is a member of a union that is able to represent their interests might request that union to represent them in meeting and conferring about the agreement.

PN29

Now, I just wanted to put that concern to you at the outset. If I have misconstrued the Act in that regard, then the opportunity now exists for you to tell me I have misconstrued it. And perhaps before you respond you might want to talk with your client. It may be that some other material is provided to employees, I don't know.

PN30

MR MORITZ: Thank you, sir. I am instructed that the context in which that letter was circulated and certainly the process it was initiated in this regard - - -

PN31

THE SENIOR DEPUTY PRESIDENT: You might need to speak up a little for Mr Clarke. Mr Clarke, can you hear Mr Moritz satisfactorily?

PN32

MR CLARKE: Sorry, sir, can you repeat that?

PN33

THE SENIOR DEPUTY PRESIDENT: Can you hear Mr Moritz?

PN34

MR CLARKE: No. I missed that last section, I had some interference here.

PN35

THE SENIOR DEPUTY PRESIDENT: Okay, I will ask Mr Moritz to repeat it for me, if he can recall it.

PN36

MR CLARKE: Thank you.

PN37

MR MORITZ: Thank you, sir. I am instructed that the process which was followed in relation to the submission of these variations or the proposed variations was considered to be an extension of a process which had originally been initiated when the matter was being dealt with as if the variations were to form part of a new agreement. That situation was discussed in some detail at our previous hearings, and the employees on site had previously been advised of their right to representation. The context in which the proposed variations were submitted was also outlined both verbally and by means of that letter, sir, in which case it would be our contention that the employees were advised or had been advised through the duration of that process to their right to representation.

PN38

THE SENIOR DEPUTY PRESIDENT: I see. So help me out in terms of this proposal now. Is it identical with the earlier proposal?

PN39

MR MORITZ: It is identical sir, in terms of the changes that are sought. There are other variations which arise out of other matters which were raised by the Commission itself as a result of the Electrolux case, but the variations which are put there had been previously considered by the employees in terms of the changes to the specific clauses that we have highlighted as part of the enterprise bargaining process, as opposed to what has subsequently become a variation of the agreement process.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, I will ponder on that, thank you Mr Moritz. Now, Mr Moritz, when do you say this advice was given to employees?

PN41

MR MORITZ: The advice was given to the employees in the form of that letter sir, on 23 November 2004. Prior to that there had been verbal briefings of the employees concerned on two particular shifts, the first such briefing was provided on 16 November sir, and the second on 19 November.

PN42

THE SENIOR DEPUTY PRESIDENT: Well I will call the draft letter that I have been provided with ABC1 - sorry, what was that date again, that was provided to employees?

PN43

MR MORITZ: 23 November, sir.

EXHIBIT #ABC1 DRAFT LETTER DATED 23/11/2004

PN44

THE SENIOR DEPUTY PRESIDENT: And I take it then, Mr Moritz, there were no employees or no requests from a union to be involved in this revised process?

PN45

MR MORITZ: No, sir, neither from the union themselves nor from any members on site.

PN46

THE SENIOR DEPUTY PRESIDENT: I see, thank you. What was the process that was followed to explain the revised agreement to employees?

PN47

MR MORITZ: The proposed variations, sir, arose out of discussions which had been conducted between site managers and the employee representatives in relation to affecting some changes to particular issues, those being the method used to calculate overtime and other references in terms of the clauses which are detailed in our application, sir. Those changes effectively altered the manner in which overtime was to be calculated for the purposes specifically related to shift loading of product obtained from the mine, and it was on that basis sir, that the original application to have certified a new agreement, was presented. That was subsequently varied as I have outlined by the necessity to seek under our current application, a variation of the agreement relying on section 170MD of the Act.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. Paragraph 5.9 of the statutory declaration requires that the manner in which the explanation of the terms of the agreement to employees took place. The response to that particular question or requirement is that the proposed amendments were explained and a copy of the amended provisions provided for all employees. Now, I understand now a copy of the amended provisions was provided to all employees. What I am looking for is a little more explanation about the process of the explanation given to me please. Can you help me in that regard? That is, were all employees gathered together, were they spoken to individually or as groups or what happened?

PN49

MR MORITZ: Initially the process involved each of the shifts of employees, so as a group of employees given a verbal overview of one, what had occurred during the hearing on 29 October, and then an outline of the proposed variations as they were detailed in the amended document. Subsequently, and that occurred sir, on the 16th for one group of employees, and on 19 November for another group of employees, and subsequently all employees were provided with the letter which has been submitted and an amended document which contained all of the variations to which there had been reference. Each of the employees were also advised that they could at any time seek clarification or qualification of any of the issues that had been raised, both through the negotiation of the new variations and also the matter arising from issues identified, arising from the Electrolux matter.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, Mr Clarke, the document that I have been given is a matter which I understand was sent to all employees, signed by Mr Ward. I understand it was sent to all the employees on 23 November. Did you receive such a letter?

PN51

MR CLARKE: I did, sir.

PN52

THE SENIOR DEPUTY PRESIDENT: I see. And are you aware that such a letter was widely circulated amongst all the employees?

PN53

MR CLARKE: Yes, sir. We all discussed it when we got to work.

PN54

THE SENIOR DEPUTY PRESIDENT: I see. And are you aware of any employees who have sought to have a union involved in discussions about the matter?

PN55

MR CLARKE: No, sir, I'm not actually.

PN56

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, what was your understanding of the process now being followed or proposed in that 23 November letter?

PN57

MR CLARKE: That was the requirements of the court, sir.

PN58

THE SENIOR DEPUTY PRESIDENT: Did you understand that the process was a logical sequence or a step on from the earlier proposal for a totally new agreement?

PN59

MR CLARKE: I think the general feeling was that we would prefer just to change this one, sir.

PN60

THE SENIOR DEPUTY PRESIDENT: I see. Now, back in September last year employees endorsed a revised section 170LK agreement. Do you recall that?

PN61

MR CLARKE: Yes, sir.

PN62

THE SENIOR DEPUTY PRESIDENT: Now, did you understand there was any link between this proposal that I now have before me and that September agreement?

PN63

MR CLARKE: Yes. It was just a variation, a clean-up virtually of that same agreement.

PN64

THE SENIOR DEPUTY PRESIDENT: I see. So was it your understanding as an employee representative that the invitation provided back in August last year to employees, such that they could seek to be involved or represented by a union, would still hold true in this matter?

PN65

MR CLARKE: Yes, sir. We were completely aware of that. We did not vary a unionised site..

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Clarke, I am going to ask Mr Moritz a couple of questions about the actual document. Fundamentally there is one issue that I particularly want to take up with him, and that goes to clause 39. Mr Moritz, the provisions of this particular clause relating to flexible remuneration do not, as I read it, establish any specific obligation on any third party such that they could be said to be something which is not pertaining to the relationship of Adelaide Brighton Cement and its employees. However, they do envisage the possibility of such an arrangement. Do you say to me that there is anything associated with the enforceability - - -

PN67

MR CLARKE: Sorry, sir, I am having trouble hearing you.

PN68

THE SENIOR DEPUTY PRESIDENT: Do you say to me, Mr Moritz, that there is anything associated with the enforceability of that particular document or clause?

PN69

MR MORITZ: Sir, in relation to that particular clause, I can advise that it has been deliberately crafted in that manner to avoid any conflict by means of reference to a third party. The enforceability aspect I think arises from the fact there is a commitment of the company to provide for employees to enter into alternative remuneration arrangements, nothing more and nothing less, and also stipulating that any arrangement entered into by an employee cannot result in a claim for underpayment of benefits or entitlements specified by the award or by the agreement. I think that is the extent of the meaning of that clause, sir, and I don't think it offends any other principles which may have a bearing on salary packaging or associated issues.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Clarke, can I take it that you, first of all, heard Mr Moritz, and secondly, agree with his response?

PN71

MR CLARKE: Yes, sir.

PN72

THE SENIOR DEPUTY PRESIDENT: The second question that I have for you, Mr Moritz is, can I take it that the responses to the questions raised with the parties at the time of the initial agreement, that is, the July 2003 agreement came into effect, remain appropriate relative to this document?

PN73

MR MORITZ: Yes, they do sir.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clarke, did you appear in that initial hearing, that is when the agreement was first certified?

PN75

MR CLARKE: Yes, sir.

PN76

THE SENIOR DEPUTY PRESIDENT: And can I take it that you are also in agreement with Mr Moritz in that regard?

PN77

MR CLARKE: Yes, sir.

PN78

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Moritz, on the basis of the information provided to me, I am prepared to make the variation to the agreement sought. I do so on the basis of the advice provided by the parties and supported by the documentation before me, such that this variation to the agreement arose as a direct consequence of the initial proposal on the part of the parties to establish a new section 170LK agreement, and as such, I have taken it that the advice provided to employees of 23 August 2004, which was handed up to me at the last hearing of that initial proposal to make a new section 170LK agreement meets the requirements set out in section 170LK(4) of the Act. I would propose to mark that document and retain it on the Commission's file in this case.

EXHIBIT #ABC2 ADVICE PROVIDED TO EMPLOYEES DATED 23/08/2004

PN79

THE SENIOR DEPUTY PRESIDENT: On that basis I am satisfied that the requirements of section 170LK have been met relative to this application for a variation to the agreement. I am similarly satisfied that the agreement itself in its revised form meets the requirements of the Act necessary for certification insofar as it is consistent with sections 170LT and LU of the Act. The agreement itself is dealing with matters which pertain to the employment relationship, although I do need to indicate to the parties that I have taken clause 39 to be a provision which may or may not be enforceable, should the parties ever need to rely upon it.

PN80

I have also decided that clause 40 is ancillary to the dispute resolution provisions and other provisions of the agreement. The variation to this agreement will come into effect from today, and a certificate to that effect will be forwarded to the parties within the next few days. I congratulate the parties on persevering with the matter and hope this revised agreement continues to operate to benefit both the employer and the employees. Now, before I adjourn, should I take it then, Mr Moritz, that the application filed in the Commission in October 2004 is to be discontinued by agreement?

PN81

MR MORITZ: Yes, sir. I was proposing to make such a - - -

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clarke, I take it that you are in agreement in that regard?

PN83

MR CLARKE: Yes, sir.

PN84

THE SENIOR DEPUTY PRESIDENT: Very well. Are you happy with that approach, Mr Moritz?

PN85

MR MORITZ: Yes, thank you sir, and also thank you on behalf of the company for the accommodation of our arrangements over these hearings.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [1.57PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ABC1 DRAFT LETTER DATED 23/11/2004 PN43
EXHIBIT #ABC2 ADVICE PROVIDED TO EMPLOYEES DATED 23/08/2004 PN78