C2005/1547, Transcript of Proceedings [2005] AIRCTrans 497 (25 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10520

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2005/1547

s.99 - notification of an industrial dispute

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Intercast & Forge Pty Ltd
(C2005/1547)
Metal, Engineering and Associated Industries Award 1998

ADELAIDE

9.33AM, WEDNESDAY, 16 FEBRUARY 2005

PN1

MR M EMMERSON: I appear on behalf of the Australia Manufacturers Workers Union and its union members and with me today is MR L HENBURY, the AMWU delegate and MR S BOYCE, the EBA chairman of Intercast and Forge.

PN2

MR C STARR: I appear for Intercast and Forge Proprietary Limited and with me is MR B TARRY.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Starr. Mr Emmerson, I have listed the matter this morning for a hearing simply because the application makes fundamental reference to an award and to the enforcement of that award. I am aware of the Intercast and Forge agreement, I have a copy of that agreement but I also have a copy of the award, so I am in your hands.

PN4

MR EMMERSON: Thank you, Commissioner. Well, we have sought for this hearing to take place today to seek the Commission's assistance in possibly helping us sort out some dramas that have been going on for a number of months in relation to the award based allowances. The award based allowances in question this morning is basically the tool allowance, which is applicable to tradesmen apprentices, a first aid allowance, obviously for practising first aiders in the company which I believe to be eight to ten of them, and the other two allowances in question today are the hot places allowance, at 59.3(d) of the award or, in particular, the foundry allowance which is applicable to all foundry workers because of the nasty nature and dirty nature of the work.

PN5

Basically, what has happened in the past is throughout negotiations, it was highlighted by the EBA committee and AMWU members that there was a shortfall in superannuation payments, that was basically a shift allowance that was to be applied to superannuation payments and also basically that the failure for the company to pay any of the other listed allowances which we just spoke about.

PN6

So far the company seemed to have addressed the superannuation shortfall as far as the shift allowance goes, when I say they seemed to be, people are now starting to see their superannuation accounts fixed up to the proper position of where they should have been remunerated. Basically, they have only done that for immediate employees at this stage and have not endeavoured to pass it on to recently - ex-employees of the company.

PN7

Now, the only problem with the shift allowances at the moment on superannuation basically is that the company haven't issued any written verification of the figures that they have fixed up for the lads' and the girls' wages down there. Basically they have just had a lump sum of money put into a superannuation account that they hold and no explanation whatsoever as to why that money is there.

PN8

THE SENIOR DEPUTY PRESIDENT: But is superannuation a part of the matters in dispute here?

PN9

MR EMMERSON: No, it is not, Commissioner. I have just highlighted that for the basic reason, just to show that throughout the EBA negotiation process there was a number of concerns raised, that being one of the first ones. I won't dwell on that. I understand where you are going with that, Commissioner. Basically also, like I said, throughout the beginning of negotiations and pretty well from the second EBA meeting which I believe to be either April or May - I have got the paperwork here which I can hand up a bit later, the question was put to the company, we would like to see some proof or some paperwork relating to the allowances and to when the company found agreement with its workforce to roll them into, basically, their wage rates.

PN10

Verbally, we had a response and that was it was done somewhere back in the late `80s and we will endeavour to get the information to you. We have since verbally made many requests and also on a number of occasions have submitted written correspondence relating to this matter. Once again I shall hand that up in time if the Commissioner so desires.

PN11

We have had certain verbal responses from the company. Basically, a Michael Siemen replied, he didn't really give us the answers that we were seeking as Brian Tarry was on holiday. On further request, we still haven't received any written notification as to when agreement was sought with the company with its employees about the allowances. On the third time we requested, Brian Tarry was once again on annual leave, so that sort of slowed things up.

PN12

We believe all aspects of the disputes resolution process have been met as it was brought up through negotiations, it has been brought up with supervisors, and taken to management's notice. The one thing the company did provide was basically handwritten scrawls of what they believed to be the process that took place.

PN13

Those handwritten scrawls basically only related to the formula that they calculate with the worker's wage rates down there. It still, once again, didn't give any agreement as to when the dates for this took place. We are here today, like I said, to sort of see if the Commission can help us clarify this position as we don't believe that we are getting anywhere in dealing with management.

PN14

THE SENIOR DEPUTY PRESIDENT: Can I put my understanding of the problem that is prompting you to be here today in my words so that I can be clear as to what it is you are saying, and you can correct me if I have got you wrong?

PN15

MR EMMERSON: Yes.

PN16

THE SENIOR DEPUTY PRESIDENT: Whilst there might be issues associated with superannuation, they are being addressed at this stage and they will be brought to my attention in accordance with the dispute procedure of the agreement if needs be. But there is a concern over the extent to which the award based allowances detailed in 5.9 of the award have been included in the rates of pay payable to employees under this agreement or whether or not those allowances are separately payable in addition to those rates of pay. Is that right?

PN17

MR EMMERSON: Pretty much, Commissioner. We are stating the allowances should be paid along with the employees' normal hourly rate as stipulated in the award.

PN18

THE SENIOR DEPUTY PRESIDENT: I see. Now, as I said to you at the outset today, I have got a copy of the award and I have got a copy of the agreement together with the decision that accompanied that agreement. That decision records that I was provided with a copy of a wages schedule which was provided on an agreed basis. Do you say to me that wages - and I should say I don't have a copy of that with the file today, but do you say to me that that wages schedule addressed this question at all?

PN19

MR EMMERSON: No, I don't believe the wages schedule does because I don't believe there is to be any reference to the allowances in question.

PN20

THE SENIOR DEPUTY PRESIDENT: All right. And if I look at the agreement - do you have a copy of the agreement there?

PN21

MR EMMERSON: I do, Commissioner.

PN22

THE SENIOR DEPUTY PRESIDENT: Wage increases are dealt with in clause 10. Is there any other reference in the agreement to which you wish to take me where the agreement talks about allowances?

PN23

MR EMMERSON: I don't believe there is any other reference in the agreement, Commissioner, that relates to any allowance payable.

PN24

THE SENIOR DEPUTY PRESIDENT: So that you would simply be relying on clause 5 of the agreement to say that because the Metals Award provides for those various allowances detailed in 5.9 then they will have application because they are not superseded by an award provision. Is that correct?

PN25

MR EMMERSON: That is correct, Commissioner.

PN26

THE SENIOR DEPUTY PRESIDENT: And finally, Mr Emmerson, looking at the application that was made, in that application you said that you would be seeking orders the company comply with the award. The Commission seldom issues orders to that effect because the award itself reflects an order and an order that parties comply with another order doesn't appear to make a lot of sense.

PN27

Generally speaking, a failure to comply with the award is the domain of the Court and the Court can, on application, determine that that party needs to do something in accordance with an award and, indeed, even impose a penalty for not doing it. But leaving that issue aside for the moment, if I understood what you were saying correctly, it was to the effect that you have had various discussions with the employer on these issues - - -

PN28

MR EMMERSON: That is correct.

PN29

THE SENIOR DEPUTY PRESIDENT: - - - and the initial or next step in those discussions as you say, is the provision by the employer of a breakdown of when those various allowances set out in clause 5.9 of the award started to be absorbed into the wage rates payable under the agreement.

PN30

MR EMMERSON: That is correct, yes, we are trying to seek clarification.

PN31

THE SENIOR DEPUTY PRESIDENT: And armed with that, should I understand that you would then go away and ponder upon that and possibly return to the company for some further discussions on that. Is that a fair assessment of the outcome as a first step, if you like, that you are seeking from today's hearing? If it is not, please correct me.

PN32

MR EMMERSON: Commissioner, if the company was to provide proof by however which way it was to come in that, yes, the allowances are rolled into the wage rates, obviously that would be the end of it but at this stage, the company have not provided any proof whatsoever as to when this may have occurred. Through feedback that we are getting from some of our older members that have been in the workplace for a long period of time, they, once again, do not recollect this ever taking place or any agreement sought by the company for this to take place. We believe it is just something that has been imposed on the workforce of Intercast and Forge.

PN33

THE SENIOR DEPUTY PRESIDENT: So that do you say that at some point in the past, those allowances set out in clause 5.9 of the award were paid to employees?

PN34

MR EMMERSON: At this stage, Commissioner, I am not too sure. I don't believe they have ever been paid at all, whether that would be under BTR Castings or the Intercast and Forge or whoever has owned it for the whole period of time.

PN35

THE SENIOR DEPUTY PRESIDENT: All right. Thank you, Mr Emmerson. Mr Starr?

PN36

MR STARR: Thank you, Senior Deputy President. I think Mr Emmerson is right insofar as the superannuation issue, that my understanding from the company is that has been resolved and is not part of the hearing today, that was my understanding. I think Senior Deputy President that the application today is a little premature in my view, that as much as there has been some verbal discussions, that is on the telephone between the company and Mr Emmerson I am advised, and some written documentation between the company and Mr Emmerson that I have copies of. I don't think there has been any face to face meeting out on site to say, well, look, can we go through what has happened and go through with some fine detail in regard to the documentation the company has.

PN37

Mr Emmerson referred to some scrawls of paper, apparently which were supplied again to Mr Emmerson in document form. I think it becomes evident in a discussion that I had yesterday with the company, but I thought that those handwritten notes, if you like, were in fact Mr Tarry is trying to explain what had happened because when I queried him he said, no, no, these are the payroll person's back in that era.

PN38

And inasmuch as it is not as clear cut as you would like in all of these circumstances, I think it clearly does lead to the fact that allowances were paid and have been paid and rolled into the rate. The issue is, yes, the tool allowance is paid to tradesmen there, rolled into the rate, the first aid allowance is not only paid to employees who have the firs aid certificate, in fact they are paid to every employee, rolled into the rate, and the foundry allowance is also rolled into the rate.

PN39

Now, Mr Emmerson mentioned hot place, we say, in accordance with the award, that doesn't apply because they are not cumulative so we say that the three allowances that are in question is the tool allowance, the first aid allowance and the foundry allowance. Now, I note that when this matter came before you, Senior Deputy President, for certification and it was, reading the file, a pretty torturous affair as I understand it. It was certainly on the second hearing before certification was granted on 2 September, this issue got a bit of an airing in regard to what do the rates contain and I must say it jumped around the place a bit and Mr Metcalf who was representing the company at that point in time and being questioned by you, confirmed that all of the allowances were included. Now, certainly later on that day Mr Emmerson claimed that it did not and I think Mr Boyce believed that it did not as well. So it wasn't really addressed in any clear cut fashion.

PN40

But what we have, Senior Deputy President, is copies of an agreement reached by employees acknowledging that these rates are included in their all purpose rate and I have got copies of a selection of agreements of employees there, if I could hand those up if ti would be of assistance to the Commission.

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Starr, I have got an alternative suggestion. I am not all that enthusiastic to acquire that material now. It seems to me that the provision of that information to me might be something that the parties have to do in the future.

PN42

MR STARR: Indeed.

PN43

THE SENIOR DEPUTY PRESIDENT: In the event that the parties were looking for a decision from me about either the way in which the agreement operated or the application of the award. If I am understanding you correctly, you are saying we are not yet at that point.

PN44

MR STARR: Well, I don't think so.

PN45

THE SENIOR DEPUTY PRESIDENT: We are at the point where there probably needs to be some more intensive and focussed discussions between the parties. Rather than receiving that information now, where I might have something that Mr Emmerson may not, I wonder whether it might be more appropriate to suggest to the employer and to the AMWU that it would appear to be consistent with the provisions of the dispute resolution procedure in the award, which is called up by the dispute resolution procedure in the agreement, for me to recommend that the two groups sit down and talk at some stage within the next week. And that that discussion is preceded by the provision to Mr Emmerson of whatever documented evidence you say establishes arrangements relative to the payment of the allowances that are detailed in clause 5.9 so that when the parties sit down to actually talk, they have both got the same documentation before them.

PN46

And that the employer should make every effort to establish as part of that documentation, the circumstances regarding payment of allowances, both before the agreement and after the agreement so that if there was a point in the past where allowances were separately paid, then that ought, if possible, be identified. And if there was a moment in time when someone made a decision to incorporate the allowances, either collectively or individually, as part of the all up wage, then ideally that too would be identified and explained.

PN47

MR STARR: I think there is a difficulty with that period in time.

PN48

THE SENIOR DEPUTY PRESIDENT: I suspected that might be the case. But armed with whatever information is available, if the two groups sat down and had a discussion on that basis such that if you were able to reach agreement that all of those matters were satisfactorily addressed one way or another, then there would be no need for you to give me more information or, indeed, for you to come back here. If you couldn't do that, then it would seem to me to be appropriate for the parties to give me something that says we are, for instance, in disagreement over the application of all of these allowances or we have agreed on certain allowances which are incorporated in the rate whilst we are disputing the application of others. Now, were the matter to come back to me, both groups might need to give some attention to the jurisdictional foundation upon which I could consider it.

PN49

This is, at the present time, a section 99 application. I am not at all sure that I can take that very far at all in terms of the operation of an agreement but it does seem to me to be in the interests of both parties to try to resolve this issue before it becomes a major problem. And, to that extent, if the matter was to come back the parties might need to give consideration to utilising the agreement dispute resolutions provisions as the parties explained those to me at the time of certification. Alternatively, they may need to give consideration to whether or not this is a situation which could be argued as an ambiguity or an uncertainty in terms of section 170MD(6) of the Act but it seems to me that the first step is for people to get their heads together and to see whether, armed with all of the written information that is available, and possibly with a summary of that information which reflects the employer's perspective of things, it might be possible to resolve it. Now, I wonder whether you might comment on that as a proposal.

PN50

MR STARR: Well, I am happy to endorse your comments Senior Deputy President. Again, I formed a view in duly looking at this matter yesterday that it was a little premature on the information that I had and I think that that course of action will assist in clearly identifying if we can agree on some issue, and if we can't agree on those issues and what course we might take to address those issues.

PN51

THE SENIOR DEPUTY PRESIDENT: How long would it take you to provide Mr Emmerson and, indeed, Mr Boyce particularly, with all of the documentation which you say is relevant to this matte.

PN52

MR STARR: I have copies of that with me today, sir, but I think it would be helpful rather than just giving them those documents blank, to actually walk through them, where they have come from, what they actually are, from the company's perspective.

PN53

THE SENIOR DEPUTY PRESIDENT: Okay. If I were to adjourn these proceedings and say I will donate to you the good offices of this court room, would there be any impediment to you folks sitting down and having a talk about that now?

PN54

MR STARR: No, not from - not with us.

PN55

THE SENIOR DEPUTY PRESIDENT: And if you ran into a major problem immediately, you could in fact notify my associate. I have time available until around lunch time today, I think it's 1 o'clock the next hearing is. So that if there was a major problem I am very happy to come back in.

PN56

MR STARR: Okay.

PN57

THE SENIOR DEPUTY PRESIDENT: Either in a conference format or, indeed, to reconvene the hearing.

PN58

MR STARR: I am happy with that, Senior Deputy President.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Emmerson, what do you think of that suggestion?

PN60

MR EMMERSON: Commissioner, we welcome any avenue to sort of clear this path and to get conclusion on it. I hear the party saying that it may be a bit premature being here, I don't think it is. We approached this issue on probably a dozen occasions so I don't believe it to be premature, but I do welcome the Commission's course of action for this morning and I would wholly support it
and - - -

PN61

THE SENIOR DEPUTY PRESIDENT: And you understand that if you ran into a major problem this morning then you can come back to me and we will see what we can do to try to assist in its resolution. It may be that when you have looked at that, or had that material explained to you that you folks need to go away and think about it, and you need a little extra time to do that. And I would explain that perfectly.

PN62

MR EMMERSON: That is quite possible true, Commissioner.

PN63

THE SENIOR DEPUTY PRESIDENT: So that it is possible that you might need my assistance at a time other than today, but what I will do on the basis of what you have told me, is to adjourn this hearing to a date to be fixed and keep the Commission's file open for another couple of weeks so that if there was a need to come back under the auspices of this section 99 application, you could do so. I do need to stress to you though that I suspect that the capacity for me to do a lot in terms of this section 99 application is inherently limited, and if the matter was to progress further you will need to give consideration to the basis upon which the Commission could assist the parties.

PN64

MR EMMERSON: I agree, Commissioner, yes. I understand what you are saying, yes.

PN65

THE SENIOR DEPUTY PRESIDENT: All right. Well, look, feel free to occupy the courtroom.

PN66

MR EMMERSON: Thank you, Commissioner, and once again I thank you
for - - -

PN67

THE SENIOR DEPUTY PRESIDENT: You probably don't need to occupy this seat, that won't help you in resolving the matter. I suggest you best doing it from that table.

PN68

MR EMMERSON: Thank you, Commissioner, for your time today. We are always keen for the Commission to forge a path to see if we can come to a sensible solution and we would also invite the Commission to help the parties even seek a protocol for the delegates in the workplace at a further date too. We would be more than happy for the Commission to help in that aspect as we don't seem to be travelling too well with that one either.

PN69

THE SENIOR DEPUTY PRESIDENT: I see. Well, it does seem to me appropriate to make two observations in that regard, Mr Emmerson. I am aware that I issued a statement or a recommendation on that issue some time in the past.

PN70

MR EMMERSON: Correct.

PN71

THE SENIOR DEPUTY PRESIDENT: It is not a matter addressed in this notification and I won't go there today other than to say that it is not rocket science and people like Mr Starr might be able to help in terms of looking at arrangements that have operated very well in numerous other facilities. And finally, if there is a problem then your agreement dispute resolution process does appear to provide a capacity to seek to come back through section 170LW.

PN72

MR EMMERSON: Thank you, Commissioner.

PN73

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

<ADJOURNED INDEFINITELY [9.59AM]