AG2005/2690, Transcript of Proceedings [2005] AIRCTrans 526 (2 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10592

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2690

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

APPLICATION BY OSMUNDSON AUSTRALIA PTY LTD T/AS AGPOINT AUSTRALIA AND ANOTHER
(AG2005/2690)

ADELAIDE

11.40AM, MONDAY, 21 FEBRUARY 2005

PN1

MR D METCALF: I appear on behalf of the company and appearing with me is MR G WARD.

PN2

MR C FENNEY: I appear on behalf of the AMWU and the members of Agpoint.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Fenney. I can advise the parties that I have read the statutory declarations and I have read the agreement. I am aware that this agreement closely reflects another application that I have, and that I have considered as part of a fairly substantial number of matters that have been adjourned, hopefully waiting for clarification in terms of the Full Bench Shafonack appeals. Notwithstanding that those decisions have not been announced, I have determined a position in relation to that other matter and I would expect the parties to be advised of that within the next 24 or 48 hours. I have done so on the basis of reliance on the Federal Court decision of Justice French in Wesfarmers.

PN4

Mr Metcalf, can I just clarify what I think is a typographical error in the employer's statutory declaration. Should I understand that the agreement was approved by the relevant majority of employees on 11 January 2005?

PN5

MR METCALF: Excuse me, sir. Yes, that would be the case Senior Deputy President.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you. I have no further questions about the process that was followed. Can I take the parties to the agreement itself. Clause 12 relates to the avoidance of industrial disputes. Mr Fenney, have you got a copy of the agreement?

PN7

MR FENNEY: Yes. I have.

PN8

THE SENIOR DEPUTY PRESIDENT: That is good, Thank you. I was going to offer to loan you one, that is all. Clause 12.2 establishes the capacity for the Commission to arbitrate over a matter in dispute. Given the extent to which the agreement is to be read in concert with the Metal Industry Award, should I understand then that the powers or the jurisdiction allocated to the Commission in terms of 12.2 applies only to matters covered by this agreement or does it also apply to matters that might be addressed in the award?

PN9

MR METCALF: Excuse me, Senior Deputy President?

PN10

THE SENIOR DEPUTY PRESIDENT: I should say, there is no right or wrong answer, other than both of you probably need to give me the same answer.

PN11

MR METCALF: I am instructed Senior Deputy President, that that could cover areas in terms of if there was a dispute in regard to the award also, sir.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Fenney, have you got the same view?

PN13

MR FENNEY: Yes, that is correct.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Now clause 13 - 13.1 operates such that I am satisfied that that can be said to be a matter which is incidental or ancillary to the dispute resolution provisions of the agreement. There is a question that stands though, relative to what is meant by previous protocols. Are they documented arrangements or how should I understand what is agreed in that regard?

PN15

MR METCALF: Excuse me, Senior Deputy President. The intention of that area, Senior Deputy President, was in regard to, for example, past - all phone calls that were to be made to the union in terms of that area, so they are not actually documented policies or procedures as such, they are just past precedence, I suppose of the company.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you. I am satisfied that clause 13.2 can be said to be a provision which is ancillary or incidental insofar as it is qualified by the purpose being to discuss legitimate union business affecting Agpoint. The provisions of clause 13.3 do not now, in my view, prohibit certification simply on the basis of Justice French's decision in Wesfarmers.

PN17

Clause 16 deals with the previous enterprise agreement. To what extent is that in effect, a redundant provision, given the provisions of this agreement?

PN18

MR METCALF: Sir, I may just explain, I took the initiative to search back through those previous agreements in relation to productivity improvements and wage increases. It appears that the current provisions in this agreement, would in fact override these provisions in the previous agreement, because essentially the only change are changes being percentage increases discussed in both of these areas in terms of wages and also in terms of productivity. There is essentially nothing contained in the particular provisions within the previous agreements that would cause any problem in terms of section 170LI, in my opinion sir.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN20

MR METCALF: May I also clarify just at this point. I discussed with the union about the date and period of operation and from the company's perspective too, that we are looking to put that on transcript that it was agreed that that would operate from 1 November 2004 in terms of clause 5 and then that would have effect on clause 9.2.1 also.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, but if I certified the agreement, Mr Metcalf, it would be from today. What the parties then agree in terms of retrospective payment of amounts, is a matter for the parties.

PN22

MR METCALF: Sure.

PN23

THE SENIOR DEPUTY PRESIDENT: If I certify the agreement, it will not be certified with effect from a date prior to today.

PN24

MR METCALF: I understand.

PN25

THE SENIOR DEPUTY PRESIDENT: Clause 19 invokes the provisions of clause 41 of a 20 year old award. In fact, it is probably 21 years old now. Is that clause 41 available in a documented form to employees so that they may see it on request?

PN26

MR METCALF: Excuse me, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: Not everybody has a copy of that award in its 21 year old form.

PN28

MR METCALF: No. Senior Deputy President, I am instructed that that would be available to employees on request. Obviously, we have copies of that award available and the company also would have a copy of that award.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 23 relates to seasonal labour requirements. Am I correct in understanding that that clause is dealing with casual employment arrangements that operate, such that Agpoint is the employer?

PN30

MR METCALF: Yes, Senior Deputy President.

PN31

THE SENIOR DEPUTY PRESIDENT: Clause 25 deals with portable entitlements. Should I understand that in the event of an alternative Federal Scheme, the parties would then propose to seek a variation to this agreement?

PN32

MR METCALF: Excuse me, sir. Yes, Senior Deputy President.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you Mr Metcalf. Mr Fenney, can I take it that you are in agreement with Mr Metcalf's responses to my questions?

PN34

MR FENNEY: Yes, Mr O'Callaghan.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis, I am satisfied that the agreement was reached through a process consistent with section 170LJ of the Act. I am similarly satisfied that the agreement itself deals with matters which pertain to the employment relationship and that the agreement meets the pre-requisites necessary for certification and as set out in sections 170LT and LU of the Act. Accordingly, I will certify the agreement with effect from today. A certificate to that effect will be forwarded out to the parties within the next few days. That certificate will identify the various clauses about which I sought clarification. It will not detail the answers that I have been given, because those are recorded on the transcript of these proceedings. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and the employees concerned.

<ADJOURNED INDEFINITELY [11.51AM]