AG2005/2688, Transcript of Proceedings [2005] AIRCTrans 527 (2 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10593

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2688

s.170LK - agreement with employees (division 2)

APPLICATION BY KORVEST LTD AND ANOTHER
(AG2005/2688)

ADELAIDE

10.46AM, MONDAY, 21 FEBRUARY 2005

PN1

MR D METCALF: I appear for the company and appearing with me is
MR S SIMON and the employer representative, MR J BEVAN.

PN2

MR M EMERSON: I appear on behalf of the Australian Manufacturing Workers Union and its members and we are seeking to intervene today, Commissioner.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Emerson, I have just received advice from the AWU. That advice is signed by you. It indicates that the AMWU seeks to become a party bound to the agreement.

PN4

MR EMERSON: That is correct, Commissioner.

PN5

THE SENIOR DEPUTY PRESIDENT: Should I understand that issue is the basis for your request for intervention today?

PN6

MR EMERSON: That is correct.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. Yes, thank you, Mr Emerson. Mr Metcalf, what's the employer position relative to the AMWU application?

PN8

MR METCALF: I will have to seek some advice on that, sir, if I may.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR METCALF: Senior Deputy President, I am advised that the company doesn't object to the intervention or to the fact the AMWU seeks to be a party to the agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: So that in effect the company is saying that it agrees that the AMWU meets the prerequisites necessary so as to be named as a party bound to the agreement in accordance with section 170M of the Act?

PN12

MR METCALF: Yes, Senior Deputy President.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Emerson, on that basis I grant leave to you to intervene.

PN14

MR EMERSON: Thank you, Commissioner.

PN15

THE SENIOR DEPUTY PRESIDENT: I can advise, Mr Metcalf, that I have read the statutory declarations and I have read the agreement. Do you have a copy of the notice of intention that you can provide to me?

PN16

MR METCALF: Yes, Senior Deputy President, and I submit the document.

EXHIBIT #K1 NOTICE OF INTENTION

PN17

THE SENIOR DEPUTY PRESIDENT: Should I understand that it was sent to all employees?

PN18

MR METCALF: Yes, Senior Deputy President.

PN19

THE SENIOR DEPUTY PRESIDENT: Secondly, the document makes reference to copies of the agreement being available from the consultative committee representative and being on display on notice boards and in lunch rooms. Were those copies of the agreement that are referenced on that basis posted up on notice boards at the same time as this advice was sent out?

PN20

MR METCALF: Yes, Senior Deputy President.

PN21

THE SENIOR DEPUTY PRESIDENT: Should I understand the agreement was not subsequently changed in any way?

PN22

MR METCALF: That's correct, sir.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Metcalf. Mr Bevan, you are here today as the employee representative, is that the case?

PN24

MR BEVAN: That's correct.

PN25

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

PN26

MR BEVAN: Duly elected by the workforce. That would be the correct response. I have been a member of the committee for a couple of years now.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. So there was a vote of employees to elect you as such?

PN28

MR BEVAN: Yes.

PN29

THE SENIOR DEPUTY PRESIDENT: Can you confirm that on or about 22 December last year you received advice indicating the employees' intention to make the agreement?

PN30

MR BEVAN: Yes, sir, that's correct.

PN31

THE SENIOR DEPUTY PRESIDENT: And that around that same time the agreement was posted up on notice boards?

PN32

MR BEVAN: Yes, sir.

PN33

THE SENIOR DEPUTY PRESIDENT: And wasn't changed at all?

PN34

MR BEVAN: No.

PN35

THE SENIOR DEPUTY PRESIDENT: Are you aware of employees who sought to have a union involved in discussions about the agreement?

PN36

MR BEVAN: Yes. I haven't been involved in that but I am aware that members of the galvanising division have sought union representation. I am not sure how many or - it was sort of - not to sort of elaborate too much, but there seemed to be some confusion between that division and they decided to go to the union or something to try and get better conditions or whatever, I am not sure. The representative from that galv department had already made agreement with the committee and the committee felt that it was all tidied up so, yes, exactly where they came from, I am not sure.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Bevan. Mr Emerson, what is the AMWU position on the question of the compliance of the parties with the process which is set out in section 170LK of the Act?

PN38

MR EMERSON: We do believe certain requirements have been met. We were a little bit concerned at one stage after the first vote was voted down. We then had our members request that we participate. Unfortunately, at that stage negotiations seemed to have concluded but our members wanted us to be bound by the agreement so we could represent them for future - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Did the AMWU make a request to meet and confer with the employer about the terms of the agreement prior to the employees endorsing the agreement?

PN40

MR EMERSON: We did send notification to the company through a notice of argument. We also sent correspondence to the company initially telling them that we would also be part of negotiations.

PN41

THE SENIOR DEPUTY PRESIDENT: Was that request sent prior to employees endorsing the agreement?

PN42

MR EMERSON: Yes, Commissioner, it was.

PN43

THE SENIOR DEPUTY PRESIDENT: If I look at the statutory declarations, those declarations indicate to me that no request was made for a union to meet and confer with the employer about the agreement before it was made. What you are saying to me is that there was such a request.

PN44

MR EMERSON: I will just have a quick look through the file, Commissioner, but I believe there was a request. I can produce the documentation for the Commission at a later date if need be. We do have some correspondence, I have been unable to photocopy it for the Commission's benefit today which I do apologise for. We basically were asked to represent the workforce pretty well just before they were about to take the first vote. The first vote went down. I am not exactly sure on the numbers but because there was 28 per cent of the workforce at Korvest who didn't vote in that agreement the company decided it would then take another vote. I believe the vote didn't quite go over the two-week period, as far as the LK provisions are concerned. I may be incorrect in that statement, Commissioner, but I am led to believe that it was done within a week to a week and a half after the initial vote first went down.

PN45

THE SENIOR DEPUTY PRESIDENT: You are referring to initial votes and second votes. The information before me indicates that the employer provided a notice of intention to employees on 22 December last year.

PN46

MR EMERSON: That's correct.

PN47

THE SENIOR DEPUTY PRESIDENT: The advice I have been given is that the agreement that was published and made available to employees on that same day was the same as the agreement that I have got before me.

PN48

MR EMERSON: That is correct.

PN49

THE SENIOR DEPUTY PRESIDENT: In the period between 22 December last year and the time when the agreement was endorsed by employees, which was 28 January this year, did the AMWU make a request to meet and confer with the employer about the terms of the agreement? I am asking that question because if such a request was made, and if it was not met by the employer, that is if there was a request for a meeting to confer about the terms of the agreement that was refused, then Mr Metcalf is going to need to demonstrate to me how it is that the requirements of section 170LK(5) have been met.

PN50

MR EMERSON: Yes, Commissioner, I have a document in my hand that does seek further discussion on the matter at hand. There is no pencilled in dates. This document was dated on the 28th which - - -

PN51

THE SENIOR DEPUTY PRESIDENT: The 28th of what month?

PN52

MR EMERSON: 28 January 2005, which is the final cut off date and it was faxed off originally at 10 past 9 in the morning on 28 January. I can hand this up to the Commission if need be. Unfortunately, like I stated earlier, I have not had time to photocopy it for its benefit so it is an original copy.

PN53

THE SENIOR DEPUTY PRESIDENT: You had better not give me an original at this stage. We will just try and clarify the position. Before I look to
Mr Metcalf in that regard, I need to be clear as to what it is that you are saying to me. If I understand it correctly, and tell me if I am wrong, just prior to employees voting to approve the agreement, the AMWU sought to meet and confer with the employer about the terms of that agreement. I further understand that if that's what you are saying, then notwithstanding the proposal that the AMWU comply with the requests of its members so as to be made a party bound to the agreement, that you were saying to me that the agreement does not meet the prerequisites necessary for certification because of the requirement set out in section 170LK(5). I have put that in my words. This is your opportunity to tell me whether I have got it right or wrong.

PN54

MR EMERSON: We did seek to be part of further negotiations, Commissioner, but Mr Metcalf would have to describe exactly the process that took place between the two votes. Like I stated earlier, I may be using an incorrect statement there, we believe to be a week and a half after the original vote. But I just need to plain and clear here today, Commissioner, we are not seeking to oppose the certification of the agreement. If the company have lacked in their process, I would best leave that to the company to describe to the Commission itself. We do not seek to oppose the agreement today.

PN55

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Mr Metcalf?

PN56

MR METCALF: In terms of the union seeking to be or seeking to meet and confer, Senior Deputy President, I might answer first, they sent a letter on 28 January 2005, just in regard to that issue - sorry, prior to that they sent a letter on 25 January 2005, notice of intention of a bargaining period and obviously the second vote was held on 28 January 2005 at the same time they received the letter from the union in regard to meeting and conferring. If I may submit that document.

PN57

THE SENIOR DEPUTY PRESIDENT: Then what you are saying is that at the same time as which employees were approving the agreement, the employer received a request from the AMWU to meet and confer?

PN58

MR METCALF: Yes, Senior Deputy President.

PN59

THE SENIOR DEPUTY PRESIDENT: I see.

PN60

MR METCALF: I might just clarify in terms of what occurred in regard to the voting, Senior Deputy President.

PN61

THE SENIOR DEPUTY PRESIDENT: All right.

EXHIBIT #K2 LETTER FROM MR EMERSON TO MR SIMON OF KORVEST DATED 28/01/2005

PN62

THE SENIOR DEPUTY PRESIDENT: I would also note that it has got a number of handwritten notations on it. I presume that they have been - - -

PN63

MR METCALF: They have been added.

PN64

THE SENIOR DEPUTY PRESIDENT: - - - added subsequent to Mr Emerson sending the letter.

PN65

MR METCALF: Yes, Senior Deputy President.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Metcalf.

PN67

MR METCALF: After issuing all employees with a notice of intention and the final agreement on 22 December 2004, the company decided to take a vote on 18 January 2005. Unfortunately almost a third of the workforce did not vote for various reasons and on discussions with the consultative committee the company decided to hold a second vote to gain a true reflection of the workforce, Senior Deputy President. I have a copy of the minutes of the consultative committee meeting here, sir, that I would like to submit just for your edification.

EXHIBIT #K3 CONSULTATIVE COMMITTEE MINUTES OF MEETING OF 19/01/2005

PN68

MR METCALF: That's just an explanation of what actually occurred during that meeting, Senior Deputy President, the company and the consultative committee decided that a second vote was needed, as I say, to gain a true reflection of what the workforce felt.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR METCALF: An internal memo was sent then to all employees on 19 January 2005, explaining that due to the large number of employees that did not vote, the company was preparing for a revote within the next two weeks. I have a copy of that document for submission, sir.

EXHIBIT #K4 MEMORANDUM TO EMPLOYEES DATED 19/01/2005

PN71

MR METCALF: On 27 January 2005, employees were informed in writing that a second vote would take place on the Friday, 28 January 2005. I also have a copy of that document for your edification, Senior Deputy President.

EXHIBIT #K5 MEMORANDUM TO EMPLOYEES DATED 27/01/2005

PN72

MR METCALF: That letter basically went out prior to receiving the union's letter in regard to meeting and conferring and the vote was taken then on
28 January 2005. I would also submit a document that explains the outcome of that vote, Senior Deputy President.

EXHIBIT #K6 MEMORANDUM TO EMPLOYEES DATED 31/01/2005

PN73

THE SENIOR DEPUTY PRESIDENT: Mr Metcalf, can I take you back to K2, that's the correspondence from Mr Emerson to the company dated 28 January. In the third last paragraph - let me work through this. In that correspondence, Mr Emerson asserts that:

PN74

Section 170LK(2) has been breached by not allowing 14 clear days' notice in writing of the intention to make the agreement.

PN75

Should I understand that what you are saying to me there is that K1 reflects a notice of intention to make the agreement consistent with section 170LK(2)?

PN76

MR METCALF: That's correct, Senior Deputy President.

PN77

THE SENIOR DEPUTY PRESIDENT: If I then look at Mr Emerson's letter of 28 January where he states:

PN78

Section 170LK(4) has been breached by not notifying your employees that they can seek representation by their organisation of employees so that organisation can represent their industrial interests.

PN79

If I understand it correctly, you are saying to me that K1, which is the notice of intention, says that:

PN80

If employees so wish they may seek representation by any employee association of which they may be members to confer on their behalf -

PN81

and that that meets the requirements set out in section 170LK(4), notwithstanding that it's slightly differently expressed.

PN82

MR METCALF: Yes, Senior Deputy President.

PN83

THE SENIOR DEPUTY PRESIDENT: The next paragraph of Mr Emerson's letter says that:

PN84

Section 170LK(5) has been breached by not allowing the AMWU to meet and confer as requested by its members, the workforce of Korvest Limited.

PN85

I had previously understood you to be saying that the request to meet and confer was embodied in the correspondence of 28 January, which was received at about the same time that employees were in fact voting to endorse the agreement. I am struggling a little with that now because this letter appears to assert that as of 28 January, Korvest had already refused to agree to a request to meet and confer. I wonder whether you might clarify with your client your client's view of when the first request to meet and confer was made by the AMWU.

PN86

MR METCALF: May I just clarify, Senior Deputy President, basically there was no advice to the company from the AMWU until 25 January 2005 and that was the notice of intention of bargaining period, then on the 28th another letter in writing.

PN87

THE SENIOR DEPUTY PRESIDENT: I am sorry, there are too many dates being bandied around here. There was no request until 25 January 2005?

PN88

MR METCALF: That's the notice of intention of the bargaining period, Senior Deputy President.

PN89

THE SENIOR DEPUTY PRESIDENT: I see. Have I been provided with a copy of that?

PN90

MR METCALF: No. May I submit that document. Sorry, Senior Deputy President.

EXHIBIT #K7 CORRESPONDENCE FROM AMWU DATED 25/01/2005

PN91

MR METCALF: Sir, may I just clarify, that was a letter that didn't actually state to meet and confer with the company. It was just the intention of the bargaining period and this was already during the stage the agreement was being considered by the employees within the 14 days.

PN92

THE SENIOR DEPUTY PRESIDENT: I see.

PN93

MR METCALF: Then the written letter on 28 January 2005, was the only letter the company received in regard to meeting and conferring with the union, Senior Deputy President.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Emerson, I understand that you are not here today to oppose certification of the agreement. Notwithstanding that, I have an obligation under the Act to make sure that the process that was followed in this instance was consistent with that set out in section 170LK. Can I refer you to that third last paragraph in the letter of 28 January, where you say that:

PN95

Section 170LK(5) has been breached by not allowing the AMWU to meet and confer as requested by its members, the workforce of Korvest Limited.

PN96

What underpinned that particular sentence?

PN97

MR EMERSON: Good point, Commissioner. There was some clear breaches we thought in the process. I would say generally the clear breach, and it's probably more identifiable today, is basically 170LK(2). I do know I have my signature on the letter at this stage but at that stage there was another organiser from our division looking after this particular job. I would have to say to the Commission now possibly the 170LK(5) section hasn't been breached by the company. With reading the information here today I would daresay our first request for further discussion is probably contained in this letter, Commissioner.

PN98

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Given that I now have a copy of that letter, should I understand that what you are saying is there are in effect no breaches of the requirements of section 170LK in this matter?

PN99

MR EMERSON: I would say that would be correct, Commissioner, yes.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. If I can then move on to the agreement itself. Mr Bevan, do you have a copy of the agreement?

PN101

MR BEVAN: Yes, sir.

PN102

THE SENIOR DEPUTY PRESIDENT: I am going to ask Mr Metcalf some questions about the agreement. By and large my questions do not invite Mr Metcalf to vary the terms of the agreement at all. They go simply to establishing, first of all, the intention of the parties about various provisions; and secondly, in one particular case, they go to establishing whether some of the material before me is part of the agreement.

PN103

Mr Bevan and indeed Mr Emerson, if you want to add anything to Mr Metcalf's responses to my questions, feel free to do so. Mr Metcalf, can I take you first of all to clause 9. This is the dispute settling procedure. Clause 9(d) envisages that:

PN104

A matter might be referred to the Commission for the appointment of a board of reference.

PN105

Presumably that board of reference would be empowered to come up with a binding solution to the matter by way of a vote as a last resort.

PN106

MR METCALF: Yes, Senior Deputy President.

PN107

THE SENIOR DEPUTY PRESIDENT: Clause 10 relates to work organisation; 10(d) refers to the Korvest Limited job classification structure. Is that structure contained in a document readily available to employees and is it a document that might be changed over the life of this agreement?

PN108

MR METCALF: I submit that document for your edification, sir. In terms of your questions, I don't believe it would change through the life of the agreement. It is possible. The reason we did separate the classification structure from the agreement was to rectify some of the flaws that lay within the classifications that we work under. As machinery has been upgraded we found that the classification structure has been left behind so it's a little bit outdated in parts. It's mainly only in the manufacturing area and any alterations would then have to go back through the committee for approval before changes would be made.

PN109

THE SENIOR DEPUTY PRESIDENT: I see. So that I should understand that this classification structure might be changed over the life of the agreement but that would occur through a consultative process.

PN110

MR METCALF: Absolutely.

PN111

THE SENIOR DEPUTY PRESIDENT: And presumably occur by agreement, is that the case?

PN112

MR METCALF: Yes, a two-thirds majority.

EXHIBIT #K8 KORVEST LIMITED CLASSIFICATION STRUCTURE

PN113

THE SENIOR DEPUTY PRESIDENT: Whilst still on clause 10, 10(h) refers to consultative committees or consultative mechanisms to review certain functions. Should I understand that will occur over the life of the agreement or is there a more particular timeframe the parties have in mind?

PN114

MR METCALF: I am instructed, Senior Deputy President, that that would continue through the life of the agreement.

PN115

THE SENIOR DEPUTY PRESIDENT: Clause 10(i) references relevant Korvest policies. Once again, should I understand that those polices are documented, readily available to employees and subject to change over the life of the agreement?

PN116

MR METCALF: Yes, Senior Deputy President.

PN117

THE SENIOR DEPUTY PRESIDENT: Clause 13 envisages that journey injury insurance will be taken out on the basis of costs being shared equally. Are you able to provide me with details of that cover and indeed the cost implications on employees? As part of that same question, I would like to know whether employees are obligated to take out that journey accident insurance as a condition of employment or whether it is a voluntary arrangement.

PN118

MR METCALF: I believe it is a voluntary arrangement with the employees, Senior Deputy President. I have a copy of the policy here. It doesn't actually state what employees would have to pay in regard to that.

PN119

THE SENIOR DEPUTY PRESIDENT: If it's voluntary I am not so concerned about that.

EXHIBIT #K9 KORVEST LIMITED JOURNEY INSURANCE POLICY DETAILS

PN120

THE SENIOR DEPUTY PRESIDENT: Clause 14 relates to superannuation. With respect to that last paragraph, would it be the intention in that case for the parties to seek to vary the agreement?

PN121

MR METCALF: It wasn't intended to mean that, Senior Deputy President, but if there was some contradiction in terms of the legislation or the changes to the legislation and the agreement itself in regard to salary sacrifice then obviously the company would seek to vary that.

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you. The provisions of clause 16 give rise to a question which differs a little from my other questions. It has its genesis in the High Court, Electrolux decision which is basically authority for the requirement that all of the terms of an agreement need to relate to the relationship between the employer and its employees. As a consequence, I seek advice from you as to whether the dollar-for-dollar contribution on the part of the employer is an amount paid to an employee or whether it's an amount that is undertaken to be paid to a charitable institution, that is, to make it absolutely clear, if Mr Bevan is donating $1 per week to, let's say, Care Australia, then is the employer undertaking to make a similar payment to Care Australia or is the employer making that similar payment to Mr Bevan? You might want to gain advice from your employer about that matter.

PN123

MR METCALF: I am instructed, Senior Deputy President, that in the example that you used the company would reimburse or pay the moneys due to Care Australia.

PN124

THE SENIOR DEPUTY PRESIDENT: Then can you tell me how I can regard that arrangement that it is anything other than an obligation on the employer to make payments to a third party not party to this agreement? I should say I am not endeavouring to put hurdles before the parties in terms of certification of the agreement but I am struggling with that particular provision. I can take it away and ponder upon it, particularly in the light of the hopefully soon to be pending decisions that might clarify some of those issues. But I will need your help if I am to be persuaded that I can regard it as a pertaining matter at the present time.

PN125

MR METCALF: We would probably take the same stance as we have in previous agreements, Senior Deputy President, by leaving it up to the discretion of the Commission.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes. Can I then take you to clause 19 which talks about the absenteeism incentive bonus scheme. This talks of a cash bonus of half for each six month period of this agreement. The first question that arises is half of what? Perhaps while you are getting instructions, Mr Metcalf, I will direct the second part of the question to the amount that is bracketed talks about 0.5 per cent. 0.5 per cent isn't normally a half. It's repeated though in the provisions of clause 20 so that the same sort of question arises there.

PN127

MR METCALF: In regard to the half question, Senior Deputy President, if I might respond to that first. It's only 0.5 of one per cent.

PN128

THE SENIOR DEPUTY PRESIDENT: I see, so it's a half of one per cent of presumably wages paid to employees on a weekly basis? I didn't write it, Mr Metcalf, so I am reliant upon you.

PN129

MR BEVAN: The intention of this clause is for half a per cent of six months' normal time work so, calculated over that six month period, half a per cent.

PN130

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Presumably, if I look then at clause 20, equally there - is that a half of 1 per cent again?

PN131

MR METCALF: Yes. Excuse me, may I just clarify that, Senior Deputy President?

PN132

THE SENIOR DEPUTY PRESIDENT: Certainly. I must say I am struggling with it, Mr Metcalf.

PN133

MR METCALF: So am I. Just to clarify that, Senior Deputy President, I think because of the actual total the employees are receiving over that period is a rather large amount of money that it is half of 0.5 per cent in regard to that calculation, sir. I just needed to clarify that with the company.

PN134

THE SENIOR DEPUTY PRESIDENT: Sorry, I am now truly lost. Is it half of 0.5 of a per cent or half of one per cent?

PN135

MR METCALF: It's half of one per cent, which is 0.5.

PN136

THE SENIOR DEPUTY PRESIDENT: Then if I look at clause 20, then I understand that if labour variance targets are achieved in both manufacturing and galvanising divisions for the six month period then, once again, a half of one per cent will be paid to all employees covered under the agreement.

PN137

MR METCALF: Yes, Senior Deputy President.

PN138

THE SENIOR DEPUTY PRESIDENT: For the purposes of that productivity bonus, warehouse employees are considered to be part of the manufacturing division. So presumably then if the manufacturing division does not achieve the relevant target then the warehouse employees don't receive that productivity bonus?

PN139

MR METCALF: Yes, that's the case, Senior Deputy President.

PN140

THE SENIOR DEPUTY PRESIDENT: Thank you. If I can then take you to the signature page of the document. Having got there, I will ask you to turn to the next page which is headed, "Korvest Limited Adelaide Enterprise Flexibility Agreement 2005-2006, Explanation Document". Should I take it that that is not part of the agreement but it reflects the explanation provided to employees about the terms of the agreement?

PN141

MR METCALF: Yes, sir.

PN142

THE SENIOR DEPUTY PRESIDENT: Equally there is an employee voting form. I presume that it's not intended that be part of the agreement either?

PN143

MR METCALF: Yes, Senior Deputy President.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Metcalf. Mr Bevan, can I take it that you are in agreement with all of Mr Metcalf responses to me?

PN145

MR BEVAN: That's correct.

PN146

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Emerson, are you in a similar position?

PN147

MR EMERSON: Yes, Commissioner. We are not opposing certification today at all, your Honour.

PN148

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. On the information provided to me by the parties, I am satisfied that the agreement was reached through a process consistent with section 170LK of the Act. I am similarly satisfied that if I get to consideration of sections 170LT and LU of the Act, neither of those sections would preclude certification of the agreement. The only outstanding issue is whether or not I can conclude that all of the terms of the agreement pertain to the employment relationship. In that regard, the only clause that's causing me difficulty in that regard is clause 16, which is somewhat ironic given that it's obviously there for the very best of intentions.

PN149

I will take that clause away and ponder upon it over the few days. It may be that if the Full Commission, hands down a decision in the near future in what I colloquially call the Shaffknacker appeals, that that decision will clarify that issue. I am not sure how long you would want me to wait for such a decision,
Mr Metcalf. Have you given any thought to that issue?

PN150

MR METCALF: No, Senior Deputy President.

PN151

THE SENIOR DEPUTY PRESIDENT: I will leave that question with the parties. Equally, if there is any further information the parties want to give to me over the next few days with respect to clause 16, I am happy to receive that in written form.

PN152

MR METCALF: Yes.

PN153

THE SENIOR DEPUTY PRESIDENT: Mr Bevan, I am particularly concerned that the employees understand the basis of the concern that I have about clause 16. Do you understand that issue or is there any further information I can give to you to clarify that matter?

PN154

MR BEVAN: Possibly, yes, your Honour.

PN155

THE SENIOR DEPUTY PRESIDENT: The High Court decision in Electrolux, said that in effect all of the terms of an agreement, that is all of the clauses, need to detail matters that are between the employer and the employee and that if they don't do so then the Commission is not in a position to certify an agreement under this provision of the Act. The difficulty that I am foreshadowing in relation to clause 16 is that clearly with the very best of intentions the parties have put in place an arrangement that in effect, as I see it now, obligates Korvest to pay amounts of money to a nominated charity.

PN156

MR BEVAN: That's correct.

PN157

THE SENIOR DEPUTY PRESIDENT: The issue there is the extent to which that clause can then be said to be dealing with the relationship of Korvest and its employees as distinct from dealing with the relationship of Korvest and that nominated charity. Had the money been paid and the employer contribution been paid to the employees for payment to a charity then clearly it's an inhouse arrangement not involving a third party. As it stands, it appears to me on the face of it, to involve a third party. The appeal decisions that I have discussed with Mr Metcalf are considering a range of different agreement prescriptions but they may shed some light on this issue.

PN158

I am loathed to tell the parties that I can't certify the agreement because of the fact that it's clear that they have set about to incorporate this provision with the very best of intentions. But I would be doing no one a favour if I certified the agreement because unless the agreement terms pertain to that employment relationship, then that certification may be invalid. So it may render the document that you are looking to rely upon as, in effect, an unreliable document which is why I want to take that issue away and think about it and see whether I can come up with a solution to your problem. If I can't do so then in simple terms the parties will need to revisit the process and in effect excise that particular provision.

PN159

MR BEVAN: Yes. I understand that.

PN160

THE SENIOR DEPUTY PRESIDENT: Does that help in terms of the explanation of the matter?

PN161

MR BEVAN: Yes.

PN162

THE SENIOR DEPUTY PRESIDENT: You may be called upon to pass on that explanation to other employees.

PN163

MR BEVAN: Yes.

PN164

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Mr Metcalf, can I finally comment that if having pondered upon clause 16 I was not able to certify the agreement, then the parties would need to repeat the process, changing that particular clause. If that was done, or if that was required to be done, and the parties provided me with a new agreement, new statutory declarations, and in the case of the AMWU, a further advice saying they wish to be party to the agreement, then I would, if satisfied about the process that was followed, certify the agreement without the need for a further hearing. So that might be something else the parties themselves want to take away and think about. Meanwhile, I will reserve a decision on this particular application and hopefully provide that decision to the parties in the not too distant future. Are you happy with that approach?

PN165

MR METCALF: Yes, thanks.

PN166

THE SENIOR DEPUTY PRESIDENT: Mr Bevan, are you happy with that approach?

PN167

MR BEVAN: Yes, sir.

PN168

THE SENIOR DEPUTY PRESIDENT: And Mr Emerson?

PN169

MR EMERSON: Yes, Commissioner.

PN170

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

<ADJOURNED INDEFINITELY [11.33AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K1 NOTICE OF INTENTION PN16
EXHIBIT #K2 LETTER FROM MR EMERSON TO MR SIMON OF KORVEST DATED 28/01/2005 PN61
EXHIBIT #K3 CONSULTATIVE COMMITTEE MINUTES OF MEETING OF 19/01/2005 PN67
EXHIBIT #K4 MEMORANDUM TO EMPLOYEES DATED 19/01/2005 PN70
EXHIBIT #K5 MEMORANDUM TO EMPLOYEES DATED 27/01/2005 PN71
EXHIBIT #K6 MEMORANDUM TO EMPLOYEES DATED 31/01/2005 PN72
EXHIBIT #K7 CORRESPONDENCE FROM AMWU DATED 25/01/2005 PN90
EXHIBIT #K8 KORVEST LIMITED CLASSIFICATION STRUCTURE PN112
EXHIBIT #K9 KORVEST LIMITED JOURNEY INSURANCE POLICY DETAILS PN119