AG2005/2689, Transcript of Proceedings [2005] AIRCTrans 528 (2 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10594

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2689

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

APPLICATION BY SKILLED GROUP LTD AND ANOTHER
(AG2005/2689)

ADELAIDE

10.02AM, MONDAY, 21 FEBRUARY 2005

PN1

MR D METCALF: I appear on behalf of the company and appearing with me is MR C HARTLEY and the employee representative, MR T FLAVEL.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Metcalf. Mr Metcalf, I have read the statutory declarations and I have read the agreement. Are you able to provide me with a copy of the employer's notice of intention in this matter?

PN3

MR METCALF: Yes, sir. If I may just clarify, Senior Deputy President, there were actually two issued. The first one was on 2 December, in which stated that a vote would be held on 20 December, but because the employees were away on annual leave et cetera, over that period for Christmas, they actually moved the date to 18 January, I think that form states, 2005.

PN4

THE SENIOR DEPUTY PRESIDENT: I see. Thank you.

EXHIBIT #S1 LETTER TO ALL EMPLOYEES DATED 29/12/2004

PN5

THE SENIOR DEPUTY PRESIDENT: Should I understand that the copy of the agreement which is referred to in that letter, is the same as the document that I have before me?

PN6

MR METCALF: Yes, Senior Deputy President. It was attached to that letter, I believe.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Metcalf. I might just clarify a couple of issues with Mr Flavel, thank you. Mr Flavel, you are here today as the employee representative, is that correct?

PN8

MR FLAVEL: That is correct.

PN9

THE SENIOR DEPUTY PRESIDENT: And how did you get to be the employee representative? Were you elected as such?

PN10

MR FLAVEL: Yes, I was by the people involved with the Skilled Group.

PN11

THE SENIOR DEPUTY PRESIDENT: And can you confirm that on or about 29 December, you received a letter in the terms in which Mr Metcalf has provided me now?

PN12

MR FLAVEL: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Do you understand that letter was sent out to all employees?

PN14

MR FLAVEL: Yes, it was.

PN15

THE SENIOR DEPUTY PRESIDENT: And are you aware of any employee who sought to have a union involved in meeting and in referring with the employer about the agreement?

PN16

MR FLAVEL: No, I am not aware of anyone needing that.

PN17

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now Mr Flavel, I am going to ask Mr Metcalf some questions about the agreement. Do you have a copy of the agreement in front of you?

PN18

MR FLAVEL: Yes, just here.

PN19

THE SENIOR DEPUTY PRESIDENT: All right. My questions do not invite him to re-write the document at all. They simply go toward clarifying matters that I will need to take into account. If you want to add anything to any of Mr Metcalf's answers, please feel free to do so. Mr Metcalf, can I take you to clause 3 of the agreement. Could I just clarify, am I correct in understanding there is no current generally applicable agreement relative to Skilled Engineering?

PN20

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

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 5 establishes that an AWA can be entered into any time between the company and an employee, and shall operate to the exclusion of the agreement. Should I understand that the parties are satisfied that they have the capacity to do just that?

PN22

MR METCALF: Yes, sir.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. The provisions of 5.3 and 5.4 relate to the operation of other awards. Am I correct in understanding that those two clauses taken together, effectively mean that the agreement stands alone, apart from nominated clauses to be drawn from that Metal Trades SA Award?

PN24

MR METCALF: That is correct, Senior Deputy President.

PN25

THE SENIOR DEPUTY PRESIDENT: Clause 8 relates to the dispute resolution procedure. Should I understand that if a matter was not resolved in the conciliation process, then once again, there would be no industrial action associated with the matter in dispute?

PN26

MR METCALF: Yes, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: Clause 9 sets out the various classification structures. First of all, should I understand then, that in terms of level one, what this means is that the hourly rate for a level one employee is drawn from the Metal Industry SA Award and that casual loadings are applied in addition to that hourly rate?

PN28

MR METCALF: Yes, Senior Deputy President.

PN29

THE SENIOR DEPUTY PRESIDENT: So that in effect the agreement does not establish any benefits over and above those that are set out in the award, in terms of wages?

PN30

MR METCALF: The wages, I have actually got a wages schedule here that I can hand up to you, sir. They are above the award wages, however it is a flat hourly rate that they use up at Roxby.

PN31

THE SENIOR DEPUTY PRESIDENT: I am only looking at clause 9. Clause 9 seems to imply that the agreement establishes minimum rates - - -

PN32

MR METCALF: That is correct, sir - - -

PN33

THE SENIOR DEPUTY PRESIDENT: - - - which are based on the award rates?

PN34

MR METCALF: Yes, Senior Deputy President.

PN35

THE SENIOR DEPUTY PRESIDENT: Do you want me to mark and retain on the Commission's file, this wages schedule that you have provided to me?

PN36

MR METCALF: Yes, Senior Deputy President.

EXHIBIT #S2 RATES APPLICABLE AS AT 21/02/2005

PN37

THE SENIOR DEPUTY PRESIDENT: Should I understand then, that if those award rates that are referenced in clause 9 increase, then the actual rates that are set out in S2, would be increased on a proportionate basis?

PN38

MR METCALF: Excuse me, sir. If I may just clarify, Senor Deputy President, if the rates in the award were to go up above, say the rates specified in S2, then obviously the company would endeavour to pay the rates applicable to the actual award. In terms of say, the safety net adjustment, the company won't increase these rates in line with any safety net adjustment or percentage increase that goes through, if that clarifies that area, sir.

PN39

THE SENIOR DEPUTY PRESIDENT: So that I should understand that if I look, for instance at the C11 rate, which is the level two, those rates remain as is for the duration of the agreement, unless the award rate exceeds that figure?

PN40

MR METCALF: Excuse me, sir. Yes. I have been instructed, Senior Deputy President, that the rates may increase throughout the life of the agreement on top of what S2 states here, but that may be not in respect to when the award wages are increased.

PN41

THE SENIOR DEPUTY PRESIDENT: So let me once again repeat, if I look at level two, the $23 amount that is currently paid, may increase over the life of the agreement, but will increase over the life of the agreement in the event that the award rate exceeds $23?

PN42

MR METCALF: Yes, Senior Deputy President.

PN43

THE SENIOR DEPUTY PRESIDENT: Now, what happens with levels one and four and five?

PN44

MR METCALF: The same as what you have just mentioned there. But they haven't been put onto the wages schedule because they are not applicable at the moment, in terms that there is no employees working at that site.

PN45

THE SENIOR DEPUTY PRESIDENT: So that for the purposes of the no disadvantage test, what you say to me is that I should be looking at levels one, four and five in the context of the existing award rates?

PN46

MR METCALF: That is correct, Senior Deputy President.

PN47

THE SENIOR DEPUTY PRESIDENT: Clause 9 refers to the Metal Industry SA Award. That is a different award title to the Metal Trades SA Award, which is referred to in 5.3 and 5.4. Is it intended to be the same award?

PN48

MR METCALF: It is intended to be the same award, and it is my understanding the actual title is the Metal Industry SA Award.

PN49

THE SENIOR DEPUTY PRESIDENT: The provisions of clause 9.7 leave aside the fact that they invoke the Metal Trades SA Award again. If I take that the reference is intended to be Metal Industry SA Award, should I understand that that clause is calling up the penalty payments, loadings and additions contained in that particular award? Because if that is correct, then I am having a little difficulty reconciling that with the provisions of 5.3 and 5.4. And to make the intention underpinning my question clear, the reasons that I am seeking clarification, or the key reason why I am seeking clarification of this provision is that if I applied 5.3 and 5.4 to the wage rates that are set out in 9.1, then I am not sure that the agreement would meet the requirements of the no disadvantage test. You would need to demonstrate to me how it is that it would do so.

PN50

MR METCALF: Basically, the company is still paying above the award wages anyway. I can give the undertaking that they wouldn't pay in line with the rates that are mentioned in the actual Metal Industry SA Award. They are going to pay above that in terms of those classifications, sir.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, but you see, how should I read 9.7, and for that matter 9.9 in the context of 5.3 and 5.4?

PN52

MR METCALF: I may have to provide a written response to that, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: If you could do that, thank you, Mr Metcalf. And if you could ensure that the written response, if it is to rely upon the rates set out in S2, deals with the application of the no disadvantage test and the potential to employ persons under levels one, four and five of clause 9.1, that would assist me. Finally, if you are to provide something in writing to me, could I ask that you make sure that it has been provided to Mr Flavel first of all, so that the document that I get hopefully, would be an agreed document?

PN54

MR METCALF: Yes, Senior Deputy President.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 10 deals with wages and salary packaging. Notwithstanding that the Full Bench decision in relation to Shafonack, Monash and Murray Bridge Nurses has not been determined, I note that the Full Bench have determined a position relative to a salary sacrificing clause which is not fundamentally dissimilar to this one. They have yet to publish their reasons, so I will not be precluding the agreement from certification on the basis of that particular provision. The provisions of clause 12 talk of a commitment to work patterns. Can you tell me how hours are arranged in terms of those work patterns - I should arranged and paid?

PN56

MR METCALF: Excuse me, sir.

PN57

MR HARTLEY: Sir, if I can address at least a portion of that question.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, you can Mr Hartley.

PN59

MR HARTLEY: Skilled operate across a number of different clients in Roxby Downs and the Olympic Dam area. Each of those clients arranges with site supervisors, set rosters. Mr Flavel might wish to indicate in regard to rosters and so forth, but each independent site operates their own hours on an as needs basis, basically.

PN60

THE SENIOR DEPUTY PRESIDENT: Mr Metcalf, that helps me to some extent. The issue that I am wrestling with here though, is that this clause read in concert with clauses 18 and 19 appears to indicate that employees will work on some form of cycle arrangement and be given time off the site, that is away from Roxby Downs. Now, if I have understood the agreement correctly in that regard, then it raises a question as to first of all, whether they are paid for that time off, given the casual status under the agreement, and what arrangement applies in terms of the possible compression of the ordinary weekly working hours into shorter periods of time so that, for instance, a four week ordinary hours cycle might be worked in a period of time shorter than four weeks. Now, it is that issue that I am grappling with. It is an issue that commonly also raises a question as to payment of overtime and the extent to which employees might be required to work in excess of the ordinary hours of work under the agreement. I note in that regard that clause 5.3 does call up the Metal Industry Award hours of work clause. Can either you or Mr Hartley help me a little more in that regard?

PN61

MR METCALF: Excuse me, sir. I am instructed, Senior Deputy President, that all employees on that site are actually casual employees that work, on average, 10 to 12 hour shifts, sir and in that respect, that flat hourly rate you see in S2 compensates employees for overtime and other areas there.

PN62

THE SENIOR DEPUTY PRESIDENT: I see. Then can I add another task to your list?

PN63

MR METCALF: Yes, sir.

PN64

THE SENIOR DEPUTY PRESIDENT: What I will need then is a comparison based on the maximum number of hours that an employee may be required to work, so that I can look at what they would receive in terms of payments from the employer and on the other side of the page, you will need to show me what they would have been entitled to under the award.

PN65

MR METCALF: Yes, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: Clause 13 relates to annual leave. Clause 14 relates to sick leave. Should I understand those clauses do not have application to any current employee, but they may have application to future employees?

PN67

MR METCALF: Yes, Senior Deputy President.

PN68

THE SENIOR DEPUTY PRESIDENT: Clause 15 relates to parental and bereavement leave. Should I understand that in contrast, that clause would have application to casual employees?

PN69

MR METCALF: Yes, Senior Deputy President.

PN70

THE SENIOR DEPUTY PRESIDENT: Clause 17 deals with accommodation. It references the company's accommodation policy. Should I understand that accommodation policy is documented, that it is readily available to employees and that it may be changed over the life of the agreement?

PN71

MR METCALF: That is the case, Senior Deputy President.

PN72

THE SENIOR DEPUTY PRESIDENT: Clause 20 deals with site requirements. I am aware of the extent to which Western Mining have particular requirements that govern, amongst other things, safety pre-conditions as a condition for working on the Olympic Dam facility. Is it the case that that clause is just referencing those Western Mining Corporation requirements, such that I can be assured that all employees have been put through that induction process, or if that clause has more general application, then is it the case that any specific site requirements are the subject of documentation to all employees as they are issued?

PN73

MR METCALF: I believe it would be any specific site requirements, Senior Deputy President.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Metcalf. Within what period of time do you think you might be able to provide that information to me?

PN75

MR METCALF: By the end of this week, sir.

PN76

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Flavel, my expectation is that Mr Metcalf will provide you with his proposed responses to my questions so that you can either agree or disagree with those responses. Do you have any other questions about the issues that I have raised?

PN77

MR FLAVEL: No, sir.

PN78

THE SENIOR DEPUTY PRESIDENT: Apart from those particular matters, can I understand that you are in agreement with Mr Metcalf's responses to me?

PN79

MR FLAVEL: Yes.

PN80

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Metcalf, on the basis of what I have been told today, if I am able to certify the agreement, having considered the information that you are to provide to me, then I will do so from the date upon which I receive that material. The certificate that will then be issued, would refer to the various clauses that I have sought clarification about. Your responses, however are recorded on the transcript and in the event of receipt of more detailed information, that will be retained on the Commission's file. If I am not able to certify the agreement on the basis of that information, I will consider the basis for that concern and if I consider it appropriate, I will call the parties back in for a further hearing. Otherwise, I will simply set out the problem that I have. Are you happy with that approach, Mr Metcalf?

PN81

MR METCALF: Yes, Senior Deputy President.

PN82

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

<ADJOURNED INDEFINITELY [10.25AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 LETTER TO ALL EMPLOYEES DATED 29/12/2004 PN4
EXHIBIT #S2 RATES APPLICABLE AS AT 21/02/2005 PN36