C2005/1559, Transcript of Proceedings [2005] AIRCTrans 625 (11 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10731

DEPUTY PRESIDENT HAMPTON*

C2005/1559

s.113 - application to vary an award

APPLICATION BY AMEC ENGINEERING PTY LTD
(C2005/1559)
Electrical Engineering and Contracting Industries (Northern Territory) Award 2002

ADELAIDE

12.02PM, WEDNESDAY, 02 MARCH 2005

PN1

MR I DOUGLAS: I seek leave to appear for Amec Engineering and I also seek leave to intervene for Mayfield Engineering Proprietary Limited. The reason for the intervention application, your Honour, I think is explained in the grounds for the application. Has your Honour, had a look at the application?

PN2

THE DEPUTY PRESIDENT: I have indeed, Mr Douglas. I should indicate firstly that leave is granted to appear. Secondly, in terms of the intervention, I would indicate that I would grant leave to intervene subject to the views of any other parties that might subsequently be involved.

PN3

MR DOUGLAS: Thank you, your Honour. Your Honour, could I initially provide you with an affidavit of service for relative arguments. You will notice on the first page, your Honour, that the CEPU was served by registered post with the application on 24 February. This morning we have been trying to get in touch with Mr Flat, of the union but he has been on his way from Sydney to
Alice Springs, so we haven't had success.

PN4

THE DEPUTY PRESIDENT: Yes. I understand that to be the case.

PN5

MR DOUGLAS: Your Honour, by way of background, this matter has become somewhat much simpler than originally anticipated. That is by reason of the fact that the union some time ago, and this only came to our attention yesterday, filed a general application with respect to this award and, in fact, Senior Deputy President Duncan, dealt with that matter on 11 February and made an order to the effect that he would incorporate in the award, as from the pay period beginning on or after tomorrow, effectively, the model clause from the termination of redundancy test case.

PN6

THE DEPUTY PRESIDENT: Yes.

PN7

MR DOUGLAS: I provide your Honour, with a copy of the transcript in that matter and a copy of the application that the union filed.

PN8

THE DEPUTY PRESIDENT: Thank you. Good.

PN9

MR DOUGLAS: You will notice that the application was consented to by the Chamber of Commerce of Northern Territory and that Mr Flat actually appeared for the union in the matter. There were two matters before his Honour, on that occasion, one was this termination and redundancy issue and secondly, was the safety net adjustment increases. If you go to page three, paragraph number 14, it will be seen there why his Honour determined to make the order as from tomorrow, the paid period beginning on or after tomorrow. And that arose by reason of the requirements of the safety net review proceedings so that - and because both matters were linked together that is the way it came about. There is a typo in that transcript in paragraph number 18, 3 May 2005, is referred to, in fact that should be - - -

PN10

THE DEPUTY PRESIDENT: Yes. I think that is a reasonable inference.

PN11

MR DOUGLAS: Yes. Now, your Honour, the substance of the application that we filed is in virtually all respects identical to the application that was filed by the union in a general way.

PN12

THE DEPUTY PRESIDENT: Yes, the only difference being the date of effect, I take it.

PN13

MR DOUGLAS: Date of effect. Your Honour, could I just give you this by way of background. Amec, for a considerable period of time, has been conducting a business which, in part, is involved within construction activities and in part in non-destructive testing. It has operated that business part under two divisions, its construction division and its technical services division. Now, your Honour, on 23 February, the day before the application was filed, Mayfield Engineering Proprietary Limited, which is a newly created and wholly owned subsidiary of Leighton's Contractors, entered into a contract with Amec Engineering for the purchase of the Amec business part that I have just referred to, that is to say the business part made up by the construction division and a technical services division.

PN14

And that contract, your Honour, is scheduled to be completed at 3.30 this afternoon. Now, as part of the contract, an obligation was place on Mayfield, an obligation which is more than happy to comply with, to make employment offers to all Amec employees who are employed in those two divisions, other than a small group of wages employees at Telfa in Western Australia. And the basis of those employment offers would be that the terms and conditions must be substantially similar and no less favourable conducted on an overall basis, than the terms and conditions applicable to the employees at the time of ceasing their employment with Amec. And secondly, that the offers must recognise the period of continuous service which each employee had with Amec and with any prior transmitter to be continuous service of the employee with Mayfield. Now, those words are taken directly from the transmission of business clause in the new standard.

PN15

THE DEPUTY PRESIDENT: Yes. I recognise them.

PN16

MR DOUGLAS: Yes. Now, offers have gone out to the employees. In fact, offers have gone to 230 employees in the construction division and 171 employees in the technical services division in accordance with that obligation. Maybe it would assist if I just place on the record the employee numbers generally. There is a total of 241 employees in the construction division, broken up between 174 weekly engaged employees who are largely covered by either federal award and/or agreement or state award, mostly federally covered. And some 67 award free persons who are in categories of professional employees, supervisors and management. In the other division, the technical services division, your Honour, there are 139 wages employees who have similar award coverage and agreement coverage is the first group, and 43 award free employees, again in the professional, supervisory and managerial area.

PN17

Now, your Honour, in the Northern Territory there are no employees in the technical services division employed in the Northern Territory. In the construction division, at the moment there are 12 weekly employees and four staff employees employed at Gove, that is the Nabalco establishment. One of those employees, one of the weekly employees is a clerical employee. There are 12 weekly employees at Pine Gap and one award free employee and seven weekly employees at Darwin, I am instructed one of those employees is a clerical employee. And the only reason why I am mentioning clerical employees, your Honour, is the fact that the relevant common rule Clerk's Award operating in Northern Territory, has been varied to include the new standard.

PN18

THE DEPUTY PRESIDENT: I see.

PN19

MR DOUGLAS: By and large, your Honour, and I could go into detail but I think it's unnecessary at this time, by and large, the employees that are covered by federal award and/or agreement by reason of combination of the relevant agreements and the federal award, particularly the Metal Industry Award which has been varied to include the new standard. Effectively, the new standard covers most of the employees. The exception to that is wages employees in Western Australia, but there has recently been an application made to the Western Australian Industrial Commission by the Trades and Labour Council in that State, for it to make a general order with respect to the Federal Commission's termination and redundancy test case. So that the Western Australian union movement is seeking to have the standard inserted in all Western Australian awards.

PN20

So this application, your Honour, in a sense was designed to bring up to date the only area that is relevantly not covered by the current standard. I should say that in relation to the award free people, company policy is inconsistent with the Commission's standard, and that was given effect to last year. Now, your Honour, I have had prepared a simplified draft order.

PN21

THE DEPUTY PRESIDENT: Thank you.

PN22

MR DOUGLAS: Can I say that yesterday afternoon, when I became aware of the application had been made before Senior Deputy President Duncan, that I rang his Honour and informed his Honour, of this proceeding today, and asked him whether if your Honour came to a conclusion that you couldn't deal with this matter, particularly by reason of the fact that the union is not present, that would he be prepared to deal with the application if you referred it to him. And he said, yes, that he would and that he would deal with it as a matter of some urgency. Now, your Honour, what I am - - -

PN23

THE DEPUTY PRESIDENT: And, indeed, I should indicate that the Senior Deputy President contacted me in the immediate lead up to this hearing and advised me of that contact, and he generally confirmed the status of the substantive award variation along the lines that you have confirmed this afternoon.

PN24

MR DOUGLAS: Thank you, your Honour, well there are two ways the matter can be approached. Either your Honour decides to make an order in the form that I have put forward or, alternatively, your Honour takes a step to refer this matter, this application to his Honour, Senior Deputy President Duncan for him to deal with. Probably that would not occur until Monday because I understand that Mr Flat is absent from New South Wales until Monday.

PN25

THE DEPUTY PRESIDENT: Yes. I understand that to be the case.

PN26

MR DOUGLAS: And if - either way, your Honour, we would be happy but it just seems to me that in one sense, because of the way in which this matter has proceeded on the union's application before his Honour and what occurred there and what you can see on the record, that the easiest and cheapest way, and probably the most efficient way would be for your Honour, to make an order today in that form.

PN27

THE DEPUTY PRESIDENT: Yes. Look, I think, Mr Douglas, with respect, I agree that that, in some ways, would be easier but there are two difficulties with that. One is, as you have already alluded to, the union is not present and I think in the circumstances, I am required to afford them an opportunity to be heard. And I think you will appreciate the matter was listed at short notice for good reason.

PN28

MR DOUGLAS: Yes, your Honour.

PN29

THE DEPUTY PRESIDENT: But one of the casualties of that has been the lack of normal notice given to the union. So in that context, I would be reluctant to deal with the matter to its conclusion today, and that is the understanding I have given on a tentative basis to both parties and secondly, there is a slight difficulty in the sense that I am varying an order which isn't yet made. And I think on that basis, on those two grounds the preferable course of action would be for the file to be referred to SDP Duncan.

PN30

MR DOUGLAS: I accept that, your Honour. Could I say that we are proceeding out of caution here. Because the contract will be completed today, then in terms of section 149(1)(d) of the Act, there will be a transmission of business this afternoon. There are two things I could say in relation to that but I will just direct your Honour's attention to, for instance, the draft order that was before Senior Deputy President Duncan, to the fourth page where the clause 12.7 is set out, Transmission of Business.

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR DOUGLAS: If I can take you back one step, your Honour, to the first page in definitions, 12.1.1, the Definition of Business. The definition of business there includes occupation, so you can have a transmission of business that activates this clause and the same position existed with the old transmission of business clause under the TCR standard where there was simply a movement of employees from employer A to employer B, without any business as such, in a commercial sense, moving and that would activate the clause. And secondly, your Honour, the words in 12.7.1, the opening words are relevant in this respect. They read:

PN33

The provisions of this clause are not applicable -

PN34

And that is the severance pay provisions where a business is before or after the date of this award transmitted. So in one sense it could be argued that the provision itself has a retrospective operation and the history of that clause goes back to a case which I was involved in, began in 1964, your Honour, which resulted in the Commission's long service leave test case in the early 1970's. And those words in this transmission of business clause found their way into the Commission's long service leave standard and they were adopted from what was then the Victorian Long Service Leave Act.

PN35

So that those words have stood the test of time, in fact, they have been existence in Commission awards for over 30 years and one would argue that on their face, they are clear. But, nevertheless, for reasons of abundant caution, your Honour, we would wish to have the order operate as from today, as far as Amec is concerned.

PN36

THE DEPUTY PRESIDENT: Yes. I take it that it is at least arguable that if the obligation crystallises today and the award isn't effective today, and it is at least arguable that the old provisions or the current provisions would apply.

PN37

MR DOUGLAS: That's right. Yes, your Honour. And that is an unnecessary complication, particularly in the circumstances where you have got 500 odd or so employees and all but a handful are covered by the new standard, one way or the other.

PN38

THE DEPUTY PRESIDENT: I understand. Yes.

PN39

MR DOUGLAS: Thank you, your Honour. Well, if you could refer the matter to Senior Deputy President Duncan, we will take steps to ask him to set a date and if Mr Flat is not available this week, and that would appear to be so, then I would be suggesting there be a hearing in Sydney on Monday.

PN40

THE DEPUTY PRESIDENT: Very well. Thank you, Mr Douglas. That is the course of action I propose to follow. I will refer this matter to the Senior Deputy President, on the understanding that he is already aware of the circumstances and is prepared to deal with the matter expeditiously. Secondly, I should also note for the record that this hearing has been established with a video link to the Northern Territory and no-one has sought to appear. And I put that on the record because, of course, this is a common rule award in the Territory. I also note, as you have confirmed, Mr Flat's inability to participate in these proceedings and I have already indicated my view that it is appropriate the union be afforded a reasonable opportunity. It does appear that that opportunity will avail itself on Monday and I will also communicate that to the Senior Deputy President.

PN41

Perhaps I should also indicate that whilst it will be entirely a matter for that member, I do note the circumstances applicable here and in that context, it is my view that the application has considerable merit and in terms of the operative date, to the extent to which that could represent retrospectivity there are particular circumstances here which might well attract that outcome. So I will adjourn the matter on that basis and have the file referred.

PN42

MR DOUGLAS: Yes. I take it Senior Deputy President Duncan will get a copy of today's transcript.

PN43

THE DEPUTY PRESIDENT: I will make that arrangement, together with the material that has been filed which will be placed on the file.

PN44

MR DOUGLAS: Thank you.

PN45

THE DEPUTY PRESIDENT: Good.

<ADJOURNED INDEFINITELY [12.20PM]