AG2005/2710, Transcript of Proceedings [2005] AIRCTrans 804 (31 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10965-2

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2710

APPLICATION BY WELDING INDUSTRIES LTD AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/2710)

ADELAIDE

10.18AM, MONDAY, 21 MARCH 2005

PN1

MR D THOMAS: I appear for the AMWU. With me is MR R BROWN, shop steward at WIA Manufacturing.

PN2

MR J HYAMS: I am from Welding Industries.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hyams. I can confirm to the parties that I have read both the statutory declarations and the agreement itself. There are a number of issues that potentially arise relative to this agreement. The first, Mr Thomas is that the agreement appears to have been voted on on the
14th day, after which employees were provided with a copy of it. It seems to me that the information in the statutory declarations indicates that employees received the agreement in its final form on Monday 14 February and voted on 28 February. If that is the case, then there is some question as to whether or not the 14 clear day minimum has been met.

PN4

Now, the reason that I am raising that at this stage, is that sometimes people are able to point out that the agreement in its final form was in fact provided to employees of an earlier date. On other occasions, we have to look at some other way around this problem. It is not necessarily a fatal problem in that it is relatively common for parties to take the same agreement back from this Commission hearing to another vote of employees, because by then the 14 days will have well and truly passed and to advise me that they have convened another meeting, possibly even by way of a simple show of hands, having demonstrated the majority commitment to the agreement.

PN5

Now firstly, is this a case where the agreement was in fact available prior to 28 February?

PN6

MR THOMAS: Yes, Commissioner. From the information I have, the document was first issued on 8 February.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. In its final form?

PN8

MR THOMAS: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: And when you say first issued, you mean made available to employees?

PN10

MR THOMAS: To every employee, yes.

PN11

THE SENIOR DEPUTY PRESIDENT: I see, thank you. That would appear to overcome that problem. Mr Hyams, can you confirm that from the employer's perspective?

PN12

MR HYAMS: Yes, I can.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Thomas, what is the significance 28 February - sorry of 14 February at the response in 6.4 of the statutory declarations?

PN14

MR THOMAS: Yes, I am a bit surprised at that as well. As you know, it was originally the statutory declaration was organised by Andy Plant who unfortunately no longer works for our union. But yes, when I spoke to him on Friday, I was led to believe that everything was in order, so as far as the 14th, I can't explain that, to be honest with you.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thomas. Can I then take the parties to the agreement itself. I need to stress that whilst I have a number of questions and clarification of the parties, none of my questions invite the parties to re-write the document. I would endeavor to identify the foundation for all of the questions and certainly if there is any doubt in your mind as to what ..... question, please feel free to ask me for clarification. Should you Mr Hyams, want to add anything to anything of Mr Thomas' responses, feel free to hop up and do so. Mr Thomas, clause 2 is the parties' bound clause. Should I take it that with particular reference to 2(b), the parties intend that the agreement would be binding on any employee covered by part (1) of that Metal Industry Award?

PN16

MR THOMAS: Yes, that is correct.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3 is the date and period of operation. I am struggling a little bit with this particular provision. Do the parties have a particular date when they say this agreement commences from?

PN18

MR THOMAS: Yes, that was from the date that once consensus was reached, and that date is 18 December.

PN19

THE SENIOR DEPUTY PRESIDENT: The issue here is that the provisions of clause 3 about the two things happening. Firstly, consensus being reached and secondly, the agreement operating then from the first pay period to commence on or after the date of expiration of the previous certified agreement. Now, the previous certified agreement has a nominal expiry date of 12 December 2004. It obviously continues to operate until it is superseded by this new agreement, but what you are saying to me is that in effect, the parties intend then that the agreement come into effect on 18 December 2004, and expire three years from certification or from that date?

PN20

MR THOMAS: From that date.

PN21

THE SENIOR DEPUTY PRESIDENT: It is that expiry one that is causing me the difficulty.

PN22

MR HYAMS: I am a bit confused with the dates here, because I thought - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Hyams, before you go any further, if you are a little confused with the dates, I won't adjourn these proceedings, but can I suggest you might have a quick word with Mr Thomas to see whether the three of you can clarify that confusion. You are on a knife edge in terms of whether or not you have an agreement. I am being asked to read something into the document that I am having some difficulty with, so it is important that you have a collective position on whatever it is that you are putting to me.

PN24

MR HYAMS: Okay.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN26

MR THOMAS: Sorry about that, Commissioner. Upon conversation with my colleagues here, we clearly remember that the commencement date was 11 January rather than the 18 December, as stated.

PN27

THE SENIOR DEPUTY PRESIDENT: How do I read 11 January into clause 3? You see, clause 3 has that pre-condition of consensus being reached, which I take it was some form of approval of the agreement by employees, which you say to me happened - you say to me in the statutory declarations, happened on 28 February, so the first inconsistency that I have here is the employees voted to improve the agreement on 28 February and I am having difficulty reconciling that with 11 January, but more particularly, the agreement operates from the first pay period to commence on or after the date of expiration of the previous certified agreement, and I can't reconcile 11 January with the date of expiration of the previous agreement.

PN28

It might be best if I perhaps move on to the next few issues and leave the parties to ponder on that one. That is the last remaining problem. I am very happy to give you a bit of time to think about that. It becomes particularly significant, as I have said, in terms of the nominal expiry date of the agreement, because section 170LT(10) requires the agreement to have a specific nominal expiry date. There is uncertainty as to the commencement date and a clause such as this creates some doubt as to whether or not the nominal expiry date is in fact specified, but we will move onto the next few questions, because it may mean or some of these questions may require that you take a couple of issues away and ponder upon them.

PN29

Clause 7 is the wages clause. Are the parties able to provide me with a wages schedule showing, if you like, the starting point for wages under this agreement? If you don't have one now, can you provide one on an agreed basis within the next few days?

PN30

MR THOMAS: Yes.

PN31

THE SENIOR DEPUTY PRESIDENT: Good. Should I understand that - well once again, if I look at clause 7(b), the renewal date becomes a significant date. Should I understand that to be one year out from the date of commencement of the agreement, whenever that might be?

PN32

MR THOMAS: Yes, I am pretty sure that is the case, but I will seek advice on that.

PN33

MR HYAMS: Yes, we agree with that.

PN34

THE SENIOR DEPUTY PRESIDENT: So a great deal is being hung around that renewal date or commencement date?

PN35

MR THOMAS: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: The provisions of 7(d) talk about reliance on the consumer price index. Is that the national consumer price index or is it the South Australian - - -

PN37

MR THOMAS: That would be the national CPI.

PN38

THE SENIOR DEPUTY PRESIDENT: I see, so in any one year - let me rephrase that. Do the parties intend to have regard to the CPI for the year prior to that renewal date? If I could put that by way of example. We are now part way through March 2005, do the parties intend to have regard to the CPI figure on an annualized basis for the quarter ending December 2005 and apply that figure in their comparison of the CPI with the year 2 4 per cent increase or do they intend to have regard to a later CPI figure and do you want to talk about the issue?

PN39

MR THOMAS: I think that will probably revolve around the commencement date, because if the commencement date is 12 December, then it will probably relate back to the September quarter - - -

PN40

THE SENIOR DEPUTY PRESIDENT: I see, so it is the previous quarter.

PN41

MR THOMAS: Yes.

PN42

THE SENIOR DEPUTY PRESIDENT: Well, then the follow-up question then, is if the parties are in agreement in that regard, Mr Hyams, if the CPI for the previous quarter on an annualized basis exceeds the amount set out in clause 7(a), then does the higher amount apply from the date of the increase which is proposed in 7(a) or does it apply from the date of the CPI figure? They are not trick questions, it is just that I am allergic to you folks having an argument and coming back here about it. I would then kick myself.

PN43

MR HYAMS: Could you just repeat that for me, so I get that clear?

PN44

THE SENIOR DEPUTY PRESIDENT: 7(d) talks about the effect, the adoption of the national CPI figure for the year ended on the quarter before the nominated wage increase date. In the event of a CPI figure that exceeded the wage increase or exceeded 4 per cent rather than the two years in question, will the parties apply that higher amount in lieu of the 4% from the date upon which the 4 per cent becomes applicable or will they apply the higher amount from the date of that CPI increase?

PN45

MR HYAMS: No, from the date of the renewal date.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you. So it is the date set out in 7(b) that are relevant.

PN47

MR HYAMS: Yes, sir.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 9 deals with sick pay. There is an opting or an option for employees to be paid. Should I understand that that option is available to employees at any time subsequent to the certification of this agreement?

PN49

MR THOMAS: It is already in practice anyway.

PN50

MR HYAMS: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: It is an operating provision, is it?

PN52

MR HYAMS: Yes, regardless of this being certified, if someone was sick, then we would probably honor it, yes.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 10 deals with income protection insurance. I must admit to some confusion in terms of this clause, too. Are there two income protection insurance policies or is it the case that there is only the one?

PN54

MR HYAMS: The one, sir.

PN55

THE SENIOR DEPUTY PRESIDENT: The one. Now that means that the income protection insurance policy funded by the employer is the IUS Scheme?

PN56

MR HYAMS: That is correct.

PN57

THE SENIOR DEPUTY PRESIDENT: And whilst the clause indicates a 14 days waiting period, should I understand that that cover provides for a maximum of 104 weeks pay and further, is it the case that the payment is based on average weekly earnings or is the wage rates set out in this agreement for ordinary time?

PN58

MR HYAMS: I am not sure and I will have to check.

PN59

THE SENIOR DEPUTY PRESIDENT: All right. So the parties could include a response to that question with the material to be forwarded to me, is that the case?

PN60

MR HYAMS: Yes, sir.

PN61

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 13 deals with normal hours of work. If I could take the parties to the second paragraph. Is it the case that all employees work a 19 day month, or are there two groups of employees - one group working a 19 day month and the other working a shorter working day?

PN62

MR HYAMS: It is two groups.

PN63

THE SENIOR DEPUTY PRESIDENT: So there are two groups of employees. Is that a matter of choice for employees or does the application of the 19 day month depend on designated work areas?

PN64

Mr BROWN: It is designated work areas.

PN65

THE SENIOR DEPUTY PRESIDENT: So working on the basis of designated work areas. Thank you. Mr Thomas, can I then take you to clause 20. This is a clause where I have a question that I don't necessarily expect an answer from you now. It might be a matter that you want to go away and have a talk with Ms Smith or some other relevant person within the AMWU. The question that I have here has its genesis ultimately in the recent High Court Electrolux decision, and in that decision, the High Court said that:

PN66

An agreement could only be certified if all of the terms of that agreement pertain to the relationship of this employer and its employees.

PN67

That issue has been the subject on Friday of a Full Commission appeal decision in the matter of Schefenacker. And in Schefenacker, the Commission was dealing with a right of entry provision that said:

PN68

An official or officer of the union shall have the right to enter the employer's establishment with the permission of the employer for the purpose of conducting legitimate union business.

PN69

And the Full Commission found that that clause did not pertain to the employment relationship. Now, the clause at issue here in clause 20 has some substantial similarity with that particular provision. It does however have some extra words, which may mean that the parties wish to argue that it is sufficiently different to the Schefenacker provision, so as to enable certification. It is not a matter that I have as yet turned my mind to. Schefenacker was an appeal against one of my decisions. I haven't yet had cause to turn my mind to this particular agreement provision, other than to note the similarity with the Schefenacker agreement. What I suggest to the parties, unless you have some along extraordinarily well prepared on the matter, that the parties might want to take that particular provision away and ponder upon it. If you want to make a written submission to me, then I am very happy for that to occur. Alternatively, if the parties wish to have a further hearing, then the option exists for you to advise my office of that request. I do need to stress that if the parties wanted to change that particular provision, you will need to change the agreement and provide employees with the requisite notice period. Is that clear enough an explanation of the question?

PN70

MR THOMAS: Yes, Commissioner. I think that rather than argue that today, we will take the second option of providing - - -

PN71

THE SENIOR DEPUTY PRESIDENT: If I was you, I would take the safer course, too.

PN72

MR THOMAS: Thank you.

PN73

THE SENIOR DEPUTY PRESIDENT: You can ponder upon the issue. Mr Hyams, are you happy with that approach too? Take that issue away and think about it?

PN74

MR HYAMS: Yes, sir.

PN75

THE SENIOR DEPUTY PRESIDENT: If I could then take the parties to appendix (a) and to particular reference of clause 5, which is the productivity improvements clause. Should I understand that as part of the agreement on the 5 per cent productivity improvement, the parties have worked out how they are actually going to measure those criteria listed at (a) to (h)?

PN76

MR THOMAS: Part 5 of appendix (a) is a commitment to participate in productivity improvements and there is no linkage between indicators on (a) through to (h). As I said, it is merely a commitment to participate.

PN77

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Thomas, how long do you think you might need to both ponder upon that right of entry provision and provide me with the wages schedule and other material?

PN78

MR THOMAS: Well, I would like to think in the next 48 hours.

PN79

THE SENIOR DEPUTY PRESIDENT: Look, I am happy to give you up to a fortnight. In fact, if you needed longer than that, I am happy to accommodate that, but you would need to arrange that with my office. Mr Hyams, are you happy with that approach?

PN80

MR HYAMS: Yes, sir.

PN81

THE SENIOR DEPUTY PRESIDENT: I clearly expect from the parties, either a written submission or submissions or a request for another hearing, together with the written material relating to wages and income protection insurance. If on the basis of that additional material, I am able to certify the agreement, then I will do so from the date upon which I receive that material. The certificate would then be sent out to the parties and will identify the various clauses about which I sought clarification, but obviously the responses will be recorded in the transcript. If I am not able to certify the agreement, then I will set out the reasons for that, for consideration of the parties. Is there anything further, Mr Thomas?

PN82

MR THOMAS: No, Commissioner.

PN83

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

PN84

MR HYAMS: That is fine. Can I just seek further clarification on what you are after with the income protection insurance, what details?

PN85

THE SENIOR DEPUTY PRESIDENT: It was the issue there relating to what employees are actually paid whilst they are on that insurance arrangement. That is not a question that is likely to prohibit certification in any way. It is simply the case that it is a whole lot easier to have a very clear understanding of those arrangements now. In the instances where there have been disputes over that matter, they are inherently complicated disputes, because the insurer is invariably the one not paying or not paying the amount of money that the employee thought they would be paid. The insurer is not party to the agreement, so that you will find that I am very anxious clarify specifically what arrangements have been reached at this stage, because I am very loath to have a dispute or a situation that could give rise to a dispute over those matters. Does that help you?

PN86

MR HYAMS: Yes, thank you.

PN87

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

<ADJOURNED INDEFINITELY [11.17AM]