AG2005/3340, Transcript of Proceedings [2005] AIRCTrans 812 (1 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11006-1

SENIOR DEPUTY PRESIDENT ACTON

AG2005/3340 AG2005/3083

APPLICATION BY BLUESCOPE STEEL LIMITED & THE AUSTRALIAN WORKERS' UNION - VICTORIA BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3340)

APPLICATION BY THE AUSTRALIAN WORKERS' UNION - VICTORIA BRANCH AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3083)

MELBOURNE

8.46AM, WEDNESDAY, 23 MARCH 2005

PN1

MR G WATSON: I seek leave to appear for BlueScope Steel Limited with me is
MR G PARMENTER.

PN2

MS E WALTERS: I appear for the Australian Workers' Union.

PN3

MR G BORENSTEIN: If your Honour pleases I seek leave to intervene on behalf of the CEPU and in respect of an individual bound by the agreement,
Mark Farrall. In respect of the application for leave to intervene by the CEPU, it's based on the fact that we are mentioned in the EBA, and it does in clause 3.2 - and we would just like to make comments regarding that for clarity, which we think would be best done on a transcript and also we wish to make some further comments on behalf of Mark Farrall as well.

PN4

THE SENIOR DEPUTY PRESIDENT: So you seek to intervene for both
Mr Farrall and the CEPU?

PN5

MR BORENSTEIN: That's correct.

PN6

THE SENIOR DEPUTY PRESIDENT: In respect of the CEPU do they intend to become bound by the agreement?

PN7

MR BORENSTEIN: No, I suppose I wanted to make it clear that the CEPU does not wish to be bound by the agreement.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there any objection for the application for leave to intervene on behalf of Mr Farrall and/or the CEPU?

PN9

MR WATSON: Your honour, we say that the CEPU is not capable of being granted leave to intervene under section 43 as it isn't a party to the agreement. The nature of the proceedings clearly is an application for certification of the agreement under division 2. That's essentially the question to be asked - what is the nature of the proceedings - and section 43(2) governs the situation because that is the nature of these proceedings. We say that there would not be a case in any event but to make a clarifying statement but we take it from what my learned friend has said anyway that there is clarification that the CEPU is not a party and does not wish to be bound, but there is no basis in any event for an application going to the validity of the application, to make such a statement. Therefore there's no basis to grant leave to intervene. We also submit that there's been no case made out for an employee to be granted leave to intervene either. We oppose them on that basis.

PN10

THE SENIOR DEPUTY PRESIDENT: Could I just for ease of processing, there's two matters listed today, an application by the AWU and an application by BlueScope Steel Limited. Does the AWU press its original application?

PN11

MS WALTERS: No, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: We'll just proceed then with the AG2005/3340, which is the application by BlueScope Steel which was filed on
22 March 2005.

PN13

MR WATSON: That's all we wish to say about intervention.

PN14

THE SENIOR DEPUTY PRESIDENT: Ms Walters, is there anything you wish to say?

PN15

MS WALTERS: No, your Honour, save for there is no objection to the application to intervene by the CEPU and Mark Farrall.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Borenstein.

PN17

MR BORENSTEIN: Your Honour, in respect of the employee, Mr Mark Farrall, it is clear at the previous authorities that employees are only bound by the agreement - have a direct interest in that EBA and have been given a right to intervene in such matters. I think as your Honour did in the previous application by that AWU certification, you allowed the individual to intervene in that one, but does your Honour want me to go to authority per individuals intervening?

PN18

THE SENIOR DEPUTY PRESIDENT: Have you got authority there?

PN19

MR BORENSTEIN: I do. I can make it clear that I'm not seeking to object to the certification and I don't if that alleviates my friend's concerns.

PN20

THE SENIOR DEPUTY PRESIDENT: Perhaps you can indicate to us what the purpose of Mr Farrall's intervention is - you said he wants to say something - what does he want to say?

PN21

MR BORENSTEIN: On behalf of Mr Farrall, what we want to say is to put the Commission on notice that there is a 170MX set down for hearing and that I'm instructed that our members, including Mr Farrall, did not participate in the vote for this certification on the basis that the 170MX hearing is proceeding and that that MX determination will override any EBA that is certified before the Commission today. We put it on the record that we don't think it right that BlueScope enter into a certified agreement that covers employees who would be subject to 170MX arbitration, but in any event the MX arbitration will override this EBA to the extent of its scope and on that basis we intend to go down the MX arbitration route and see that as necessary proceeding and our members have relied on that in their conduct towards this certification. That's all I wish to put.

PN22

THE SENIOR DEPUTY PRESIDENT: What about the CEPU?

PN23

MR BORENSTEIN: The CEPU makes the same submission but that's all the submissions we wish to put. If Mr Watson wants to continue his objections- - -

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Watson?

PN25

MR WATSON: Your Honour, rather than delay the matters we content for my learned friend having said what he wished to say for that to be part of the record but we would wish to make a comment in response, briefly, that we would not oppose the matter proceeding on the basis that my friend has put what he wishes to put and clarify that matter but we don't wish the proceedings to be delayed any further by further argument about this or any other complication. We note that that's all he wishes to say in the proceedings.

PN26

THE SENIOR DEPUTY PRESIDENT: Mr Borenstein, I'll grant leave to
Mr Farrall - you to represent Mr Farrall.

PN27

MR BORENSTEIN: Thank you, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Watson?

PN29

MR WATSON: Thank you, your Honour, this is an application for certification of an agreement made under Division 2 of Part VIB. We filed a copy of the agreement that has been made between BlueScope Steel Limited and the Australian Workers' Union together with a statutory declaration by
Gary Parmenter. I understand Ms Walters has a statutory declaration to file today in relation to the AWU and we believe that it's in similar terms, but perhaps if I can, if that could be dealt with now.

PN30

MS WALTERS: Your Honour, we would seek leave.....to file that.

PN31

THE SENIOR DEPUTY PRESIDENT: Statutory declaration of Mr Eagles, president of the AWU, Victorian Branch, will become part of the file. Yes?

PN32

MR WATSON: Your Honour, there is considerable history to these negotiations in the making of the agreement and that is set out in attachment A to the statutory declaration of Mr Parmenter. It discloses that there have been exhaustive negotiations as well as communications with employees and numerous meetings which have resulted in the final of the document and its adoption for approval by meetings of employees affected by the agreement.

PN33

Initially there was an agreement in principle reached in November 2004. There was an approval process in December 2004, but arising from further discussions and proceedings in this Commission changes were made to the agreement and a further approval process was instituted early this month, which resulted in the overwhelming approval of employees bound by the agreement.

PN34

The tests for certification are dealt with in the statutory declaration and unless there are specific questions, I do not propose to go through all of those, but the statutory declaration does set out details of the matter such as satisfy the requirements of the Act and both in terms of the validity of the application being made under the terms of the Act and also the requirements for certification under section 170LT and other sections of the Act.

PN35

During the processes which have led to the final agreement there have also been some understandings reached by the parties as to the application of particular provisions and the parties have specifically addressed these matters and reached a common understanding and have a clear understanding as to the effect of those provisions should there be any dispute about those matters in the future and, in accordance with Act, there are procedures for resolving disputes over the application of the agreement in any event.

PN36

Your Honour, can I also say in relation what was said by my learned friend,
Mr Borenstein that the company does not by its silence accept what has been said. It is not aware of that particular representation and simply reserves its position in relation to that. It does not wish to be taken as accepting the legal argument that was put in relation to that matter and the effect of the agreement. The parties are prepared to have further discussions directly with Mr Farrall or whoever about those matters should the need arise.

PN37

Your Honour, is there anything further in relation to the requirements of the Act that you wish me to directly address specifically.

PN38

THE SENIOR DEPUTY PRESIDENT: I have got some questions about the agreement. Clause 5 on page 5, the normal expiry date of the agreement is
1 November 2007, is that right?

PN39

MR WATSON: That's correct, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: There is a provision about a proposed wage adjustment on and from 1 November 2007. Is that intended to extend the nominal expiry date?

PN41

MR WATSON: Your Honour, the nominal expiry date is 1 November 2007 and that remains the date and as far as the agreement is concerned that is the expiry date. The agreement does however provide for a mechanism to finalise a further increase, but the expiry date is 1 November 2007.

PN42

THE SENIOR DEPUTY PRESIDENT: So from 1 November 2007, the parties can take protected industrial action?

PN43

MR WATSON: Should the Act remain unaltered, your Honour, that would appear to be the case.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. In terms of the increase to apply on and from 1 November 2007, there is a mechanism for working that out, but the clause indicates that if the payout claim is not resolved by 1 October 2007, the dispute resolution procedure will be used. Does that extend to the Commission under the dispute resolution procedure determining the quantum of the increase?

PN45

MR WATSON: Yes, it does, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: Throughout the document there is a reference to unions. To the extent the CEPU does not choose to be bound by the agreement, I should take that to be a reference to the AWU, should I?

PN47

MR WATSON: Correct, your Honour. Your Honour, clause 10 at page 6 mentions a short term incentive scheme. In fact that is something that is known on site and understood by the parties, but we do have some further material on that if the Commission would be assisted by that.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN49

MR WATSON: Perhaps I could hand the Commission a document headed Intent of the Short Term Incentive Scheme.

EXHIBIT #W1 DOCUMENT ON SHORT TERM INCENTIVE SCHEME

PN50

THE SENIOR DEPUTY PRESIDENT: Is there anything you want to say on that, Mr Watson?

PN51

MR WATSON: No. It does provide further details as to the applications in the form of a presentation. There have been other details discussed and other understandings, but I guess it just fleshes out details of that scheme that is referred to in clause 10.

PN52

THE SENIOR DEPUTY PRESIDENT: In respect of clause 9 of the
agreement- - -

PN53

MR WATSON: Part A, your Honour?

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR WATSON: Part B.

PN56

THE SENIOR DEPUTY PRESIDENT: Remuneration arrangements:

PN57

This can be a review of current classification levels under a remuneration structure and if there is agreement, those changes will be effective from the date they are actually implemented. There will be a working party and there are proposed dates set down. In the event that there is no agreement the matter will be handled by a dispute resolution procedure.

PN58

Does that envisage or provide for the Commission to ultimately determine the current classification levels and remuneration structure?

PN59

MR WATSON: Yes, it does, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN61

MR WATSON: That is the position generally in relation to disputes as to the application of the agreement under the dispute resolution procedure. It is a detailed procedure and there is a flow chart also attached and there are processes where there can be mediation and conciliation, but the parties reserve their rights not to accept the outcomes of that process and the matter can be referred to the Commission for determination.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, and in clause 1.5.2 on page 9 there is a procedure there about a review mechanism and 1.5.2 talks about:

PN63

If the matter remains unresolved the relevant union reserves its right to make further representations to management or ...(reads)... against an employee is unfair.

PN64

What is the Commission's role to be?

PN65

MR WATSON: The Commission's role under that provision, your Honour, is conciliation. There is no provision for determination in relation that matter. However, if there is a termination of employment then the unfair dismissal provisions would provide a remedy for the employees in those cases.

PN66

THE SENIOR DEPUTY PRESIDENT: Similarly on page 10, 3.1.4 this is about safety at pitman and clothing - sorry, about consultation:

PN67

The agreement records acknowledge of all parties that consultation is undertaken to enable management ...(reads)... through dispute resolution procedure.

PN68

As a consequence of that is it that the Commission would then determine the matter?

PN69

MR WATSON: Yes, it does, your Honour. It merely channels those matters into a dispute resolute procedure which does have the - the parties have sought to provide for determination by the Commission in the absence of agreement.

PN70

THE SENIOR DEPUTY PRESIDENT: Clause 4.1 on page 11. It is a dispute resolution procedure. It talks about if a dispute arises out the interpretations of this agreement. Is that intended to pick up the provisions of the Act under section 170LW about application of the agreement?

PN71

MR WATSON: Yes, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Under 4.1.4, which is:

PN73

The parties reserving the right not to accept the recommendations/decision and proceed to the Commission for determination.

PN74

Is that a reservation that is applicable to either party? So if one party does not want to accept they can proceed to the Commission?

PN75

MR WATSON: That is correct, your Honour. I should also say that this final agreement is the result of discussions between the parties where certain other provisions were changed from previous drafts to ensure that there was no barrier to certification because of Electrolux issues. There have been some agreed changes arising from that process.

PN76

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Watson. Ms Walters?

PN77

MS WALTERS: Your Honour, the Australian Workers' Union will adopt the submissions of Mr Watson in relation to certification save for his comments in relation to the application to intervene by Mr Borenstein on behalf the CEPU and Mark Farrall.

PN78

In relation to the questions that have been posed to Mr Watson by your Honour, I would indicate that we have the same responses to those questions.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Borenstein?

PN80

MR BORENSTEIN: No, nothing further to add.

PN81

THE SENIOR DEPUTY PRESIDENT: Anything else, Mr Watson?

PN82

MR WATSON: No, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: Having regard to the material contained on the file in this matter and the submissions made to me, I am satisfied I should certify the agreement known as the BlueScope Steel Western Port Certified Agreement 2004/2007. I am satisfied that to do so would be consistent with the requirements of the Act, regulations and the relevant rules. To the extent there has been non-compliance with the rules, I waive such compliance.

PN84

The certification of the agreement will come into force from today's date and will remain in force until 1 November 2007. I will now adjourn.

<ADJOURNED INDEFINITELY [9.18AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 DOCUMENT ON SHORT TERM INCENTIVE SCHEME PN49