AG2005/3282, Transcript of Proceedings [2005] AIRCTrans 879 (8 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11073-1

COMMISSIONER DANGERFIELD*

AG2005/3282

APPLICATION BY TRANSPORT WORKERS' UNION OF AUSTRALIA
-VICTORIAN/TASMANIAN BRANCH AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3282)

ADELAIDE

10.04AM, THURSDAY, 31 MARCH 2005

PN1

MR J LOADER: I appear on behalf of the Transport Workers' Union of Australia.

PN2

MS D DAVIS: I appear from Kerry Logistics Australia.

PN3

THE COMMISSIONER: Thank you. Mr Loader, do you want to speak to this?

PN4

MR LOADER: Thank you, Commissioner. Today, before the Commission, is an agreement that is signed by Mr Ian Trimboli for the company, Mr John Allen the Federal Secretary of the Australian Transport Workers' Union, Mr Alex Gallagher the South Australian, Northern Territory Grants Secretary of the Transport Workers' Union. It has been lodged with the Commission under division 2, section 170LJ of the Australian Workplace Relations Act 1996. Transport Workers' Union is the organisation which is entitled to represent the interests of the employees covered by this agreement.

PN5

The Transport Workers' Award 1998 is the award which underpins the agreement. The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declarations signed by Mr John Allen for the union and Mr Ian Trimboli for the company. The agreement does not in relation to its terms and conditions of employment, disadvantage the employees who are covered by the agreement. The agreement at clause 3.2 includes procedures for preventing and settling disputes between the two parties and in particular allows for referral to the Australian Industrial Relations Commission for settlement at clause 3.2.1.4 and 3.2.1.5.

PN6

The agreement provides for consultation with employees in relation to any changes that may affect those employees at clause 3.1. The agreement applies only to part of a single business. Employees covered by the agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote was taken on 15 February 2005, at which a majority voted in favour of this agreement. The result of the vote was that seven voted in favour of the agreement. There were no employees that voted against the agreement and there was one employee who was absent at that meeting.

PN7

The total number of employees covered by the agreement is eight and in respect to section 170LT(7) of the Act, there are no relevant employees to be considered. That is to say that all employees are full time and then pursuant to part 6B division 4, section 170LT of the Act, we seek that the Commission to certify the agreement as referred to as the Kerry Intermodal Services Operations Employees Enterprise Agreement 2005 operative from today's date and expiring on 30 January 2007. If the Commission pleases.

PN8

THE COMMISSIONER: Yes. Thanks. Mr Loader, before you finish, I will just note, I think this agreement was, it was made on 15 February. That is when the vote was, 21 days from there, should have been filed by the 8 March. It was actually filed on 9 March which, you know, probably squeeze out by, well, 24 hours or so. I just take it that, well just, I mean the reason for that was, what?

PN9

MR LOADER: That would be transportation of the agreement between the states for signatures and statutory declarations to be made and signatures of those to satisfy the provisions of the - - -

PN10

THE COMMISSIONER: And look, as long as there is a reasonable reason and I know dealing with some of these TWU agreements that there are some delays from time to time and this is the slimmest of slim delays of course and I am quite happy to grant an extension of time. I mean it is not as though in that period of 24 hours, I presume, it is not as though we had a whole influx of new employees or whatever covered by the agreement.

PN11

MR LOADER: No. In fact I don't believe we have had any new employees from that date but - - -

PN12

THE COMMISSIONER: To the present date. I will ask Ms Davis in a moment. Yes. All right, thanks for that. Ms Davis, just on that point, I take it that there is still only eight employees to be covered by this agreement?

PN13

MS DAVIS: Yes, there is eight. We have had one leave and one new starter.

PN14

THE COMMISSIONER: Okay. So, yes well just in regard to that extension of time, I don't think there is an issue there. Is there anything you want to add in support of this agreement, Ms Davis?

PN15

MS DAVIS: No. Thank you.

PN16

THE COMMISSIONER: Okay, thanks. Can I just raise a couple of things with the parties. They are not as I sometimes describe, they are not show stoppers but I will raise these just for the record. In regard to the statutory declarations, they are both okay. I just point out though that in regard to 7.7.2 where the question is, does the clause specify, this is the disputes procedures clause, does it empower the Commission to settle disputes over the application of the agreement? The answer is yes and that is correct.

PN17

And the second one says, does it empower the Commission to appoint a board of reference as described in section 131 and both parties have ticked yes. It actually doesn't as I read it. Clause 3.2 of the agreement does not technically empower the Commission to appoint a board of reference as described in section 131. Not that it has to of course, the agreement doesn't have to prescribe that at all. The clause as I read it in clause 3.2, the disputes clause, just stipulates that the Commission may conciliate or ultimately arbitrate a relevant industrial dispute. It is an academic point really but I just point it out for what it is worth.

PN18

Apart from that the statutory declarations are fine. In regard to the agreement itself, just a couple of things that I just want to bring to your attention. I don't know if you have got the agreement there but clause 2.3 deals with casual employees and clause 2.3.2 says a casual employee while working ordinary hours should be paid on an hourly basis 138 for the appropriate weekly wage plus a casual loading as per the award provision. I understand all that. That is fine, 2.3.3 says, in additional overtime rates.

PN19

So I am not quite sure what that is meant to mean but it goes on, a casual employee while working overtime or outside the spread of hours, shall be paid a casual loading of 10 per cent in lieu of the per cent prescribed in sub clause 2.3.2. Now, what does that mean? I mean, I tell you what, it looks like to me on the surface, on the surface it looks like, clause 2.3.2 says casual employees get the casual loading as per the award provision so you get a 20 per cent loading, that is a normal standard thing. But, if you happen to be working overtime or outside the spread of hours, guess what, you get 10 per cent in lieu of the 20 per cent. That is what it looks like to me.

PN20

MR LOADER: Commissioner, that does mean that. But what it doesn't state there is that you would get time and a half or the double time loading for the overtime that you worked, so it doesn't state that there. And perhaps that clause would be better off not to be there because the award provides for that provision.

PN21

THE COMMISSIONER: Fine. Okay, that is fine. Clause 4.1, attendance incentive. Now these incentives, they are obviously, I think they are paid there on 1 October, is it, each year? It says there somewhere?

PN22

MR LOADER: Yes.

PN23

THE COMMISSIONER: Four point one point three. Incentive is payable in the first full pay period of October and it will be a stand alone payment. Now, I take it clearly from the context of it there, that that is an annual payment. I mean, if you don't have any days off then you get a week's pay and you get that paid in the first full pay period of October. There is nowhere does it actually say in that sub clause that it is a once off annual payment. I don't think it actually says that. It is an annual payment. I guess it is implied anyway by the fact that it is paid in that first full pay period of October. But I just want to confirm. I mean, that is an annual payment, a once off annual payment each year that, if you don't have any sick days for three years well that is three weeks pay you get on the first pay period in October of each of those years. That is what we are talking about?

PN24

MS DAVIS: Yes.

PN25

THE COMMISSIONER: And just, the other two things which are fine but I will raise them. I have had a close look and Mr Loader, you would be particularly interested in this. In a close look at clauses 3.9 and 3.10 in terms of the, what I will call colloquially the Electrolux type issues that we have to deal with in the Commission. That is whether or not these clauses 3.9 labour agencies, 3.10 union recognition and union membership, whether they properly :

PN26

Pertain to the relations of employers and employees.

PN27

For the purposes of section 170LI of the Act. Ms Davis, you may or may not be aware but since a High Court decision in about September of last year, we have had to have a close look at agreements in this regard. In regard to clause 3.9, that is fine as far as I am concerned. I don't have any issue with that. That merely says that any employees of a labour hire agency will be paid the same rate of pay as a direct employee of Kerry Intermodal Services. That is fine. In regard to 3.10, I note that 3.10.4, the TWU can interview any employee and inspect any employee's wage records.

PN28

I note 3.10.2, talks about the TWU representative entitled to enter the company's premises at all reasonable times for the purposes of interviewing any employee and that is not qualified in any way. They can interview any employee, it doesn't say about what. I would have preferred it if clause 3.10.2 was qualified like, something along the lines, interviewing any employee on matters pertaining to this agreement or something similar to that. It is not a show stopper but I probably would have preferred that. It might be safer for you in future to qualify it in some way like that.

PN29

But look, I have carefully considered the provision and I believe and I would refer the parties and particularly Mr Loader the union, I would refer you to the decision, Full Bench decision of this Commission handed down earlier this month,
18 March. It is the decision involving the city of Murray Bridge Nursing Employees Enterprise Agreement 2004 and the Schefenacker Vision Systems Australia Pty Ltd certified agreement 2004 and that is in print pr 956575 and I particularly draw your attention there to the discussion that the Full Bench had from paragraph 119 through to paragraph 124.

PN30

There is a considerable discussion there about right of entry provisions in agreements and the discussion ranges over a number of High Court cases going back over the last hundred years and so on. It is well worth, I think, having a close read of those paragraphs, 119 to 124, and it does seem from that decision of the Full Bench which is the latest pronouncement of the Full Bench on these Electrolux type issues in the Commission. It seems that this whole area of right of entry is still a bit of a vexed area.

PN31

It is not a simple area to negotiate. But look, having regard to the Full Bench's comments in that decision, I am satisfied that the provision as it stands in clause 3.10 is acceptable in terms of section 170LI but as I say, I would strongly recommend that in some of the agreements you are putting up, you have a good look at that decision to see whether it complies. So I hope, Ms Davis, that is not all double-dutch to you.

PN32

MS DAVIS: No.

PN33

THE COMMISSIONER: But I think in terms of your future agreements, it is most important you see that the Commission can be satisfied that the agreement in every respect, in every line basically, pertains to the relations of the employer and the employees in their capacities as such. And of course when we are provision dealing with labour hire companies and labour hire employees, right, that raises an issue. And also when we are dealing with the union's right of entry. I mean the question is, does this relate to the company and its employees or does it relate to the company and the union?

PN34

We have got to be careful to make sure we have got the right relations. So that is why I raise those points. But if there is nothing further from the parties can I indicate then for the record that this is an agreement or an application under division 2 of part 6B of the Act for certification of an agreement pursuant to section 170LJ. The application is supported by statutory declarations of
Ian Trimboli, State Manager, Kerry Logistics Australia Pty Ltd, the employer in this matter and John Allan, Federal Secretary of the Transport Workers' Union of Australia.

PN35

Those declarations are in order. I note that the agreement was lodged one day out of time. Having regard however to Mr Loader's explanations this morning I grant an extension of time pursuant to section 111(1)R of the Act. Having heard from the parties today in relation to this application to have the agreement certified under division 2 of part 6B of the Act, I note firstly that the Transport Workers' Award 1998 is a relevant award for the purposes of the no disadvantage test and having compared the provisions of the agreement with those of the award I am satisfied that the no disadvantage test has been passed.

PN36

I am also satisfied that the agreement in every respect pertains to the relations of the employer and the employees in their respective capacities as such as required by section 170LI of the Act. The agreement at clause 3.2 includes procedures for preventing and settling disputes between the parties as required. The Commission is also satisfied on the material before it that a valid majority of persons employed at the time genuinely approved the agreement and that in accordance with the provisions of the Act the explanation of the terms of the agreement took place in ways that were appropriate.

PN37

Accordingly the Commission certifies the Kerry Intermodal Services Operations Employees Enterprise Agreement 2005 to be operative from today's date,
31 March 2005 and in accordance with clause 1.3 of the agreement, it will remain in force until 30 January 2007, being a date not more than three years after the date on which the agreement will come into operation. The necessary documentation confirming certification will be issued to the parties over the next week or so. And unless there is anything further from either party for the record? Nothing further? Then that disposes of the hearing of the matter. Thanks.

<ADJOURNED INDEFINITELY [10.20AM]