AG2005/7830, Transcript of Proceedings [2006] AIRCTrans 119 (2 February 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14005-1

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2005/7830

APPLICATION BY BERENDSEN FLUID POWER PTY LTD & AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7830)

SYDNEY

10.24AM, WEDNESDAY, 18 JANUARY 2006

PN1

MS R DOCKING: I appear on behalf of Australian Industry Group for member company Berendsen Fluid Power Pty Limited.

PN2

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Ms Docking?

PN4

MS DOCKING: Thank you your Honour. This is an application made under Division 2 of Part VIB of the Workplace Relations Act for the certification of an agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the Automotive Food Metals Engineering and Kindred Industries Union on behalf of employees covered by the Metals Engineering and Associated Industries Award. The parties have prepared statutory declarations which we believe meet all the requirements of the Act, the rules and regulations of this Commission. We further submit that all the requirements of section 170LT and LJ have been met. Namely that the agreement does not disadvantage the employees covered by it.

PN5

A valid majority of the employees genuinely consented to the agreement on
19 December 2005. Access to the agreement and an explanation of the terms of the agreement occurred in accordance with the requirements of section 170LJ. It was appropriate having regard to the particular circumstances of the employees covered by it. The agreement contains a dispute settlement procedure at clause 15. The period of operation is set out in clause 4 of the agreement where it is stated the agreement will expire on 30 September 2008. The agreement also replaces a prior agreement and also terminates a bargaining period BP3592 of 2005. We would therefore request that the Commission certify the agreement in the terms sought. If the Commission pleases.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you. I’ve got questions on just two clauses. Can I take you to clause 16 it says:

PN7

Long service leave and redundancy will be earned and available according to the state award -

PN8

but there doesn’t seem to be a state award referred to anywhere. The award referred to as the parent award in clause 5 is the Metals Award, the Federal Metals Award. I’m wondering therefore what the reference is intended to be in clause 16.

PN9

MR MORRISON: Your Honour, perhaps I could assist. I also queried that it’s a typographical error it should be Act.

PN10

THE SENIOR DEPUTY PRESIDENT: I thought that was probably the case.

PN11

MR MORRISON: It should be Act rather than award.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. That would make sense for long service leave. The position for redundancy is that also the case?

PN13

MR MORRISON: Well it is covered by the Federal Metals Award, as you know there is redundancy provisions in there, but - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Like you I though 16 was probably meant to be the state Act.

PN15

MR MORRISON: State Act, yes.

PN16

THE SENIOR DEPUTY PRESIDENT: But it was the long service leave and redundancy reference that puzzled me.

PN17

MR MORRISON: Yes that - I can’t answer that, Ms Docking might have an answer to that question.

PN18

MS DOCKING: I did speak with the company about this a few weeks ago. It was my understanding that the reference to award was meant to be Metals Award in the New South Wales jurisdiction. Based upon the fact that the long service provisions kick in - pro-rata kicks in earlier than under the Federal Metals and the redundancy provisions are similar.

PN19

THE SENIOR DEPUTY PRESIDENT: Sorry you say under the state award?

PN20

MS DOCKING: The State Metals Award. It is my understanding that this provision roles over from the previous agreement and the employees seem to be aware of what the state award is. However, it should probably be referenced at the beginning of the agreement.

PN21

THE SENIOR DEPUTY PRESIDENT: I see. So, yes I mean there’s a New South Wales award of a very similar name to the Federal Metals Award and you’re understanding is that that has more generous long service leave and redundancy arrangements?

PN22

MS DOCKING: The pro-rata entitlements to long service kicks in two years before the Federal Metals Award does.

PN23

THE SENIOR DEPUTY PRESIDENT: I see. Mr Morrison.

PN24

MR MORRISON: Yes, the previous agreement as your Honour might be aware was a 170LK agreement and so when I spoke to the organiser what I previously told you that it was the Act that was based on I suppose speculation by the organiser. But, it seems that Ms Docking has got far more accurate information from the employer who does know the history of the agreement so I’m – I would like to withdraw that is was the Act and clearly it - I side with what Ms Docking has informed the Commission.

PN25

THE SENIOR DEPUTY PRESIDENT: So, from what you’ve said the intended operation of clause 16 is that the reference to the state award is a reference the State Metals Award?

PN26

MR MORRISON: State Metals Award, yes.

PN27

THE SENIOR DEPUTY PRESIDENT: Okay. Ms Docking that’s your understanding?

PN28

MS DOCKING: Having spoken to the Chief Executive Officer of the company that’s my understanding. It’s a reference to the New South Wales Minerals Engineering and Associated Industries Award.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Can we go to clause - look I’m just thinking that because of the potential for ambiguity given that there’s no state award referenced in the agreement, it might be helpful if we take that as an undertaking to be read in conjunction with this agreement. Do you have any problem Ms Docking in giving that undertaking on transcript?

PN30

MS DOCKING: No, your Honour.

PN31

MR MORRISON: Neither do we, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Okay. So in the certificate I issue I’ll include a preamble that references that undertaking. On the same page the clause immediately above ,15.2 which is part of dispute settlement procedure and it says:

PN33

The employer agrees that labour can be withdrawn when employees have a reasonable concern about a risk to health or safety.

PN34

Now, of course that exemption is included in the definition of industrial action in section 4 but in slightly different terms. I wondered whether there was any significance in the fact that the terminology used here is slightly different to the exemption which the Act itself provides in defining industrial action. Because my understanding would be that the agreement can’t actually override the Act.

PN35

MS DOCKING: It’s my understanding that it’s not intended to override the act it’s just to specifically identify that as to the employees that it’s a re-commitment by the employer.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, so it’s your understanding that that’s intended to be a reference to the exemption provided under that Act?

PN37

MR MORRISON: It’s our understanding that that’s the sole intent of that wording.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. It appears pretty consistent, just the terminology is slightly difference and I take it your submission from both sides is that there’s no significance in any differences in wording versus section 4?

PN39

MS DOCKING: Yes, your Honour.

PN40

MR MORRISON: Yes, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Okay thank you. With the addition of the undertaking on any ambiguity that might exist in clause 16, I am satisfied that the requirements of the Act and the rules of the Commission have been met in relation to this application and will certify it accordingly, with effect from today’s date to remain in operation until 30 September 2008. A certificate will issue to that effect. This Commission is adjourned.

<ADJOURNED INDEFINITELY [10.33AM]