AG2005/7415, Transcript of Proceedings [2006] AIRCTrans 140 (2 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14019-1

COMMISSIONER DANGERFIELD

AG2005/7415

APPLICATION BY ORIGIN ENERGY LIMITED & TRANSPORT WORKERS’ UNION OF AUSTRALIA-VICTORIAN/TASMANIAN BRANCH AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7415)

ADELAIDE

9.38AM, THURSDAY, 19 JANUARY 2006

PN1

MR P TAYLOR: I appear on behalf of Origin Energy Ltd.

PN2

MR S DONNELLY: I appear on behalf of the Transport Workers Union Australia, South Australian Northern Territory branch.

PN3

THE COMMISSIONER: Mr Taylor, can you speak to this.

PN4

MR TAYLOR: Yes, and I'll start, Commissioner. The company has made application for certification of the Origin Energy South Australian Agreement 2005 under section 170LJ of the Workplace Relations Act. The original and five copies of the agreement plus the stat decs from the company, TWU Casterton sub-branch and the AW tax branch have previously been forwarded to the Commission. Something that I've noticed though since I lodged the application, Commissioner, on 23 December 2005, that the salary rates in section 19 and 20 there were a few that were wrong so I've now handed up rates that are right so if you could put that on - - -

PN5

THE COMMISSIONER: Yes, thank you. They are only mistakes I take it.
Mr Donnelly, you've had a look at this new annexure 2?

PN6

MR DONNELLY: Yes, I have.

PN7

THE COMMISSIONER: And they are only just typographical errors?

PN8

MR DONNELLY: Yes.

PN9

THE COMMISSIONER: Okay.

PN10

MR TAYLOR: With this agreement, Commissioner, it covers a total of 354 employees. They're based at, some of our staff are at 1 King William Street, our works depot at Brompton, our gas shop's in Perry Street, Morphett Vale. The agreement we've voted on and on December 9, 2005 and was approved. So the company is of the opinion, Commissioner, the requirements of section 170LT of the Act for certification of the agreement have been met. Therefore unless the Commission has any questions relating to the application or the agreement the company requests that the Commission certifies this agreement.

PN11

THE COMMISSIONER: Yes, I'll make a comment in a moment, Mr Taylor, but hear from Mr Donnelly first. Mr Donnelly, anything you wish to add?

PN12

MR DONNELLY: No, Commissioner, nothing further to add.

PN13

THE COMMISSIONER: Well can I just raise with you both clause - see if I can find it now, clause 17.9 of the agreement and 17.9 deals with facilitative agreements that can be made and it says:

PN14

Notwithstanding anything contained in this agreement the provisions of the agreement and any annexure thereto may be varied by agreement between the company, the unions and the majority of employees concerned.

PN15

That clause on its face would seem to allow any agreement, any informal agreement of any nature to vary this agreement and of course it would not be subject to the no disadvantage test and I must be satisfied that the agreement in advance passes the no disadvantage and I really, with that clause as it is, I could not be satisfied that the agreement passes the no disadvantage test because that would allow the parties to agree on anything at all that might - anything at all that would not be subject to the Commission having a look at it. Can I make a suggestion? My suggestion is that maybe the parties might wish to give an undertaking because under section 170LV of the Act there is provision in there which says that if the Commission is of the view that the grounds exist for refusing to certify an agreement and I think grounds do exist if it just stays there as it is, then the Commission may accept an undertaking from the parties as to the operation of the agreement.

PN16

Can I suggest if you would both be happy to give an undertaking along these lines that we could overcome the problem. The undertaking would be:

PN17

That any facilitative agreement made under clause 17.9 that has the effect of varying the provisions of this agreement will be processed pursuant to the provisions of the Act pertaining at the time about variations to agreements.

PN18

In other words at the moment if you made a facilitative agreement and that purported to vary this agreement you would have to submit it to the Commission to go through the processes of whatever the section of the Act is about variation to agreements. It can vary agreements but as long as you go through the processes in the Commission. With the Act as it is at the moment it says that, yes it passes the no disadvantage test, I am happy to accept the variation, it's varied accordingly. That's all I'm suggesting is that any facilitative agreement you make like that is processed pursuant to the provisions of the Act pertaining at the time about variations to agreements. Now I say the provisions of the Act pertaining at the time because as at today of course any variation of the agreement has to satisfy the no disadvantage test.

PN19

Under the Work Choices Legislation which is yet to be proclaimed, it's shortly to be proclaimed, there is no disadvantage test. It doesn’t come to the Commission at all. The Commission has nothing to do with agreements. So to some extent if we'd been looking at this in - well we wouldn’t have been looking at this in a couple of months time because the Commission wouldn’t have any role with agreements. But as at today I have to be satisfied it passes the no disadvantage test. I can't be satisfied with that unless the parties say, yes look any variation of the agreement we will process according to the relevant provisions of the Act pertaining at the time. Any comment?

PN20

MR TAYLOR: No, on behalf of the company we're saying we need to give that undertaking, Commissioner, yes.

PN21

MR DONNELLY: And so is the union.

PN22

THE COMMISSIONER: Yes. Gentlemen, I don’t think there is any option, really, but as I say, it's an undertaking you give today which when the Work Choices legislation comes in will be pointless anyway because the Commission has nothing to do with agreements but I think as at today I need to get that undertaking in order to approve the agreement. So I'll get my associate to give you the form of the undertaking. I mean, it doesn't matter really how we express it but it's something along these lines:

PN23

The parties undertake that any facilitative agreement made under clause 17.9 that has the effect of varying the provisions of this agreement will be processed pursuant to the provisions of the Act prevailing at the time about variations to agreements.

PN24

And that undertaking would then appear on the front sheet of the approval document of the Commission. The only other comment I'd just make about the agreement and I needn't make it but I mean, it occurred to me yesterday when I was looking at this, you know, this is a very comprehensive agreement, 53 pages in length, and it's got to be read in conjunction with two other awards and I was just thinking of the process. You know, if an employee of Origin Energy, lets say a new employee 12 months down the track comes in and says, what are my terms and conditions of employment. They would have to be told something like this, well there is an agreement here, pretty substantial agreement of 53 pages but it has to be read in conjunction with two other federal awards and here are these two other federal awards and under clause 17.6 the parties may make other certified agreements during the life of this agreement.

PN25

So there may be other certified agreements that may be made that may be relevant from time to time and under clause 17.4 and 17.9 you can also have a network of facilitative agreements at the workplace quiet informal. It can be made at any time, about any matter, any time, any where. So potentially you might have an employee trying to work out what their terms and conditions of employment are, having a 53 page agreement, two awards, several other certified agreements and a network of facilitative agreements. It could be substantial. How in the heck are they going to find their way through that and then, you know, I've just sat through the last two in another industry, I've sat through a two day hearing on a section 111AA recommendations by consent matter about what a particular agreement meant and I'd say it was comparatively a straight forward agreement.

PN26

There was just one agreement that we were looking at, it didn’t have to be read in conjunction with any facilitative agreements and other awards and so on, it took us two days. And I'm just thinking here you've got quite a network of things to have a look at, and then of course on top of all that one has to say, you've got your agreement, you've got your two federal awards, you got any other certified agreements and you've got facilitative agreements and then on top of that you have to apply the new Work Choices legislation to take out any prohibited content that may be in there. So all I can, gentlemen, is I hope you got good record keeping facilities and I wish you luck.

PN27

Because, you know, agreement making is supposed to be simple and it's not getting all that simple these days. But look I think, and I only make that comment because I got a bit depressed yesterday afternoon when I was looking at this whole thing. I was just thinking that, you know, perhaps for your future reference maybe its time, the next time around to try and simply some of this. No doubt it will be simplified next time around because the awards themselves will be hacked around and you will know what prohibitive content is in agreement and so on but wouldn’t it be wonderful just to streamline it down to say to an employee, here's what covers you and it's 20 pages or whatever it is and it's just this one document you don’t have to look at a whole heap of other things. Just something for you next time around. I'll get that off my chest.

PN28

The only other thing I note in regard to the statutory declarations, the declarations of the TWU and the company are consistent. I just note that Mr Heath's declarations from the AWU varies at 7.3 and I was just wondering whether - I don’t know if any of you have got copies of these declarations there but at 7.3 where the question is:

PN29

Have the terms and or conditions prescribed by any relevant award, designated award or laws of the Commonwealth been reduced?

PN30

And he's answered, "Yes". Both of you answered, "No". He's answered, "Yes".

PN31

And then 7.4 where it says:

PN32

Specify the terms or conditions that were reduced?

PN33

He's got:

PN34

Clause 14.5 sick leave reduces to 12 days.

PN35

And clauses 13 - 15:

PN36

Seven day trading - retail sales. Flexibility of working hours.

PN37

And that's all a bit cryptic to me. Do you know what he is talking about,
Mr Taylor?

PN38

MR TAYLOR: Yes, the sick leave under the award, Commissioner, I'm not sure if it is 15 days or 10 but is certainly 12 days in accordance with the agreement. So it is 15 days, it has gone down to 12. The seven day trading, I think, he's saying there that it's different because if the employees work on a Saturday instead of getting paid overtime they get a loading and the same on a Sunday. They get a loading of 20 per cent, I think, on a Saturday and 60 per cent on a Sunday. So we'd pay them in a different way compared to the award.

PN39

THE COMMISSIONER: Okay.

PN40

MR TAYLOR: Overall though they are not worse off because the Sundays are much higher

PN41

THE COMMISSIONER: He covers that in the next question which 7.5:

PN42

Specify any terms and conditions which may result on balance in no reduction in the overall terms and conditions.

PN43

And he says:

PN44

Clauses 18 and 19 remuneration schedules and annexures 4 and 6.

PN45

I mean I am quite satisfied, as indeed Mr Heath is satisfied, that the agreement passes the no disadvantage test but it's just that his statutory declaration pointed out some different things. So I just point that out to you and I should have perhaps said it right at the outset that the AWU technical administrative professional staff branch is not here today but I have a letter faxed through from Mr Heath, the branch secretary of the body, yesterday saying, and I should read it into transcript. It's actually dated the 17 January addressed to me saying and I quote:

PN46

The AWU is unable to be represented at the certification hearing to be held before you this Thursday 19 January at 9.30 am in Adelaide, therefore I wish to advise that the AWU fully supports the submission to be made by both Origin Energy and the TWU and seeks the agreement be certified if you are satisfied the agreement meets the normal statutory requirements. Collin Heath, branch secretary.

PN47

So I just indicate that for the record. Right, there is nothing further gentlemen? I then can indicate that this is an application under Division 2 of part VIB of the Act for certification of an agreement pursuant to section 170LJ. I have considered the application and the terms of the agreements, the subject of the application, I am satisfied firstly that the agreement in every respect pertains to the relations of the employer and the employees in their respective capacities as such and therefore complies with section 170LI of the Act. And I should say in that matter I had particular regard to clause 10.2 headed up, Union Matters, which is the clause I particularly had to look at in that respect but it's been I think competently drafted and that covers that.

PN48

The application is supported by statutory declarations on file of Phil Taylor, senior business advisor, Origin Energy, John Allen, federal secretary, Transport Workers Union Australia and Collin Heath, secretary of the AWU technical administrative professional and staff branch. Those declarations are in order. Having heard from the parties today in relation to this application to have their agreement certified I find firstly that the no disadvantage test is passed having regard to the underpinning awards which are the Origin Energy Salaried Staff South Australia Award 2000 and the Transport Workers Origin Energy Gas Industry (South Australia) Award 2003. The agreement at clause 16.1 includes procedures for preventing and settling disputes between the parties as required by the Act.

PN49

On the material before me it is clear that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate having regard to their circumstances and needs. Accordingly the Commission certifies the Origin Energy (South Australia) Agreement 2005 to be operative from today's date,
19 January 2006, which will be the date of certification and in accordance with the agreement provisions it will remain in force until 31 August 2008 being a date that is not more than three years from the day on which the agreement comes into operation. I also note that I think your wages actually apply from 1 September 2005 which of course is fine, it's just that the date of certification, today's date, means the agreement is enforceable as from today. That's all that means.

PN50

And the necessary documentation confirming certification will be forwarded to the parties in due course together with that undertaking that I spoke about and I will perhaps let my associate have a copy of that and perhaps we can you a copy of that before we leave and I'll incorporate that in the final terms of the agreement. Nothing further gentleman?

PN51

MR TAYLOR: Nothing.

PN52

THE COMMISSIONER: That then concludes the hearing of the matter.

<ADJOURNED INDEFINITELY [9.54AM]