AG2006/192, Transcript of Proceedings [2006] AIRCTrans 286 (2 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14305-1

COMMISSIONER RICHARDS

AG2006/192

APPLICATION BY UNITED GROUP RAIL NORTH QUEENSLAND PTY LTD
s.170MD(2) - Variation of certified agreement by employer or union
(AG2006/192)

BRISBANE

10.19AM, THURSDAY, 16 FEBRUARY 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN BRISBANE

PN1

MS J BLOMFIELD: I appear for Australian Industry Group, on behalf of United Group Pty Ltd, the applicant in this matter number AG2006/192. I have appearing with me on the phone, MR L BRAY from the Company.

PN2

THE COMMISSIONER: Thanks Ms Bloomfield. I have in my file a facsimile received from - signed by Mr ….. and received yesterday in the registry and transferred to me from Mr Andrew Depmar, indicating that the AMWU would not be in attendance today and supporting the progression of the certification of the agreement as proposed to be varied and attesting to amongst other - attesting to the wages schedule that has been attached to the agreement, which I’ll come to later, and generally supporting the certifications I said. And a claim of course which only buttresses the AMWUs statutory declaration which is included in this file, so I note that for the record. That said we have an agreement before us originally entitled The United Goninan North Queensland Townsville Operations Certified Agreement 2003, which was certified on 28 October 2003.

PN3

That said Ms Blomfield do you want to introduce the matter at all. I have particular questions so I’m not too sure whether you want to talk broadly or you’d prefer me just to go to the particulars?

PN4

MS BLOMFIELD: If you’d like to go to the particulars.

PN5

THE COMMISSIONER: Yes it might save us some time if you like as I’ve examined the statutory declarations and I’ve also examined the agreement itself as the variation - the proposed varied agreement and in conjunction with the original agreement as well. There are just some questions that I’d like to work through and this is the reason why I brought this matter on for hearing and if the parties would recognise I only bring matters on to hearing when I do have some questions that need some elaboration and I’m not able to readily deal with it by normal correspondence, or by email as the usual course. In relation to this matter I’ll just clarify a number of matters. I’ve been - the first matter is that in Mr Bray’s application and Mr Bray is the, if I recall is the applicant per se, that’s correct isn’t that right if I remember from the actual application itself.

PN6

The copy of the agreement that’s been handed to me in effect is the marked up original agreement which includes the variations in marked up form is that right?

PN7

MS BLOMFIELD: Yes Commissioner.

PN8

THE COMMISSIONER: That’s right. So all the matters that are dealt with and so indicated by the marked up version constitute the variations from the original agreement. For purposes of the record I indicate that - such matters as the date and period of operation of the agreement at clause 5 of the agreement are unaltered as a consequence of the variations that are sought. The nominal expiry date of the agreement therefore remains as it was originally in the terms as originally certified, that being the nominal expiry date remains 22 October 2006 is that how it’s understood?

PN9

MS BLOMFIELD: That’s correct you Honour.

PN10

THE COMMISSIONER: Right okay. I only raise that matter because the short duration sometimes attracts interest but I’m just underlining the point that it is understood by the parties and the nominal expiry date or period of operation hasn’t been subject to any variation and the term if you like, for the period of operation of the agreement remains as originally certified. That said can we first of all come to the issue of the wage rates and Ms Blomfield do you understand from previous discussions I think in related matters, the agreement itself that’s before me even in its varied form does not include any wage rates. As a consequence, in my view it simply is impossible for the Commission too execute its function in relation to section 170LT(1) of the Act and that is in relation to section 170LT(2) of the Act so far as it refers to the obligation of the Commission to be satisfied that the agreement meets the requirements of Part 6Z of the Act in relation to the no disadvantage test.

PN11

That said, I note the original agreement as certified appears not to have included any wage rates in it either nor any related undertakings. But that said for the purposes of the variation of the agreement, the obligation that falls upon me by section 170MD - by virtue of section 170MD, is that I need to approve the agreement as if it were a new agreement before me in effect. So I need to apply the no disadvantage test to this agreement on the basis of a wages schedule and you’ve included a wage - you’ve handed up a wages schedule in this instance even though it’s not there in the original certified version or referred to in the original certified version.

PN12

The wage rates that have been handed up are headed The United Goninan and North Queensland Pty Ltd wages rates September 2005 and these are the -
Ms Blomfield I need - perhaps it will actually require Mr Bray - Mr Bray I’ll just need some undertakings from you in relation to these wage rates. Are you familiar with that document that’s been submitted to me which has actually dated
17 January 2006?

PN13

MR BRAY: Yes I’ve got it in front of me.

PN14

THE COMMISSIONER: Good thanks Mr Bray. Mr Bray can you, for purposes of the no disadvantage test can you undertake to me that these are the wage rates which currently apply at the worksite?

PN15

MR BRAY: Yes, they are in line with the wage rates that were submitted with the original agreement.

PN16

THE COMMISSIONER: So there were wage rates submitted with the original agreements back in 2003 were there?

PN17

MR BRAY: We submitted them to AIG but they may not have been forwarded to the Commission.

PN18

THE COMMISSIONER: I see. Okay, well we wont necessarily go there then for current purposes because for my purposes I’m essentially certifying the agreement anew, so I at least have before me the wage rates that apply in the workplace. These are the wage rates which currently apply and about which employees are familiar, is that correct?

PN19

MR BRAY: Yes it is correct.

PN20

THE COMMISSIONER: And these are the wage rates consequently that were the known rates by all employees at the time the vote in relation to the variation of the agreement took place.

PN21

MR BRAY: Yes they were.

PN22

THE COMMISSIONER: Are these also the wage rates that will prevail in the workplace and to which the wage increases referred to in clause 11 of the agreement will apply in future?

PN23

MR BRAY: Yes.

PN24

THE COMMISSIONER: And finally and though it’s not necessarily strictly a matter for certification but it’s one that does provide me with some comfort, would you undertake or agree to provide a copy of this wages schedule to any new employees who commence work in your company and work under this agreement. Look I’ll explain my reason, it’s simply that in the absence of a wages schedule any new employee other than having the technical dexterity to access the internet, won't have access to an agreement that include reference to their wage rates to which you’ve undertaken this document attests. So, I’m just wondering whether new employees, at least by putting this on - these wage rates on a notice board such that they’d be generally known, would that be possible?

PN25

MR BRAY: Yes, the wage rates offered to an employee is stated in their letter of employment, the letter of offer and also the on site union representation has copies of these wage rates as well.

PN26

THE COMMISSIONER: Good. Look I think on that basis would it be possible for you too consider just putting the wage rates schedule itself as handed up on your notice board. I say that because sometimes when people vote for agreements they not only vote on the basis of what they know about their particular rate of employment - their particular wage rate, but they also vote on the basis of their understanding of how wage rates generally or in relation to other classifications or circumstances might be varied. So it’s just important for purposes of the obligation to properly explain the agreement, that the employees have a capacity to appreciate the totality of the wages schedule - the wages schedule that applies to the workplace. So look, would it be possible to put that on the notice board used for such purposes?

PN27

MR BRAY: Yes.

PN28

THE COMMISSIONER: Good. Thank you, because that would allay my concerns about that matter and also in relation to new employees who would then also be able to understand the totality of the wages structure at the workplaces as well. Now that said, sorry I’ll just work through these questions. The wages schedule that you’ve handed up has not been amended for reason of these variations has it?

PN29

MR BRAY: No.

PN30

THE COMMISSIONER: No. So that leads me to the question in relation to the wages schedule and that is subclause 11(j) which relates to the tool allowance being incorporated into the weekly rate. Now because the wage rates haven’t been adjusted in the original schedule the - I therefore assume that the weekly wage rate - that the tool allowance has been incorporated in effect in the weekly wage rate because I presume its been a part of the exchange for the other benefits that are flowing to the employees by virtue of subclause 11(k) and (l) is that right?

PN31

MR BRAY: No sir, the - that clause (j) was put in there for clarification.

PN32

THE COMMISSIONER: Okay. So, you say it was intended to be incorporated in the original agreement was it?

PN33

MR BRAY: It was in the original agreement.

PN34

THE COMMISSIONER: Okay then. So it’s a clarification of a - an incorporation of a tool allowance that took place at the point of the original certification, but lacked clarity at that point?

PN35

MR BRAY: Yes.

PN36

THE COMMISSIONER: So it’s always been in the wage rates.

PN37

MR BRAY: Yes.

PN38

THE COMMISSIONER: Okay I see. Was there a - I’m sorry this is more a matter for my curiosity, was there a reference to the tool allowance cash out in the original agreement?

PN39

MR BRAY: Where the clarification became, in the original agreement if I can find the right clause, there was confusion of the payment of tool allowance because we had offered up in the - I’m just trying to the find the clause in the original agreement, because what had happened there was an interpretation issue and they thought to take any ambiguity out the - we put a separate point in. Now in the original agreement there was clause 11 paragraph b.

PN40

THE COMMISSIONER: Sorry paragraph?

PN41

MR BRAY: B.

PN42

THE COMMISSIONER: How does that start? I’ve just lost - my margins have gone on this copy I’ve got, how does that paragraph start?

PN43

MR BRAY:

PN44

The wage ….. shall compensate for all conditions and disability.

PN45

THE COMMISSIONER: Okay. So it was absorbed into that general phrase was it?

PN46

MR BRAY: There was a - it read along the:

PN47

Employees may ..... and Townville Operation Metal Engineering and Associated Industry Award ..... will include shift work, weekend work, overtime ..... will continue to apply where appropriate.

PN48

Now because the schedule was put up last time included the tool ….. from the base rate to the all purpose rate there were questions asked for clarification from the union and we gave them information that showed that the tool allowance was in the all purpose rate so, for clarifications sake we took the word "tool" out of that clause (b) - - -

PN49

THE COMMISSIONER: Yes I can see that now. 11(b) that’s - sorry that does clarify an issue for me. So 11(b) is where you’ve deleted the tools and you’ve let it stand alone at 11.

PN50

MR BRAY: Yes.

PN51

THE COMMISSIONER: I see now how you’ve - sorry that does make sense to me now, I see what’s happened. Look so we can move on from that. Not withstanding that, I see at - there are increased - there’s a new loyalty allowance at subclause 11(k) and a weekly attendance bonus - conditional attendance bonus at subclause 11(l), which of course taken together and in the context of the wages schedule clearly demonstrate that the agreement meets the minimum requirement of the no disadvantage test. And no doubt reflects I presume, some of the skill shortages that you might be facing.

PN52

MR BRAY: Certainly.

PN53

THE COMMISSIONER: Yes okay. The only other issue I need to raise then is - thank you for clarify those other ones, and in fact, I only raised it to deal with it and dispose of it and that is, I noticed that clause 17 which refers to contractors - sorry casual fixed term and contract labour has been amended.

PN54

MR BRAY: Yes. Again that ..… was made we've basically gone silent on the length of time contractor can be employed. In the previous agreement we could only employ casual employees or contract labour for a period of 12 weeks, which wasn’t very helpful for the company.

PN55

THE COMMISSIONER: I suspect that if that clause had remained in the agreement it’s a clause that I would have required you to put submissions to me on as to how it could be a clause that would meet the requirements of the requisite relationship, such that it was not a prohibition on the engagement of contractors and fell foul of the decision of High Court in Re Cox. So whatever the event, you’ve removed for my certification purposes any reference to a prohibition on the extent to which contractors can be engaged.

PN56

You’ve reconstructed it in a more anodime form. Perhaps even that’s too much, you have essentially, at clause 17 constructed at clause which appears to be aspirational in nature in relation to redundancy costs and which refers to your undertaking or goal to or intention to simply have an appropriate mix of full-time, fixed-time employees, causal employees and contract labour. The definition of an appropriate mix is not provided in the agreement and is one that therefore presumably a discretionary matter for the employer. Am I right in characterising it in that manner Mr Bray?

PN57

MR BRAY: Yes it is and those issues are constantly spoken about at our ….. committee meetings with the union officials.

PN58

THE COMMISSIONER: Yes. Well in any event the clause itself no longer or in its current form does not exhibit any suggestion implied or direct that there’s a prohibition on the engagement of contract labour. Therefore it is not a clause that attracts my attention for whether or not it’s a clause that can be included in the agreement or because of which the agreement itself may not able to be certified. So I’ve considered the clause, I’ve noted the amendment and disposed of any concerns I have with it. That said, the bulk of the variations in the agreement simply all relate to effective name changes. Apart from other - there’s some other substantive ones of course but in terms of volume all the references to the name change have been given effect and are effectively minor matters of detail. Are there any other matters that need to be brought to my attention in relation to this?

PN59

MS BLOMFIELD: Just one more Commissioner, we seek for you to exercise your discretion under section 111(1)(r) of the Act to extent the 21 day time limit prescribed in section 170LM(2). Commissioner will have noted that while the employees approve the variation of 5 January, it was not filed until 10 February this was out of time and we submit this was due to administrative delays associated with this time of year. Our instructions are that the size and composition of the workforce has not changed. We therefore request the Commission certify the variation to the agreement in the terms sought, may it please the Commission.

PN60

THE COMMISSIONER: I think more of my concern in relation to extension of time is not so much - well is principally whether any mischief was intended and I take it from what you’ve said and the nature of the delay that no mischief was intended. In fact, the implication of any mischief is ….. used in terms of the continuing operation of the original agreement. I’m not satisfied there is any mischief afoot for any reason and as a consequence in my view, non-compliance with the strict requirements of the Act does not in any way impede the certification of this agreement. Particularly such that the only outcome of any question about jurisdiction resulting from non-compliance of section 170LM of the Act would be a disadvantage that would fall to the parties who seek to make the varied agreement and no other interest would arise.

PN61

On that basis I’m satisfied that the variations as sought are appropriate ones and have been processed in an appropriate manner in accordance with the requirements of the Act. There are a number of matters that I’ve dealt with in this agreement and I will embody those in a short written decision to ensure that there’s clarity and certainty as to how the agreement should be given proper effect and I’ll do so as promptly as I can. But that said the agreement as varied is certified from today’s date to operate for the residual period as indicated in the original certification which was from today’s date through to 27 October 2006. Thanks for your attendance, thanks Mr Bray for your attendance and submissions and undertakings as well.

<ADJOURNED INDEFINITELY [10.40AM]