AG2008/1081, Transcript of Proceedings [2008] AIRCTrans 335 (9 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18678-1

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2008/1081 AG2008/22

cl.2A(1)(b) Sch. 7 - Application for an order to vary pre-reform certified agreement
National Union of Workers
and
Ego Pharmaceuticals Pty Ltd
(AG2008/1081)

cl.2A(1)(a) Sch. 7 - Application for extension of pre-reform certified agreement by person bound
National Union of Workers
and
Ego Pharmaceuticals Pty Ltd
(AG2008/22)

MELBOURNE

11.34AM, MONDAY, 23 JUNE 2008

PN1

MS A PARKES: I appear for the National Union of Workers.

PN2

MR C LONG: I appear for Ego Pharmaceuticals.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes Ms Parkes.

PN4

MS PARKES: Thank you, your Honour. Your Honour, if I could start by tendering some documents to you.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6

MS PARKES: The first being the formal copies of the applications and the supporting statutory declarations. Also three signed copies of the agreement as amended and also the draft order that the parties are seeking to have made today.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. They are the originals of the documents that have been filed, are they?

PN8

MS PARKES: That's correct.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. I will mark them just for identification. Where do I start?

EXHIBIT #A1 BUNDLE OF DOCUMENTS COMPRISING FORM R49A, FORM R49B, WRITTEN STATEMENT BY
MR THOW AND MR LONG, STATUTORY DECLARATION BY MR THOW ON 11/06/2008 AND STATUTORY DECLARATION BY MR LONG ON 05/06/2008

PN10

THE SENIOR DEPUTY PRESIDENT: That's in matter AG842627. No, this is in both matters is it?

PN11

MS PARKES: Yes. Out of an abundance of caution, your Honour, we thought it might be appropriate to file both the variation and an extension.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, that can be done using the one form despite what the rules might otherwise indicate.

PN13

MS PARKES: Thank you, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: For future reference. The draft order, it didn't have the AG22 in that first.

PN15

MS PARKES: I should indicate the draft order that we are actually seeking, your Honour, is the one that is separately stapled and is not part of the bundle of documents with the application.

PN16

THE SENIOR DEPUTY PRESIDENT: And that has the two AG numbers in it?

PN17

MS PARKES: That's correct.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, yes, very well. So the draft order that is in the bundle shouldn't be there, is that right?

PN19

MS PARKES: This is the replacement one. It's got the date and it's got your Honour's details and it's got the matter numbers contained.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'll remove the draft order from A1 so as to avoid confusion because you don't rely on that and I'll mark the draft order itself as A2.

EXHIBIT #A2 DRAFT ORDER

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Ms Parkes. I will mark the - - -

PN22

MS PARKES: There are three copies of the agreement as amended, your Honour, that have been signed by the parties and the reason for that will become clear when I go through the draft order with your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, I'm just wondering - yes.

EXHIBIT #A3 SIGNED ENTERPRISE AGREEMENT

PN24

MS PARKES: Thank you, your Honour. If I could just take your Honour just quickly back to exhibit A2, the draft order.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MS PARKES: And if I could take your Honour to the second last page of the draft order, there is actually one typographical amendment. Clause 11 of the draft order, clause 11 at appendix 8 of the draft order, it should read there the first line:

PN27

Except as provided for by subclauses 5, 5(a)(iv) or 5(b).

PN28

And the deletion there of subclause 5(c).

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. And that's been made on the draft order I notice.

PN30

MS PARKES: Yes.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN32

MS PARKES: Your Honour, the provisions of schedule 7 to the Act deal with the variation and extension of pre reform certified agreements and essentially I am required to satisfy your Honour on three main grounds in order for the variation and extension to the agreement to be made as proposed.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes.

PN34

MS PARKES: The first requirement, your Honour, under clause 2A(2) is the requirement that all parties bound by the agreement genuinely agree to the variation and/or extension.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, that's subsection 2 of clause 2A.

PN36

MS PARKES: Yes, your Honour. And we would submit, your Honour, that the bundle of documents before you in exhibit A1 and the statutory declarations of
Mr Thow and Mr Long would indicate to you that certainly the parties do agree to the extension or variation and that has also been approved by the employees.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, I am satisfied as to that having read those documents, which I did before coming onto the Bench.

PN38

MS PARKES: Thank you, your Honour. The second requirement is that none of the parties are to the introduction day of the transitional legislation must not have organised, engaged in or threatened industrial action and in exhibit A1 there is also a statement once again signed by Mr Thow and Mr Long to this effect.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. And again I indicate that I am satisfied as to that.

PN40

MS PARKES: The third requirement, your Honour, is that the agreement as varied would not result on balance in a reduction of the overall terms and conditions of employment of employees bound by the agreement under any transitional award that would have regulated their conditions, which in this case would be the Manufacturing Chemists Award, or in respect of any law of the commonwealth or state or territory that the Commission considers relevant. And once again, your Honour, we would submit that that particular issue is addressed in the statutory declarations and exhibit A1 of Mr Long and Mr Thow.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. And you are familiar, I take it, with the terms of the variations made to the agreement, Mr Parkes?

PN42

MS PARKES: Yes. Your Honour, if I could just take you perhaps to the terms of the draft order to essentially explain what the variation was.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes.

PN44

MS PARKES: The draft order is essentially in two parts. First it seeks to vary the agreement in accordance with the amendments set out in appendix A to the draft order and it seeks to extend the agreement for three years. And we also propose that the agreement as amended and extended, and that's the document at exhibit A3, also be attached to the order. So we both have an amended agreement that's been signed by the parties plus the draft order with appendix A which outlines what the changes are. If I could take your Honour to the terms of appendix A.

PN45

THE SENIOR DEPUTY PRESIDENT: Most relevantly that includes wages by
5 per cent a year.

PN46

MS PARKES: Well, the key issue - that is one change, your Honour. The key issue arising in relation to this is there's actually a change in relation to how hours of work are performed at the work site. In the pharmaceutical industry there's an average of a 36 hour week and at the moment the arrangement at the work site was a four day week of nine hours per day, per shift. The change to the agreement that there now be a nine day fortnight of eight hours per shift. So the 36 hour week is averaged over a fortnight and nine hours a week per fortnight instead of eight times nine hours being worked per fortnight. So essentially the key changes are to reflect that particular arrangement.

PN47

And in addition there is a wage increase of 5 per cent per annum for the next three years and there's also a one off payment to employees that have previously been working the four day roster. The only other changes, your Honour, is to insert some clauses in relation to the hours of work that in special circumstances and where there is agreement that the hours of work may start at 6.30 instead of 7 am, that there is provisions for additional make up time by agreement between the parties, that the new test case standard on overtime has been inserted into the agreement, and there's been some clarification in relation to the provision of overalls and the superannuation clause.

PN48

And the final key change is a requirement, or not a requirement, what I would call a job security clause that where possible over time will be offered between relevant employees first. So the key change, your Honour, other than the wage increases is indeed to the change in hours of work and the agreement has been approved by a valid majority of employees.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. I am satisfied that the agreement as varied would not result on balance in a reduction in the overall terms and conditions of employment of the employees bound by the agreement under any transitional award or any law of the commonwealth or the state. Ms Parkes, just in relation to clause 2 of the draft order, the nominal expiry date of the agreement is extended to three years from the date of this order.

PN50

MS PARKES: Yes. The reason of that, your Honour, is when we were negotiating the agreement we were unclear as to obviously what date we would reach finalisation in terms of the vote and then secondly what date there would be a Commission hearing. The current agreement has a nominal expiry date of 30 June of this year.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MS PARKES: And so the intent was basically that we were seeking essentially the maximum of the extension, which is three years from the date of the Commission's order.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes. And that's consistent with clause 2A(3) of the Act, of schedule 7.
MS PARKES: That's correct, your Honour. And it was simply because we weren't sure of what the timing would be, whether we would be before the Commission in late June or mid July, that that was expressed in that particular way. But the parties certainly acknowledge that the Act provides for a maximum of three years from the date of the Commission's order.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes. And clause (b) that it remain in force until 20 June 2011 is to give effect to that particular requirement. I see, yes. I might have to have a look at that, but other than that I'm happy to make the order in the terms sought.

PN55

MS PARKES: Thank you, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Long.

PN57

MR LONG: Your Honour, I am here just to support the submissions put forward by the NUW.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you, yes. Well, an order extending the life of the agreement for three years from today's date will be made and the agreement will be varied in the terms provided for in appendix A to the draft order. If there is nothing further we will adjourn the Commission. Thank you.

<ADJOURNED INDEFINITELY [11.46AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BUNDLE OF DOCUMENTS COMPRISING FORM R49A, FORM R49B, WRITTEN STATEMENT BY MR THOW AND MR LONG, STATUTORY DECLARATION BY MR THOW ON 11/06/2008 AND STATUTORY DECLARATION BY MR LONG ON 05/06/2008 PN9
EXHIBIT #A2 DRAFT ORDER PN20
EXHIBIT #A3 SIGNED ENTERPRISE AGREEMENT PN23