AG2008/1093, Transcript of Proceedings [2008] AIRCTrans 338 (9 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18685-1

SENIOR DEPUTY PRESIDENT RICHARDS

AG2008/1093

cl.16A(1)(a) Sch.8 - Appl’n for ext. of pres. collect. State agt by person bound
Application by National Union of Workers
(AG2008/1093)

BRISBANE

2.06PM, TUESDAY, 24 JUNE 2008

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

PN1

MR M THOMY: I appear on behalf of ITW Proline in Sydney for the SPL Group.

PN2

MR R VIERITZ: I appear on behalf of the National Union of Workers Queensland Branch.

PN3

THE SENIOR DEPUTY PRESIDENT: The application that's before me is an application lodged under paragraph 16A(1)(a) of division 3 of Part II of
Schedule 8 of the Workplace Relations Act seeking by way of the relevant rules and forms both a variation to and an extension of the SPL Group NUW Certified Agreement CA120 2005 as was made under the Industrial Relations Act 1999 Queensland.

PN4

I have before me all of the materials that were provided by way of the application in this matter and much of that material, the signed statutory declaration, signed by the branch secretary Mark Furneau, as he then was, or still is, Mr Vieritz?

PN5

MR VIERITZ: Actually Sunday, yesterday, was his last day so no, he's no longer with us.

PN6

THE SENIOR DEPUTY PRESIDENT: I have written statements. I have enough written material before me to satisfy myself about many of the preconditions for the purposes of allowing both the extension and the variation, but there are some matters that I would like to inquire of the parties about for the purpose of satisfying myself.

PN7

One particular matter that I need to address is the issue that arises for the purposes of paragraph 16A(2)(c) of the Act insofar as any variation must not on balance result in a reduction in the overall terms and conditions of employment of the employees bound by the agreement, that is under any relevant state award as it relates to the employees or any law of the Commonwealth or the state of Queensland that might be relevant.

PN8

I have the agreement before me and I've examined that agreement. I have before me your statutory declaration to that end but, apart from that, I was wondering whether either or both of you might be able to give me some indication yourselves on the record as to the nature of the variations that have taken place vis-à-vis the originating agreement.

PN9

MR VIERITZ: That's something we can both do. Is there anything in particular you would like to - - -

PN10

THE SENIOR DEPUTY PRESIDENT: No, we'll start where you wish to start.

PN11

MR VIERITZ: The variations that we have, as you probably have in page 1 and page 2, the title of the agreement has been changed, the arrangement has been changed in 1.2; the anti-discrimination has been changed, 1.3, in line with current legislation; the anti-discrimination, 2.3 of 1.3 has been deleted. It was no longer relevant, we believe. Commencement date of the agreement has been changed to 2008, 1 February. In 1.7, the parties bound, has been changed. The maintenance of the status quo, reference to the Australian Industrial Relations Commission has been changed.

PN12

THE SENIOR DEPUTY PRESIDENT: What's the change to the parties bound clause?

PN13

MR VIERITZ: The name of the National Union of Workers Queensland Branch, I believe.

PN14

THE SENIOR DEPUTY PRESIDENT: What's that changed from? Sorry, what was it in the original - - -

PN15

MR VIERITZ: Industrial Union of Employees. Would you like me to continue?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, please continue.

PN17

MR VIERITZ: With relation to the maintenance of status quo, I believe that to still be Australian Industrial Relations Commission. With the disputes settlement procedure, additional powers have been granted to the Commission, the Australian Industrial Relations Commission as well as the change to the Australian Industrial Relations Commission.

PN18

The wages rates in 5.1.1 are consistent with the previous agreement but there are also 4 and a half percentage points which is a yearly wage increase for the
two years of the agreement. The allowances in 5.4.2 have been changed to reflect those percentage points as well. Sick leave entitlement had been changed. There's been provisions put in there in relation to same sex couples as well as 7.2.1. Just off the top of my head I believe that's to do with same sex couples and also casual leave entitlements and also allows more than five, which was a restriction in the previous agreement. Use of sick leave, once again altered to suit those provisions that were previously in the agreement have been altered to suit also the current status quo for the site. Bereavement leave, there was an adjustment there to make that so that it was not just in Australia, it was actually available for people with parents outside of Australia.

PN19

Definitions, 7.6.1 was changed. I'm not exactly sure, I could look that up if you wish. Currently, I don't have that information with me.

PN20

THE SENIOR DEPUTY PRESIDENT: Sorry, which clause was that again?

PN21

MR VIERITZ: 7.6.1, definitions.

PN22

THE SENIOR DEPUTY PRESIDENT: There's been no narrowing or diminution in the entitlement, I presume.

PN23

MR VIERITZ: No. In line with what we believe in schedule 16 - sorry clause 16A of schedule 8 of the Act is virtually an extension of the agreement. There was no diminution at any point of the employees' entitlements. The company was quite reasonable in negotiations with us and gave us quite reasonable pay increases and also no decrease in any form of entitlements of the employees.

PN24

THE SENIOR DEPUTY PRESIDENT: Is that the extent of the variations?

PN25

MR VIERITZ: If I could continue, at 7.8, the trade union training leave, there was a reference to tutor removed from there and there was also a variation at 7.9 but the variations are only to suit legislational changes.

PN26

THE SENIOR DEPUTY PRESIDENT: Is that about it?

PN27

MR VIERITZ: Yes, that’s as far as I understand, Commissioner.

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Thomy, do you have anything to add to that?

PN29

MR THOMY: No, I don't. We sought to extend the agreement and ensure that our people were happy and content. We went through an extensive process in negotiating with both our employees, the employee representative and came up with the best deal without reducing any of the existing conditions in the previous agreement.

PN30

THE SENIOR DEPUTY PRESIDENT: Just on the vote, there was a formal vote in relation to this matter, presumably, Mr Vieritz, and a majority supported the variation as well as the extension. I think the variations and the extension were put to them for the purposes of the one vote, as I understand the statutory declaration. Do you have any details about the voting outcome at all?

PN31

MR VIERITZ: The voting outcome: I actually held the vote myself. The parties that were involved were all the employees from the site and it was a unanimous decision to accept it.

PN32

THE SENIOR DEPUTY PRESIDENT: It was unanimous?

PN33

MR VIERITZ: Yes, that's correct.

PN34

THE SENIOR DEPUTY PRESIDENT: There's one issue I will raise with you and that is the extended period of operation of the agreement is taken to have commenced on 1 February 2008.

PN35

MR VIERITZ: That's correct.

PN36

THE SENIOR DEPUTY PRESIDENT: An issue arises as to whether I can make a retrospective order in relation to that date of operation. It's most likely I can only make an order that's effective as of today's date going forward to the date of 1 February 2010. Does that raise any difficulties with you or are you quite capable of managing the practical life of the agreement from 1 February 2008 up until today's date yourselves?

PN37

MR VIERITZ: I don't think that would be a problem. Mark, would you have a problem with that?

PN38

MR THOMY: No, there's no issue there. I think we've got a very good relationship there and we should be able to honour any agreements we've made back to 1 February, from a payment perspective.

PN39

THE SENIOR DEPUTY PRESIDENT: No issues will arise. Presumably, there wouldn't be an issue of the availability of any of those entitlements. They're taken to have operated since you made your agreement back on 1 February 2008, that is to say at least from when your agreement came into practical operation for your own particular purposes from 1 February 2008. It's only in exceptional circumstances that the Commission would make a retrospective order. There is always considerable reluctance about doing that. This issue arose regularly in relation to certification of previous certified agreements and was seen to be able to be dealt with simply by the parties managing that earlier operation of the agreement themselves. Hopefully, that will certainly be the case now.

PN40

On the material that's before me, the statutory declaration, the written statements and the submissions that have been made today I'm satisfied that all of the Act's preconditions to allowing the variation have been satisfied and equally so, subject to my caveat as to the date of commencement of the agreement for the purposes of my order, as opposed to the practical date of commencement for the purpose of the parties, apart from that issue I will allow both the variation and the extended operation of the nominal expiry period of the agreement.

PN41

I will issue a decision in relation to this matter today and an order. I'll issue the decision, not that I intend necessarily to do so in the future, but to effectively demonstrate the way in which, at least at this initial stage, these preconditions, as specified in paragraph 16A of Division 3 of Part II of schedule 8 of the Act have been met in this particular circumstance, for the purpose of template interests in the future.

PN42

I'll issue that today so you ought to get a copy of my decision in this respect, plus the order which will embody the variation to the agreement as well as the extended operation of the agreement and that order ought to also be received by email later this day as well.

PN43

Are there any other issues that either the employer party or the employee organisation wants to raise?

PN44

MR VIERITZ: Not at this point, Commissioner.

PN45

MR THOMY: Not from the employer.

PN46

THE SENIOR DEPUTY PRESIDENT: Mr Vieritz and Mr Thomy, thanks very much for your attendance today. As I said the decision and the order, you ought to receive that later today. We're adjourned.

<ADJOURNED INDEFINITELY [2.19PM]