AG2008/1549, Transcript of Proceedings [2008] AIRCTrans 861 (30 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19535-1

COMMISSIONER LEWIN

AG2008/1549

cl.2A(1)(b) Sch. 7 - Application for an order to vary pre-reform certified agreement

Mobil Oil Australia Pty Ltd
and
National Union of Workers
(AG2008/1549)
Mobil Yarraville Terminal Distribution Improvement Plan Agreement 2005

(ODN AG2005/4236)
[AG840388 Print PR958545]]




Melbourne

4.42PM, MONDAY, 15 DECEMBER 2008

PN1
MS G CAPASSO: I seek leave to appear on behalf of Mobil Oil Australia Pty Ltd, with me MR S KINGSHOTT and MS S MILNER from the company.
PN2
MR G MAAS: I appear for the National Union of Workers.
PN3
THE COMMISSIONER: Should I grant leave?
PN4
MR MAAS: Yes, Commissioner, no objection.
PN5
THE COMMISSIONER: Leave is granted, Ms Capasso.
PN6
MS CAPASSO: Thank you, Commissioner.
PN7
THE COMMISSIONER: I've had a look at the papers and it seems that there's no issues about the conformance of the application with the statutory provisions. Is there anything that you wish to add to what's on the file?
PN8
MS CAPASSO: No, Commissioner. We just rely on the documentation that's been filed.
PN9
THE COMMISSIONER: Yes.
PN10
MR MAAS: We support the application, Commissioner, and of course rely on the statement of Ms Esmond Curnow, the Assistant Branch Secretary of the NUW which has been provided to your chambers.
PN11
THE COMMISSIONER: Now, I'm not quite sure where I sighted a variation order. Is there a draft variation order or is there simply the agreement as - - -
PN12
MS CAPASSO: Commissioner, there was a draft order that was sent through to your chambers on Friday afternoon.
PN13
THE COMMISSIONER: I'll just check and see whether it's actually been placed on the file. My associate is not with me today. Did that come by hand?
PN14
MS CAPASSO: It was sent by email, Commissioner, to your chambers.
PN15
THE COMMISSIONER: All right. Now, there's not a hard copy of it on the file so I'm a little disadvantaged. Do you have a copy of the draft, a hard copy of the draft?
PN16
MS CAPASSO: I will have, Commissioner, if you could just bear with me for one moment.
PN17
THE COMMISSIONER: Yes.
PN18
MS CAPASSO: Yes, Commissioner, I have those documents.
PN19
COMMISSIONER: You'll just have to bear with me. This is the first time I've sighted this, although my associate was very much engaged on Friday afternoon. I think this was filed by email, that's why I haven't seen it today.
PN20
MS CAPASSO: Yes, Commissioner. We must say we thank the Commission for listing the matter so quickly which may be the reason as to the amount of time of the order coming before the Commissioner.
PN21
THE COMMISSIONER: Now, I'll take you at your word. A lot of this is changes to the text, form of expression to the entitlements and obligations conferred and imposed by the agreement, such as replacing words like "employees" with "operators".
PN22
MS CAPASSO: Yes.
PN23
THE COMMISSIONER: And so my concern is not with those matters, but with matters that are more fundamental to the statutory requirements for the application to be granted. Can you help me with item 4 of the draft order? I take it that this does not vary the identity of the legal personality who made the original agreement?
PN24
MS CAPASSO: No, it doesn't, Commissioner. It's the same entity.
PN25
THE COMMISSIONER: Now, you understand why I ask that question. This must be a variation and cannot be a new agreement.
PN26
MS CAPASSO: Commissioner, there is a substantive provision making provision for wage increases if that assists, Commissioner, in relation to the three 5 per dent increases over the extended period of the agreement.
PN27
THE COMMISSIONER: So that commences at 42?
PN28
MS CAPASSO: That's correct, Commissioner.
PN29
THE COMMISSIONER: Have you filed a consolidated agreement with the variations?
PN30
MS CAPASSO: Commissioner, there were two documents which I handed up. The following document which is the draft order - - -
PN31
THE COMMISSIONER: This is the document that you handed up. Is that the agreement consolidated with the variations?
PN32
MS CAPASSO: Yes, Commissioner.
PN33
THE COMMISSIONER: Right.

EXHIBIT #A DRAFT ORDER

PN34
THE COMMISSIONER: Now, given that I have only this moment sighted this draft order and notwithstanding that much of it really deals with the form of expression of the agreement, I should address myself to the question of any disadvantage which might be gleaned to flow from of the variations which are proposed. My reading of this is, perhaps a little issue of union Picnic Day, I can see nothing which is actually less than official as a result of the proposed variations and that insofar as the schedule of variations in the draft order deal with substantive terms and conditions of employment, other than that they would seem to confer additional and more beneficial terms of conditions and employment. Is that correct?
PN35
MS CAPASSO: That's certainly the company's position, Commissioner, and if it assists in terms of the application, we attempt to deal with that in the grounds of the application in terms of the on balance overall assessment in terms of no reduction of the overall terms and conditions of employment as stated. Paragraph 6 of the grounds of the application refers to the applicable awards which are to be read in conjunction with the agreement. We note in ground 7 the only variations we've been able to ascertain in respect of those awards and, as we state in 89, it's our position that - - -
PN36
THE COMMISSIONER: Those awards don't have union Picnic Days in them any more in any event, do they?
PN37
MS CAPASSO: I don't think they do, Commissioner, but I do - - -
PN38
THE COMMISSIONER: They may have had historically, but wouldn't they have been statutorily evaporated?
PN39
MR MAAS: I think during the simplification process, Commissioner.
PN40
THE COMMISSIONER: Yes, all right. Thank you, Ms Capasso. Mr Maas, do you want to respond to anything that I've raised, and it would be of assistance if you could address the question of disadvantage?
PN41
MR MAAS: We support Ms Capasso's submission with respect to that, Commissioner.
PN42
THE COMMISSIONER: So even if the agreement contains a union Picnic Day, the other additional and more beneficial terms and conditions of employment would on balance not result in a reduction in the overall terms and conditions of employment of the employees?
PN43
MR MAAS: Yes, that's correct.
PN44
THE COMMISSIONER: And am I correct in my assessment that the only matter that might be identified as a disadvantage to be taken into account in that balance is the union Picnic Day provision of point 95 of the draft order?
PN45
MR MAAS: If you could bear with me just one moment.
PN46
THE COMMISSIONER: Yes.
PN47
MR MAAS: Commissioner, if I could also take you to number 96 of the draft order. You will see there that whilst the days have been removed, they've actually been replaced with two additional - - -
PN48
THE COMMISSIONER: Well, look, I must say, that's what I assume, but that was just a guess on my part that paragraph 96 is really about changing those entitlements, that's the Picnic Day and Melbourne Show Day entitlements, so as to make them non-specific and to convert them into two additional public holidays, two days' leave actually. Is that right?
PN49
MR MAAS: Yes, that's correct. That's my understanding.
PN50
THE COMMISSIONER: So in other words, what used to be an entitlement to be absent without loss of pay on union Picnic Day and Melbourne Show Day now becomes an entitlement to be absent for two days in addition to the public holidays prescribed by the agreement and the days concerned are to be days agreed by the company. Is that my correct - - -
PN51
MR MAAS: Absolutely, yes, Commissioner.
PN52
THE COMMISSIONER: That's what I thought, but it doesn't actually say that as you can see in the order. In fact, there is no reduction. There's simply a conversion of the entitlement.
PN53
MR MAAS: That's my understanding, Commissioner.
PN54
THE COMMISSIONER: It's the same level of entitlement, two days' leave or two days' absence without loss of pay.
PN55
MR MAAS: That's correct.
PN56
THE COMMISSIONER: It's simply when that will occur.
PN57
MR MAAS: It's the timing of when the leave is taken and that is to be agreed between the company and the employees.
PN58
THE COMMISSIONER: All right. Well, then can you confirm therefore for me that in fact having heard you on that and having had my guess confirmed, that indeed, there are no reductions whatsoever in the terms and conditions of employment currently prescribed by the agreement and that to the extent that there are any substantive changes to terms and conditions of employment, they are only additional and more beneficial terms and conditions of employment?
PN59
MR MAAS: Indeed, Commissioner.
PN60
THE COMMISSIONER: All right, that's good.
PN61
MR MAAS: If the Commission pleases.
PN62
THE COMMISSIONER: I am satisfied that the statutory provisions for the extension of the life of the Mobil Yarraville Terminal Distribution Improvement Plan Agreement 2005 as sought by the application in this matter have been met. I'm also satisfied that the variations sought by the application conform to the statutory requirements and that the agreement should be varied accordingly. In particular I am satisfied that there are no reductions or disadvantages accruing to the employees in accordance with the relevant statutory criteria for the evaluation of the agreement for the purposes of the approval of the variations.
PN63
Therefore an order will issue varying the agreement in accordance with the draft order which has been filed and marked as exhibit B in these proceedings. The life of the agreement will be extended until 31 December 2010 and the variations scheduled in the draft order, exhibit B, will be effected. An order will issue accordingly and will be attached to the consolidated agreement reflecting the extension and variation in exhibit A. Thank you.

<ADJOURNED INDEFINITELY [4.56PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A DRAFT ORDER PN33