AG2008/1576, Transcript of Proceedings [2009] FWATrans 49 (29 January 2009)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19659-1

COMMISSIONER LARKIN

AG2008/1576

cl.2A(1)(a) Sch. 7 - Application for extension of pre-reform certified agreement by person bound

Application by Amcor Packaging (Australia) Pty Ltd t/as Amcor Flexibles Australasia - Regents Park
(AG2008/1576)
Amcor Flexibles Regents Park Enterprise Agreement 2005

(ODN AG2005/7450)
[AG844369 Print PR965188]]




Sydney

3.48PM, THURSDAY, 15 JANUARY 2009

PN1

MS C BREWSTER: I’m the human resources adviser for Amcor Flexibles and with me today is MR G HARDICK who is the general manager of operations for our Regents Park site.

PN2

THE COMMISSIONER: Yes, thank you. Please be seated for the moment. Yes, all right, Ms Brewster. You have been liaising with my associate.

PN3

MS BREWSTER: Yes.

PN4

THE COMMISSIONER: So I think we’re both reasonably up to date in relation to issues that have been raised with the application.

PN5

MS BREWSTER: Yes.

PN6

THE COMMISSIONER: I’ll just note now the other two parties to the agreement, AMWU and CEPU, we haven’t heard from the AMWU at all in relation to this listing. We did receive correspondence from the CEPU indicating they support it and that they couldn’t attend and if we required a written statement in relation to - supporting the application with a written statement in relation to an agreement for the variation, extension and also confirming that the parties have not organised or engaged in industrial action and what have you as required by the Act, that the CEPU would forward it in but I already have a statement to that effect from Mr Sinclair.

PN7

MS BREWSTER: Yes.

PN8

THE COMMISSIONER: So I just wanted to put that on the record and I don’t know if you are feeling like me as to the reason why the AMWU is not present.

PN9

MS BREWSTER: Yes, Commissioner. To be honest, I’m unsure. I was in contact with Matthew Lowe from the AMWU yesterday advising of the submissions that I had spoken about with your associate and he said he had no concerns. I asked him if he knew who was attending today; he said he was unsure and I left it with him from there. So unfortunately I’m unsure of why they’re not here today.

PN10

THE COMMISSIONER: Yes. But you have been liaising with them?

PN11

MS BREWSTER: Yes, I have.

PN12

THE COMMISSIONER: All right.

PN13

MS BREWSTER: And Commissioner, if I may - also the AMWU has also provided a written statement to similar effect as the CEPU.

PN14

THE COMMISSIONER: Yes. I didn’t mention that but of course - and so as Amcor have done as well. I didn’t mention that because we were talking about the CEPU but, yes, I’m aware of that. I think there are only - I will hear your submissions but there were, I believe, two issues that we raised with the parties to be remedied.

PN15

One issue has been a name change to the agreement itself to reflect 2008 as opposed to 2005. The other issue with the name change, from our perspective, was inclusion of the words “Australasian” and - I just can’t find the agreement at the minute. Just a moment, please. Bear with me. Yes, I have it here now.

PN16

They were the two issues in regards to the change of title and I drew to the parties attention a decision of his Honour Lacy SDP in the Mobil Oil decision in relation to his determination with which I respectfully agree; that the change of name to an agreement does not involve the terms and conditions of the agreement being varied. It’s not necessarily a term or condition. That was one point.

PN17

The next point I raised - and I can see the logic of it, in a sense. I don’t think it’s a major issue but I put the parties on notice - it’s the change to clause 4 of the agreement of parties bound. Would you like to address me on that one issue?

PN18

MS BREWSTER: Absolutely. With regards to the variation of the name in point 1 of clause 4 of the current agreement, the name that we have changed it to is Amcor Packaging (Australia) Pty Ltd trading as Amcor Flexibles Australasia - Regents Park - it’s merely an extension of the name. It’s the actual legal name of the site that this agreement applies to and it doesn’t vary the parties bound within the agreement.

PN19

THE COMMISSIONER: Well, first off, the parties bound - we’re talking about clause 4.

PN20

MS BREWSTER: Yes.

PN21

THE COMMISSIONER: At the moment parties bound is the company, Amcor Flexibles Australasian - Regents Park.

PN22

MS BREWSTER: Yes.

PN23

THE COMMISSIONER: And you seek to change it to - and I just cannot find - yes, here we go. You seek to change it to Amcor Packing (Australia) Pty Ltd trading as Amcor Flexibles Australasian/Regents Park?

PN24

MS BREWSTER: Yes, that’s correct.

PN25

THE COMMISSIONER: But that - it’s not changing the employer?

PN26

MS BREWSTER: Not at all, no.

PN27

THE COMMISSIONER: Has there been a name change?

PN28

MS BREWSTER: No, we just thought it appropriate to include the exact legal name of the site in the agreement.

PN29

THE COMMISSIONER: So was that the legal name in 2005?

PN30

MS BREWSTER: No, that’s just what the site was referred to as.

PN31

THE COMMISSIONER: Was there no legal entity?

PN32

MS BREWSTER: Yes, there was. It’s just that in that particular document it wasn’t written like that.

PN33

THE COMMISSIONER: You see, “parties bound” is a very important clause in an agreement. It identifies the specific party so what’s the legal name?

PN34

MS BREWSTER: The legal name is that which we’re seeking to change it to.

PN35

THE COMMISSIONER: And that was the legal name in 2005?

PN36

MS BREWSTER: Yes, it was.

PN37

THE COMMISSIONER: All right. So the employer - we’re talking about the employer now?

PN38

MS BREWSTER: Yes.

PN39

THE COMMISSIONER: So that was the name of the employer in 2005?

PN40

MS BREWSTER: Correct.

PN41

THE COMMISSIONER: And this - and it wasn’t reflected in the 2005 agreement?

PN42

MS BREWSTER: Correct.

PN43

THE COMMISSIONER: That I can accept. That submission I can accept. All right. Let’s drop back to the name of the - change to the title.

PN44

MS BREWSTER: So we wouldn’t like to make any submissions with regards to the variation of the title. After reading Lacy SDP’s decision we respect that the Commission doesn’t want to go ahead and change the name of the title of the agreement. We merely changed it just for ease of reference for the parties. So I guess in saying that any reference in the draft order or the entity agreement that we submitted that refers to 2008, we’re obviously happy for that to be changed back to 2005.

PN45

THE COMMISSIONER: Now, then let’s get to the wording “Australasia” because that’s another change, from our perspective. You see, the certification signed by Commissioner Harrison on 23 November 2005, he certified the Amcor Flexibles Regents Park Enterprise Agreement 2005 under AG2005/7450. That is the name and title of the agreement that is reflected within the Commission.

PN46

MS BREWSTER: Yes. And I was just speaking to your associate about it then. On all the documentation that we have with regards to 2005 document, it actually refers to Australasia in the title so I guess I’m unsure of why when it was certified with Commissioner Harrison why that Australasia was left out. So when we submitted this draft order to you, we actually went thinking that that was a variation because as far as we were concerned that’s actually what the title was.

PN47

THE COMMISSIONER: It isn’t.

PN48

MS BREWSTER: Yes.

PN49

THE COMMISSIONER: After all these years.

PN50

MS BREWSTER: I know.

PN51

THE COMMISSIONER: You only found out that’s not the agreement you have.

PN52

MS BREWSTER: So I guess in now realising that - - -

PN53

THE COMMISSIONER: A rose by any other name.

PN54

MS BREWSTER: Yes.

PN55

THE COMMISSIONER: All right. Look, to be honest, I did speak to my associate and I understand the issue. I don’t understand and I don’t know why but the difficulty is that what you call your agreement is not what - for better or worse not what we call your agreement.

PN56

MS BREWSTER: Yes.

PN57

THE COMMISSIONER: And any variation would be contrary to what his Honour determined with which I agree. So unless I hear submissions to the contrary I think the parties are just going to have to live with the way the Commission refers to their agreement.

PN58

MS BREWSTER: That’s fine, Commissioner.

PN59

THE COMMISSIONER: All right. Well, do you want to give me submissions on the requirements of the Act and what’s before me and what I have? We have addressed those issues now.

PN60

MS BREWSTER: To satisfy the Commission for the purposes of Schedule 7, Part 2, clause 2A(2)(a), all parties bound by the agreement genuinely agreement to the extension and variation.

PN61

The Commission should know that all 87 employees covered by the variation extension were given an opportunity to vote on 2 December 2008. Of the 79 employees who attended the vote 63 employees approved the agreement; 13 employees did not approve the agreement; and three employees abstained from voting. Therefore, a valid majority of employees who will be bound by the agreement genuinely agreed to the variation and extension.

PN62

To satisfy the Commission for the purposes of Schedule 7, Part 2, clause 2A(2)(b) that following 14 February 2008 none of the parties organised or engaged or threatened to organise or engage in industrial action in relation to another party to the agreement or apply for a protected action ballot under section 451 of the Act in relation to proposed industrial action. A written statement declaring this was provided to the Commission signed by Gavin Hardick, general manager operations for Amcor Flexibles - Regents Park, Paul Bastion, state secretary for the AMWU and Paul Sinclair, assistant secretary of the CEPU.

PN63

To satisfy the Commission for the purposes of Schedule 7, Part 2, clause 2A(2)(c) requiring that the agreement as varied would not result on balance in a reduction in the overall terms and conditions of employment of employees bound by the agreement a statutory declaration declaring this made by Mr Gavin Hardick, general manager operations for Amcor Flexibles - Regents Park dated 3 December 2008 has been provided to the Commission.

PN64

With regards to Schedule 7, Part 2, clause 2A(1)(a), applying to extend the nominal expiry date of the agreement, the application made seeks for the new expiry date to be 24 November 2011. This is less than three years from the date an order can be made.

PN65

Other than that, we have no further submissions.

PN66

THE COMMISSIONER: Thank you, Ms Brewster, for that.

PN67

On the material before me and on the basis of the submissions that have just been put during the hearing of the matter, I’m satisfied that the person making the application, Amcor Packaging (Australia) Pty Ltd trading as Amcor Flexibles Australasia - Regents Park is bound by the pre-reform certified agreement as required by clause 2A(1) of Part 2 of Schedule 7.

PN68

I am satisfied that the requirements of clause 2A(2)(a) of Part 2 of Schedule 7 have been met in that all the parties bound by the agreement generally agree to the extension and the variations.

PN69

Filed with the applications was the statutory declaration of Mr Hardick is in the hearing this morning, which was signed on 3 December. I have had regard to that material. I’m satisfied as required by clause 2A(2)(b) of Part 2 of the Schedule 7 that none of the parties have, after the introduction day, as defined by the Act, organised or engaged in or threatened to organise or engage in industrial action in relation to another party to the agreement or applied for a protected action ballot under section 451 in relation to the proposed industrial action. In this respect, I refer to the written statement signed by Mr Hardick and Mr Bastion, state secretary of the AMWU and Mr Sinclair, assistant secretary of the CEPU.

PN70

Pursuant to clause 2A(2)(c) of Part 2 of Schedule 7 I am satisfied that the agreement as varied would not result on balance in a reduction of the terms or conditions of employment of the employees bound by the agreement.

PN71

Further, I am satisfied as required by clause 2A(3) of Part 2 of Schedule 7 that the extension sought to the nominal expiry date of the agreement does not exceed three years after the date on which the order is made.

PN72

On the material before me, I am satisfied that the provisions of the Act have been met and therefore I will vary the agreement as sought with the amendments made during the proceedings; and further, I will extend the nominal expiry date of the agreement to 24 November 2011.

PN73

If there is nothing further I thank you for your attendance and your submissions in proceedings and the Commission stands adjourned.

<ADJOURNED ACCORDINGLY [4.03PM]