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C2001/ 1403 , Transcript of Proceedings [2001] AIRCTrans 579 (12 April 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 6594

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/ 1403 

APPLICATION TO VARY AWARD

APPLICATION UNDER SECTION 113(1) OF THE ACT
BY ADELAIDE BRIGHTON CEMENT LTD TO VARY GEELONG
CEMENT - THE AUSTRALIAN WORKERS UNION AWARD 1999

MELBOURNE

10.03 AM, WEDNESDAY, 28 MARCH 2001

PN1

MS S. ZEITZ: I seek leave to appear with MR HEALY for Geelong Cement in this matter.

PN2

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN3

THE COMMISSIONER: I presume there is no objection to leave?

PN4

MR WINTER: No, Commissioner.

PN5

THE COMMISSIONER: Leave is granted, Ms Zeitz. Thank you.

PN6

MS ZEITZ: Thank you, Commissioner. Commissioner, this is a matter, you might recall that you were involved in the negotiations that led to the agreement for the closure. The closure is still proceeding, there has been some delay in the closure being implemented. And what has occurred in relation to the programming of redundancy is that a number of employees are scheduled to be made redundant during May of this year. As part of the financial planning and management of that process, a number of them have received financial advice, and indeed it is the company's understanding and view that if those people are able to take leave until 30 June - - -

PN7

THE COMMISSIONER: There is a benefit, yes.

PN8

MS ZEITZ: - - - there is a benefit and it is quite a substantial benefit too, I understand, about 15 of my friends are members. The company has proposements with the consent of the AWU, that those employees that are scheduled to leave during May can elect to take leave to 30 June and be paid thereafter. Now, the provision under the award, and in particular sub-clause 25.1, provides that employees accrue their sick leave on the anniversary date of 1 June each year. And while that is not a problem for the company in terms of those employees who leave during June, they have reached agreement with the union that in relation to those employees who have elected to take leave but would otherwise have been redundant, that they will not accrue further sick leave on that date.

PN9

THE COMMISSIONER: Yes, I understand. Yes.

PN10

MS ZEITZ: And that is the sole purpose in effect of the proposed clause 25.1.6. Now, we do not understand that provision, because this is a two party award it has no greater implication beyond the direct parties. And certainly on my reading of the award simplification decision this is not an amendment that contravenes any of the award simplification principles, because it simply relates to the manner of accrual. And it is certainly not an issue that would, on my submission, take it outside any of the principles espoused by the Full Bench in that decision.

PN11

The Commission would be aware because there is a certified agreement in place that refers back to the award for the purposes of sick leave, so there is no difficulty there. And it was considered more appropriate to deal with it within the award than to try and introduce a variation to the agreement at this stage when a number of employees are already facing the prospects of redundancy as the closure takes effect. Now, in my submission, the award provision that we proposed does not contain provisions that is not an allowable matter, as I said it goes to accrual.

PN12

It does not impact on minimum entitlements of employees who will be rendering services as employees to the company. It simply seeks to essentially preserve and maintain people's existing entitlements as they elect to take the leave rather than to have their redundancy formally implemented. And in my submission it is appropriate that this provision be incorporated as a variation to the award. Commissioner, I don't know that there is much I can usefully add.

PN13

THE COMMISSIONER: No. Well, you have satisfied from my point of view, from the employer's side you have satisfied me and I will hear what Mr Winter has to say on behalf of the union. Mr Winter.

PN14

MR WINTER: Thank you, Commissioner. I support the submissions put forward. Clearly as you can see it is a consent matter. It is the proposed award variation is a benefit to my members. The award concerned is an in-house award, the AWU is the only one that is party to the award so it won't affect anyone else on site. The variation before you, when I was involved in some discussions my first thought was that we could have varied the agreement, but as my colleague has stated the agreement for sick leave purposes just refers back to the award, so that it was agreed that we would come before you and seek a variation to the award.

PN15

As my colleague has stated, the application is in line with the provisions of the Act and in relation to the simplification process. It is not a breach of those matters. And, therefore, we would seek to have the award varied to reflect the order that is before you. And bear in mind, Commissioner, that once the cement works close, this award will be terminated anyway, there will be no further need for it. If the Commissioner pleases.

PN16

THE COMMISSIONER: Yes. Thank you, Mr Winter. Well, the Commission is satisfied the parties have reached agreement. It is a consent matter and the employees in question are covered by Geelong Cement - The Australian Workers Union Award 1999, and it makes sense that what is being proposed by the parties will benefit the employees and not place them at any disadvantage. Accordingly, the Commission varies the Geelong Cement - The Australian Workers Union Award 1999 by varying clause 25 sick leave by inserting the new sub-clause 25.1.6 in the terms as set out in the application. The matter will have effect from today's date and remain in force for a period of six months. The Commission is adjourned. Thank you. Good morning.

ADJOURNED INDEFINITELY [10.11am]