AG2002/85, Transcript of Proceedings [2002] AIRCTrans 1299 (18 April 2002)

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ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS


O/N WTO4620
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2002/85

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by the Shire of Victoria Plains for
certification of the Shire of Victoria
Plains (External Employees') Enterprise
Bargaining Agreement 2002

PERTH

10.00 AM, THURSDAY, 4 APRIL 2002

PN1

MR M. FITZGERALD: I appear on behalf of the applicant.

PN2

MS A. BALLANTYNE: I appear on behalf of the union.

PN3

THE DEPUTY PRESIDENT: Ms Ballantyne, this is a 170LK Agreement.

PN4

MS BALLANTYNE: I have just been made aware of that.

PN5

THE DEPUTY PRESIDENT: What are your intentions?

PN6

MS BALLANTYNE: Our intention is to actually seek to be bound to the document. We have been involved in negotiations since the institution of the document and we have had two representatives that have consistently been involved through it. I have only just been handed the file this morning and I am now just being made aware of the fact that we haven't made application to you in order to be bound to the document.

PN7

THE DEPUTY PRESIDENT: So you haven't complied with 170M?

PN8

MS BALLANTYNE: No, we haven't, I've just realised that, I wasn't aware - unfortunately I wasn't involved in negotiations.

PN9

THE DEPUTY PRESIDENT: Well, I think you're too late.

PN10

MS BALLANTYNE: Yes, I think I am too.

PN11

THE DEPUTY PRESIDENT: Perhaps I can hear from you Mr Fitzgerald?

PN12

MR FITZGERALD: Deputy President, the applicant has no objection at all to the union becoming bound by the agreement, if the Commission is of a mind to order so. But indeed this is an application under section 170LK of the Act, for certification of an enterprise bargaining agreement, between outside staff, or municipal employees as they are often referred to, of the Shire of Victoria Plains and the Shire. The agreement, sir, replaces a previous agreement which was a West Australian Workplace Agreement, registered with the Commissioner for Workplace Agreements in Perth. Before I go - - -

PN13

THE DEPUTY PRESIDENT: Is this the start of the alleged potential flow, is it?

PN14

MR FITZGERALD: That was the leak in the dam, sir, yes. When I was going through the paperwork shortly after lodging the application and the statutory declarations, I recognised that Mr John Watson-Bates, the employee representative, there were some statutory declarations tendered with his name on them, but in fact what had happened in the confusion at the Shire on the day of signing off on the documents, was that the Chief Executive Officer signed both statutory declarations. I have since managed to rectify that matter and I have, for the Commission's file today, three copies of Mr Watson-Bates' statutory declaration now properly signed by Mr Watson-Bates himself.

PN15

THE DEPUTY PRESIDENT: What, you expect me to go through this, this morning?

PN16

MR FITZGERALD: No sir. I drafted for both parties the statutory declarations and generally they read the same, so both parties were able to attest to the process in virtually the same terms.

PN17

THE DEPUTY PRESIDENT: Well, I will need to check through that statutory declaration, obviously. Is there anything else you want to outline or?

PN18

MR FITZGERALD: Sir, unless you want me to go into some detail about the various provisions of the agreement, I have checked this morning the cross-referencing within the agreement and I have been unable to find any errors in the cross-referencing, but I am prepared to stand corrected if there are some.

PN19

THE DEPUTY PRESIDENT: Well if I take you to the agreement there's a couple of questions I have. One is clause 15(5), it refers to clause 16(1), I'm presuming that's wrong.

PN20

MR FITZGERALD: Yes, that probably should be clause 15(1).

PN21

THE DEPUTY PRESIDENT: That's what we've noted. So the record stands, there's still yet to be an agreement that I certify that there is not an error in, bad luck.

PN22

MR FITZGERALD: Well perhaps if you put up a turkey for Christmas for the first one.

PN23

THE DEPUTY PRESIDENT: Well I think we will have some sort of celebration, but I am getting a bit wearisome of it. Clause 15.2.6, I assume you are referring to the Australian Industrial Relations Commission in that dispute settlement there?

PN24

MR FITZGERALD: Indeed, yes, sir.

PN25

THE DEPUTY PRESIDENT: Okay. Thanks Mr Fitzgerald. Ms Ballantyne, have you any submissions to make on your application I suppose, or intention to be bound by this agreement?

PN26

MS BALLANTYNE: My only submissions to be bound to the agreement is that in the stat decs that have been provided to you it quite clearly does show that we have been involved in negotiations, it was the intention of the parties involved that we were to be bound to it, unfortunately the people who were involved in negotiations have gone north and - - -

PN27

THE DEPUTY PRESIDENT: Well it doesn't actually say that, the stat dec that I have says, in item 4.2 is:

PN28

An organisation of employees notify the employer in writing that it wants to be bound by the agreement.

PN29

Now the stat dec that I have says, no.

PN30

MS BALLANTYNE: Then further on in 5.5, 5.6 sorry, it actually says, it talks about the notice being given, the 14 day's notice, and it states:

PN31

Your three employees you negotiate the agreement including me -

PN32

which is referring to the CEO:

PN33

- assisted by two union representatives took word from copy.

PN34

And as Mr Fitzgerald was also involved in it he would also attest that the fact the union has been very actively involved in negotiations through this document.

PN35

THE DEPUTY PRESIDENT: Well there's no doubt that the union has been involved, but the requirements of the Act are quite specific and they are that you notify the employer in writing prior to certification. You notify the Commission in writing prior to certification, that you wish to be bound by the agreement and failing those requirements being met, I don't think you can be bound by the agreement and unless you've got anything to support you in one way or another that the requirements of the Act have been met, unless you've got any submissions to make on that, other than from what I can glean from what you have already said, an admittance that the requirements of the Act haven't been met.

PN36

MS BALLANTYNE: I don't disagree with you, there should have been a formal letter written to people, I was just looking through the file that I've been given this morning to see if there was any notification to the employer, unfortunately there is nothing in writing in the file, so therefore I have no written information to give you that we have made application to the employer, or to yourselves.

PN37

THE DEPUTY PRESIDENT: Well, on that basis and if you've nothing further to add, which I gather you don't?

PN38

MS BALLANTYNE: I don't thank you.

PN39

THE DEPUTY PRESIDENT: It will be my intention, subject to me having the opportunity to check the statutory declarations that came in this morning, to certify the agreement as a section 170LK agreement without any additional parties being bound or named as bound by the agreement, reasons for not adding the parties is by virtue of the non-compliance with the requirements of the Act, which are quite specific as to how parties can be bound by the section 170LK agreements, those requirements not having been met I am not prepared to bind the union that is this morning seeking to be bound, they haven't done anything in writing, nor is there any evidence of the other requirements 170M.

PN40

In all respects it does comply with the requirements of the Act both in terms of the dispute settlements procedures, meeting the no disadvantage test and there being nothing in the agreement that would otherwise prohibit me from certifying it. So subject to me having the opportunity to check those statutory declarations, the agreement will be certified and the paper work will flow in due course, Mr Fitzgerald, with an operative date on and from - with it to come into force on and from today's date, which I gather is satisfactory.

PN41

MR FITZGERALD: Absolutely, thank you sir.

PN42

THE DEPUTY PRESIDENT: Okay, thank you Mr Fitzgerald. That matter is adjourned.

ADJOURNED INDEFINITELY [10.21am]