AG2002/1492, Transcript of Proceedings [2002] AIRCTrans 1475 (2 May 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2002/1492

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Federal Express (Australia) Pty Limited
for certification of the Federal Express
(Australia) Pty Limited Certified Agreement

SYDNEY

9.34 AM, THURSDAY, 18 APRIL 2002

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: May I have the appearances in this matter.

PN2

MS E. FERRIER: If it please the Commission, I seek leave to appear for Federal Express (Australia) Pty Limited and with me at the bar table is MR P. BROWN, solicitor, and MS R. ALLIADAMANI from Federal Express.

PN3

MR M. KAINE: If the Commission pleases, I am from the Transport Workers Union of Australia and with me MR T. O'DONNELL also of the union.

PN4

THE SENIOR DEPUTY PRESIDENT: Leave to is granted to you to appear, Ms Ferrier. Mr Kaine, what role do you wish to play this morning.

PN5

MR KAINE: Yes, thank you. The union under 170M(3) of the Act requests the Commission to order that the Transport Workers Union of Australia be an organisation bound by the agreement which is sought to be registered today. The union has at least one member whose employment would be subject to the agreement and whose industrial interests the union is entitled to represent in relation to the work that is the subject of the agreement and members of the union requested the organisation to give notification which has been given to the employer and to the Commission prior to the ballot taking place.

PN6

THE SENIOR DEPUTY PRESIDENT: I might just for the transcript identify the document relevant to this matter which is on the Commission file and that is a letter from the TWU to the Registrar dated 12 March 2001 and entitled "A notification under 170M(3)(c) of the Act, wanting to be bound by a proposed section 170LK agreement". I won't read into transcript the whole of that letter. A copy of the letter appears to have been forwarded to Ms Alliadamani at Federal Express, well, that is the only letter from your union on the file do you think there should be anything else, Mr Kaine?

PN7

MR KAINE: If, as I understand it, our application for this order is not opposed then we won't seek to put anything else on the file.

PN8

THE SENIOR DEPUTY PRESIDENT: No, that's all right, there's nothing else that you thought would have been on file, that's right, yes.

PN9

Ms Ferrier, what do you say about Mr Kaine's submissions.

PN10

MS FERRIER: Your Honour, we recognise that the union has a right to seek to be bound by the agreement and we don't oppose it in any way.

PN11

THE SENIOR DEPUTY PRESIDENT: So assuming that the agreement is certified you seek an order that you be bound and that is all that you seek this morning, Mr Kaine?

PN12

MR KAINE: That is correct.

PN13

THE SENIOR DEPUTY PRESIDENT: You do not seek to be heard in relation to the submissions Ms Ferrier will be required to make, that is as to whether I should certify it at all.

PN14

MR KAINE: No, we don't.

PN15

THE SENIOR DEPUTY PRESIDENT: Very good, well, that seems to be no other matter to attend to then. Ms Ferrier?

PN16

MS FERRIER: Thank you, your Honour. This is an application under section 170LK of the Workplace Relations Act for the certification of Federal Express (Australia) Pty Limited Certified Agreement. We rely upon the statutory declaration signed by Ms Rana Alliadamani who is the human resources manager of the Federal Express and was signed by her on 12 March 2002. In particular we also note the following points.

PN17

The employer, Federal Express (Australia) Pty Limited, is a constitutional corporation and the agreement is to cover employees in the linehaul and sort operations and the bond, these parts of the business are distinct operational or organisational units within the single business as required by the Act. The agreement was genuinely made with a valid majority of persons employed at the time whose employment will be subject to the agreement.

PN18

The steps taken by Fedex to give all employees to be covered by the agreement the opportunity to decide whether they wanted to make the agreement is set out in clause 5.1 of Ms Alliadamani's statutory declaration. These steps included a copy of the proposed certified agreement was provided to all employees in a series of work group meetings held between the 14th and 20 February 2002, consequently employees were provided with the agreement at least 14 days prior to the ballot. A copy of the notice of intention to enter into the certified agreement as required by the Act was also provided to employees and I will hand up a copy of that now.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, this is a document required to be issued under the Act and I think it is appropriate that it be marked as an exhibit, it bears no date I think, Ms Ferrier.

PN20

MS FERRIER: Yes, your Honour, it is undated, it is attested though in the statutory declaration that was provided to employees between the 14th and 20 February.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, I was looking at that, was it either of those days or just between.

PN22

MS FERRIER: It was between those days. The nature of the shifts that are worked means that not everyone covered by the agreement were within the workplace on the same day.

PN23

THE SENIOR DEPUTY PRESIDENT: Were some given it on the 14th and some on the 20th, are they your instructions.

PN24

MS FERRIER: Yes, and each one.

PN25

THE SENIOR DEPUTY PRESIDENT: All right, but no one received it later than the 20th?

PN26

MS FERRIER: That's right, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you, and returning back to the document that you just handed to me titled, General Announcement To Staff, I will mark that FEDEX 1.

EXHIBIT #FEDEX1 GENERAL ANNOUNCEMENT TO STAFF

PN28

MS FERRIER: Thank you, your Honour. As you will see, your Honour, the notification included the provision that any person who wished to be represented by an organisation of employees could request that organisation to represent them in any meeting and conferring in relation to the agreement. In order to clarify any issues in relation to the proposed agreement work group meetings were held with employees between Wednesday, 6 March and Friday, 8 March 2002.

PN29

A further communication was sent to employees by email and also displayed on the company's noticeboard in relation to a concern raised by the Transport Workers Union which concerned an unrelated issue of back pay in relation to an award breach and how that might relate to the outcome of the ballot. Employees were also advised that if they had any questions in relation to the proposed certified agreement that these could be discussed either with their manager or relevant human resources representatives.

PN30

At this point, your Honour, I would just like to draw your attention to some undertakings that have been made to the employees. During the course of the discussions with employees a concern was raised in relation to the ability of Fedex to alter the shift pattern worked by employees, in other words, the employees were concerned that the agreement permitted Fedex to alter their four day roster to a five day roster without their consent.

PN31

This was not the intention of Fedex and in order to address this issue Fedex wrote to each employee and provided an undertaking that any existing linehaul sort operation or bond employees at the time of certification of the agreement would not have their four day shift pattern altered to a five day pattern without their consent. We would like to hand up copies of these letters and ask that they be placed on the file and in doing so we recognise and accept that the acceptance of the agreement was to some extent based on this undertaking provided to employees.

PN32

THE SENIOR DEPUTY PRESIDENT: I think I might mark them, Ms Ferrier. I don't understand that they are to form undertakings required by the Commission given to the Commission, but nonetheless they might be important in the event of any industrial issues arising under the agreement.

PN33

MS FERRIER: Yes, and that's the purpose for handing them up, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Then this bundle of documents the contents of which I will identify will become exhibit Fedex 2, and they will be placed on this file. Is there a description you can give the bundle without me going through each one of the letters and identifying the date, Ms Ferrier.

PN35

MS FERRIER: They are letters to reach employees who will be bound by the agreement should it be certified undertaking that Fedex will not alter their four day shift pattern to a five day shift pattern without their consent.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, thanks very much. Each dated the same day, 6 March.

PN37

MS FERRIER: Yes.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, that's adequate, thank you.

EXHIBIT #FEDEX2 LETTERS EMPLOYEES BOUND BY THE AGREEMENT

PN39

MS FERRIER: In relation to union involvement in the discussions and lead up to the agreement have noted above the notice of intention to employees to enter into a certified agreement provided that any employee who is a member of an industrial organisation could request that organisation to represent the employee in any meeting and conferring in relation to the agreement.

PN40

In the lead up to the ballot, although Fedex was not formally advised of any request by an employee for an organisation to represent them Fedex was approached by the TWU, the Transport Workers Union, who sought to have discussions with the company in relation to the proposed agreement. The company participated in those discussions and also in conciliation in relation to a dispute which was notified to the New South Wales Industrial Commission which centred on the agreement. The matter was conciliated before Commissioner O'Connor. We also note that the Transport Workers Union has written to both the company and the Commission seeking to become a party of the third party agreement and that has been addressed by your Honour.

PN41

In relation to the valid majority, your Honour, it is our submission that a valid majority did approve the making of the agreement. In this regard a secret ballot was conducted on Sunday, 10 March, and Monday, 11 March, 2002. Price Waterhouse Coopers managed the ballot and the counting of the ballot was also observed by employee representatives from the line haul and sort operations and the bond through an employer who will be covered by the agreement. I will hand up a copy of Price Waterhouse Coopers report in relation to the ballot.

PN42

THE SENIOR DEPUTY PRESIDENT: The letter to the directors of Federal Express from Price Waterhouse Coopers dated 11 March 2002 will become exhibit Fedex 3.

EXHIBIT #FEDEX 3 LETTER TO DIRECTORS OF FEDERAL EXPRESS FROM PRICE WATERHOUSE COOPERS DATED 11/03/2002

PN43

MS FERRIER: Thank you, your Honour. You might just note, your Honour, that on page 3 are the results of the ballot which indicate that a valid majority approved the making of the certified agreement. In relation to the no disadvantage test, the parent award in this matter is the Transport Industry State Award, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: One more word, Consolidated Award, a copy of which I have with me in court.

PN45

MS FERRIER: It seems to depend on which internet site you go to, your Honour, it seems to vary its name.

PN46

THE SENIOR DEPUTY PRESIDENT: I see, all right, I understand.

PN47

MS FERRIER: In any event, your Honour, it is our submission that certification would not on balance result in a reduction in the overall terms and conditions of employment of employees covered by the agreement. You will note, your Honour, that this is really a single issue agreement focussed towards the method of shift patterns which these employees work.

PN48

The purpose for entering into the certified agreement was to allow employees to continue to work a four-day a week, 9.5 hour day roster without breaching the relevant award. The certified agreement in this regard allows for employees to work a four-day week which allows them to better accommodate their outside working trips and it is a method of working which is supported by the employees. For these reasons on balance we would say that the agreement does pass the no disadvantage test.

PN49

In relation to the other requirements of the Act, the agreement provides for a procedure for preventing and settling industrial disputes at clause 6 and also specifies a nominal expiry date at clause 3 as being three years from the date of certification. It is our submission that the agreement satisfies all the requirements under section 170LT of the Act and that the Commission can be satisfied that there is no reason in section 170LU of the Act which would compel the Commission to refuse to certify the agreement. In this regard we commend it to you, your Honour, for certification.

PN50

THE SENIOR DEPUTY PRESIDENT: Ms Ferrier, the statutory declaration lodged by Ms Alliadamani and the agreement both provide for the agreement to remain in force for a period of three years from certification. Exhibit Fedex informed employees that the term of the agreement will be from 11 March 2002 to 11 March 2005. I would be reluctant to give the agreement a period of operation that is at odds with that which was represented to the employees in Fedex. Do you wish to take instructions on that?

PN51

MS FERRIER: Your Honour, we would not oppose a finding that the agreement should apply to 11 March 2002. There is certainly no intention to mislead employees.

PN52

THE SENIOR DEPUTY PRESIDENT: No, I am not suggesting there was, it is just the extent to which this one identifies calendar days with some precision and the other one says three dates from the date of certification, which the employees weren't to know when I would have this listing. My inclination would be to go with the date that they were told about with some certainty.

PN53

MS FERRIER: We would certainly support that, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Kaine, I would not have thought it appropriate or indeed probably I would be constrained under the Act to allow you to address me at all. Do you want to put some submission contrary to that?

PN55

MR KAINE: No, I don't, your Honour, but if you would just let me say this, that the union takes a neutral view on the submissions that have been made.

PN56

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Based on the statutory declaration lodged in support of this application and the submissions made before me by Ms Ferrier and the exhibits that have been tendered, I have formed the view that each of the relevant requirements of the Act have been met and the agreement to be known as the Federal Express Australia Pty Ltd Certified Agreement will be certified. It will come into operation from today's date, 18 April 2002, and remain in operation until 11 March 2005.

PN57

A certificate will issue in due course and a copy will be provided to Fedex but additionally a copy will be provided to the TWU as I have formed the view consistent with section 170M(3) that there is an application made under Division 2 that it has been made in accordance with section 170LK and a valid majority have made it with the employer that before it was certified by me today the TWU notified the Commission and the employer in writing that it wanted to be bound by the agreement and I am satisfied that the TWU has at least one member whose employment will be subject to the agreement and whose industrial interests the organisation is entitled to represent and who has requested the organisation to give the notification.

PN58

I propose to issue an order pursuant to section 170M(3) that the agreement I have now certified binds the organisation. A copy of that will be forwarded to the TWU and Fedex as well in due course. Is there anything more we need to do this morning, Ms Ferrier?

PN59

MS FERRIER: No, your Honour.

PN60

MR KAINE: No, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

ADJOURNED INDEFINITELY [9.44am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FEDEX1 GENERAL ANNOUNCEMENT TO STAFF PN28
EXHIBIT #FEDEX2 LETTERS EMPLOYEES BOUND BY THE AGREEMENT PN39
EXHIBIT #FEDEX 3 LETTER TO DIRECTORS OF FEDERAL EXPRESS FROM PRICE WATERHOUSE COOPERS DATED 11/03/2002 PN43