AG2002/107, Transcript of Proceedings [2002] AIRCTrans 1762 (22 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N WAT0 4769

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG 2002/107

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act by Western Australian Trotting Association for certification of the Western Australian Trotting Association Tote Operations Enterprise Agreement 2002

PERTH

3.28 PM, WEDNESDAY, 8 MAY 2002

MS M. KUHNE: I appear for the applicant.

THE DEPUTY PRESIDENT: Would you like to commence.

MS KUHNE: Thank you, sir. Your Honour, this is an application pursuant to section 178LK of the Workplace Relations Act for the certification of an agreement between the WA Trotting Association and its employees. The agreement, we say, does meet all the requirements of the Act. It does specify a nominal expiry date of 2 years from the date of certification by the Commission. And it does contain a dispute settlement clause. Now, sir, in specific reference to section 170LI, we do submit, sir, that the agreement is an agreement in writing about matters that do pertain to the employment relationship between the WA Trotting Association and its tote operators.

Your Honour, the WA Trotting Association has previously had two agreements, two agreements certified under this section of the Act for tote operators. And on those two previous occasions the Commission has also sought supporting submissions as to whether the Trotting Association is a constitutional corporation. And to briefly summarise our submission on that particular point, we submit that the Trotting Association is a constitutional corporation. The definition of a constitutional corporation does include, and if I quote from section 4 of the Act, sir:

A body corporate that is, for the purposes of paragraph 51.20 of the Constitution, a financial corporation formed within the limits of the Commonwealth.

The WA Trotting Association is an incorporated body under the WA Trotting Association Act of 1946 to 1948. It receives over 95 per cent of its income from the TAB as a result of the trotting meetings held by the WA Trotting Association. Our submission, sir, is that the income generated from the trotting meetings constitutes trading activities and as such defines or describes the WA Trotting Association as a trading corporation for the purposes of the Workplace Relations Act. So, in that respect, sir, we say that it does meet the definition of a constitutional corporation. In respect of the other provisions of the Act, sir, we say it is quite clear from the Act that section 170LK requires that the agreement be made with a valid majority of employees.

Your Honour, all casual employees who are covered or have been covered by the previous agreements and will be covered by this agreement were provided with a copy of the agreement. The 83 employees who are covered were provided with individual copies of the agreement. Employees were advised of the intention to make an agreement and were invited to attend a meeting to discuss it. And that meeting did place, sir, on 15 March of this year. Now, the notice also explained to employees that if an employee was a member of a union, that they may request union representation. And if an employee so requested the Trotting Association, then they would have provided such a union with a reasonable opportunity to meet and confer before the agreement was made.

However, no such request was made. The notice explained that the terms and conditions contained in the agreement were open for discussion and should the majority of employees wish, the trading association was happy to work with a group of employees reps to further development agreement and, in fact, did work with - as you know, sir, from the other statutory declaration that has been filed, did work with Ms Wynne to finalise the agreement. The notice of intention to make an agreement was handed out and posted to employees and a staff meeting was convened on 15 March at which time Mr Coleman, the Operations Manager who has completed the statutory declaration on behalf of the employer, did explain the provisions of the agreement and answered staff questions.

So, your Honour, we submit that the agreement passes the no disadvantage test, as the terms of the agreement are based on the award. The agreement essentially increases the wage rates for employees covered by the agreement. So, with that, sir, we submit that the agreement meets all of the requirements of the Act and we request that it be certified on and from today's date. And those would be my submissions, sir. If you have no questions, I would leave it at that.

THE DEPUTY PRESIDENT: No questions. No, indeed, Ms Kuhne, that was a full explanation. So, thank you for that. Indeed, as you noted in your remarks that this an application pursuant to Part VIIB, Division 2, section 170LK of the Workplace Relations Act 1996 to certify an agreement to be known as the Western Australian Trotting Association Tote Operations Enterprise Agreement 2002. Having heard Ms Marsha Kuhne on behalf of the Western Australian Trotting Association, having read the statutory declarations of Mr Frank Coleman on behalf of the Western Australian Trotting Association and Ms Jan Wynne on behalf of the employees, and having received correspondence from Mr Frank Coleman confirming that this agreement will replace the Clerks Racing Industry Betting Award 1978, which regulates the terms and conditions of employment of employees covered by this agreement, I am satisfied that the agreement filed relates to a constitutional corporation as defined in the Act, to include a body corporate.

That is, for the purposes of paragraph 51 placitum 20 of the Constitution, a trading corporation. I am satisfied that the Western Australian Trotting Association is a trading corporation. I am also satisfied as to the following. The agreement passes the no disadvantage test. The agreement was made in accordance with section 170LK and a valid of majority of persons employed at the time whose employment would be subject to the agreement, genuinely approved the agreement. The explanation of the terms of the agreement was appropriate. The agreement includes procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement. And the agreement specifies a nominal expiry date not more than 3 years after the date on which the agreement will come into operation. I am further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, the agreement will be certified with effect from 8 May 2002 to operate in accordance with its terms from the same date. The formal certificate will issue in due course. These proceedings are adjourned.

ADJOURNED INDEFINITELY [3.37pm]