AG2002/2553, Transcript of Proceedings [2002] AIRCTrans 2026 (5 June 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT04123
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2002/2553

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by the Transport Workers Union of Australia
and Another for certification of the Mayne
Logistics - Oxley (Transport Workers) Enterprise
Agreement 2002

MELBOURNE

10.34 AM, WEDNESDAY, 22 MAY 2002

PN1

MS J. TISDALE: I appear for the Transport Workers Union.

PN2

MS G. BARRO: I am from VECCI and appear on behalf of Mayne Nickless.

PN3

THE COMMISSIONER: Thank you, Ms Barro. Ms Tisdale?

PN4

MS TISDALE: Thank you, Commissioner. This is an application made under division 2 of Part VIB of the Workplace Relations Act for certification of an agreement made under section 170LJ. All of the requirements of the Act, regulations and rules of the Commission have been met in the making of this agreement except the requirement at section 170LM that requires an application to certify the agreement be made within 21 days of its approval. The agreement was approved on 12 March 2002 but not filed with the registry until 13 May making it about five weeks out of time.

PN5

The reasons for the delay were overwhelmingly administrative. And I understand that the company is in a position to provide advice that there has been no material or significant change to the composition of the workforce since the date - or between the date of the vote and the date of the filing. So, subject to that advice being received from the company, we would seek the Commission exercise its discretion under 111(1)(r) to extend the prescribed time limit. All of the other requirements of the Act have been met particularly in relation to section 170LT.

PN6

The agreement does pass the no disadvantage test. It was genuinely approved by a valid majority of relevant employees and the terms of the agreement were appropriately explained to those employees prior to the vote. There is a disputes settlement procedure at clause 10 and a nominal expiry date of 13 November 2003 at clause 5. The agreement is underpinned by the Transport Workers Award 1998 and the terms of the agreement are superior to the terms of that award particularly in relation to wage rates.

PN7

It is my understanding that only employees at grade 2 level are employed under this agreement and the agreement provides for rates of pay of $592.23. That compares to the current award rate for that grade of $462.50. So a significant increase above the award. The agreement largely - - -

PN8

THE COMMISSIONER: Can I just clarify that. Where does the exclusive employment of people under grade 2 appear in the agreement as one of its terms because I noticed that in the table of wage rates on page 6 there are actually rates prescribed for 10 grades of employees. Now, I am assuming that the agreement, given its relationship with the award, is referring to the grades in the award. Is that correct?

PN9

MS TISDALE: Yes, that is correct.

PN10

THE COMMISSIONER: Yes, well, it doesn't actually say that in the agreement but we will note that and in due course will get an undertaking to that effect because the agreement simply starts off with a clause 12 which has got a title, "Wages." And then, rather confusingly, says:

PN11

Subject to this enterprise agreement the following base wage increase shall apply.

PN12

And then it sets out the award rates and no doubt the award rates in existence as of today, is that right?

PN13

MS TISDALE: Actually, they are prior to the 1991 safety net increase. They are - - -

PN14

THE COMMISSIONER: All right, so there is a question as to whether or not they are actually the award rates in the table. That was another issue that I was going to raise with you. But then it sets out a rate from November 2002 of 592.23 applicable to grade 2. Now, my construction of the agreement is that there is nothing to prevent the employment of persons on all of those other award rates, and if those award rates are less than the rates adjusted for the current safety net adjustment, I would doubt whether it could be said that the agreement passes the no disadvantage tests.

PN15

MS TISDALE: That is - - -

PN16

THE COMMISSIONER: So we need to clarify how that table operates. And it seems to me that a better description of the intention of the agreement - and please correct me if I am wrong - is that it intends exclusively to regulate the employment of the employees on the basis that they are all and shall be for the life of the agreement employed as a grade 2 driver. And that only grade 2 drivers are regulated by the agreement.

PN17

MS TISDALE: I think it would be appropriate for an undertaking to be given in those terms and I think that certainly is the intention of the agreement. The - - -

PN18

THE COMMISSIONER: We don't want a situation where it is possible for someone to be employed at say, grade 3 or 4, on the award rate prior to this safety net adjustment for a period - over the next three years as being capable of - the agreement being capable of construction accordingly.

PN19

MS TISDALE: Yes, yes, I think - - -

PN20

THE COMMISSIONER: That is right. Is that the situation? That is the situation from the union's perspective?

PN21

MS TISDALE: Yes, that is correct.

PN22

THE COMMISSIONER: All right.

PN23

MS TISDALE: And the award rates there are generally - I think the intention was to provide an indicative amount of how far the employees under the agreement are - - -

PN24

THE COMMISSIONER: I see. So that information - - -

PN25

MS TISDALE: - - - in front of the award.

PN26

THE COMMISSIONER: - - - was largely for illustration?

PN27

MS TISDALE: Yes, that is correct.

PN28

THE COMMISSIONER: But the undertaking will be that the agreement applies to the employment of drivers at the level of grade 2.

PN29

MS TISDALE: Yes, we are happy to give that undertaking.

PN30

THE COMMISSIONER: All right, thank you. Now, are there any other issues where the terms of the agreement are different from the terms of the award?

PN31

MS TISDALE: No, Commissioner, the agreement really does replicate the terms and the structure of the award. It does provide for the possibility of a four day week or a nine day fortnight.

PN32

THE COMMISSIONER: But the award provides for that too, does it not?

PN33

MS TISDALE: It - yes, it does, actually.

PN34

THE COMMISSIONER: On my recollection, it does.

PN35

MS TISDALE: It does. The work can be averaged over a cycle - - -

PN36

THE COMMISSIONER: That is right.

PN37

MS TISDALE: - - - not necessarily 38 - - -

PN38

THE COMMISSIONER: Well, in any event, the number of hours prescribed by these cycles is the same as the number of ordinary hours prescribed by the award?

PN39

MS TISDALE: That is correct.

PN40

THE COMMISSIONER: Good, thank you. Ms Barro, did I describe the nature of the agreement correctly when I was referring to what I perceived to be some confusion caused in the wages provisions?

PN41

MS BARRO: Unfortunately I don't have a huge knowledge of the agreement.

PN42

THE COMMISSIONER: Right.

PN43

MS BARRO: I can seek further instructions.

PN44

THE COMMISSIONER: All right. Well, perhaps I will just ask for the undertaking that I have sought to be confirmed in writing.

PN45

MS BARRO: Okay.

PN46

THE COMMISSIONER: I will clarify it again. And that is that the parties actually reached an agreement to apply to the employment of persons as drivers in the classification grade 2 as prescribed in the award and that their agreement was that those persons would be paid at the rate of $592.23 per week. And I take it - is that for the life of the agreement?

PN47

MS BARRO: Yes, it is only a one year agreement. It expires in November next year.

PN48

THE COMMISSIONER: Yes, that is right and that is for the life of the agreement. So, could you confer with Ms Tisdale and formulate an appropriate undertaking that both of the parties could record for the file, please.

PN49

MS BARRO: Sure.

PN50

THE COMMISSIONER: I will assume that that undertaking has been given for the time being and indicate my intention to certify the agreement accordingly. I extend the time for lodgment of the application and I am satisfied that, subject to the undertaking foreshadowed, that the agreement passes the no disadvantage test and it was otherwise made as required by the Act.

PN51

MS BARRO: Thank you.

PN52

THE COMMISSIONER: I beg your pardon. I should say that the order will operate from today's date and remain in force for the life of the agreement prescribed by its terms which will be until 13 November 2003. And I note that the agreement provides in clause 10 a dispute settlement procedure as required by the Act. Thank you.

ADJOURNED INDEFINITELY [10.44am]