AG2002/3694, Transcript of Proceedings [2002] AIRCTrans 3366 (3 September 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT05373

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2002/3694

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by TTI Stone Pty Limited for certification
of the TTI Stone Pty Limited Certified
Agreement 2001-2004

MELBOURNE

11.30 AM, THURSDAY, 15 AUGUST 2002

PN1

MR D. RENEHAN: I seek leave to appear for the company, TTI Stone Proprietary Limited with MR B. BARKER, a representative of the company.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Leave is granted. Go ahead.

PN3

MR RENEHAN: Your Honour, perhaps if by way of introduction this matter is there has been a significant amount of time has lapsed from when the agreement was actually made and then subsequently brought to the Commission. Perhaps by way of introduction if I might be able to give an explanation as to what occurred. I am also mindful that there was a letter sent to the company on 26 July that I have just viewed this morning. At the outset is that when I was advising the company about this process I was with another organisation which was called the Building Construction Industry Association which is a derivative of the Master Painters Association of which TTI was a member of.

PN4

Subsequent - that was around about the time that I left and it was only in the process of the last month or so that through discussion with the company that they have obviously asked well, what happened to the agreement we produced - or you produced on our behalf - and hence I have managed to get the documentation and process it. There was also a note that was made on this letter to the company in relation to the date of the agreement. This is generally a six day operation where it is not uncommon for the people to work on Saturdays and as such is that when the date of the agreement was made on 5 January, which was a Saturday - which I believe your associate picked up - that was the day that the employees met and decided on that.

PN5

THE SENIOR DEPUTY PRESIDENT: I had noted that 5 February was actually a Tuesday and the documents appear to have been signed on 6 February so I - - -

PN6

MR RENEHAN: Sorry, 6 February.

PN7

THE SENIOR DEPUTY PRESIDENT: Sorry, it says 5 January in the stat dec. 5 February was a Tuesday and the documents were signed on 6 February so I was wondering whether that had been the error.

PN8

MR RENEHAN: I think that the confusion at the time, your Honour, was I suppose wholly and solely from my point of view and I think that just perhaps looking at it actually it is February and not January as what was suggested in that note that was put forward. Is that - - -

PN9

THE SENIOR DEPUTY PRESIDENT: So what date was the agreement made?

PN10

MR RENEHAN: The agreement was made on 6/2 which is 6 February. I understand the statutory declaration was also prepared on that date also 6/2.

PN11

THE SENIOR DEPUTY PRESIDENT: So you say the agreement was made on the date it was signed?

PN12

MR RENEHAN: The agreement was on the date of the signing.

PN13

THE SENIOR DEPUTY PRESIDENT: The agreement was signed by the Managing Director on 6 February. Are you saying that is the date upon which it was made?

PN14

MR RENEHAN: That is right.

PN15

THE SENIOR DEPUTY PRESIDENT: And to that extent the statutory declarations therefore are wrong?

PN16

MR RENEHAN: In relation to that note, your Honour. Your Honour, also there was a request as to what documentation was prepared prior to this and what information did the company prepare for its employees. I only have one copy but if I could hand up - but I have managed to get a copy from the gentleman that signed the agreement and that was late last year when the first discussions occurred was to see that - or to inform them that they wished to enter into an agreement.

PN17

THE SENIOR DEPUTY PRESIDENT: I will mark that as R1.

EXHIBIT #R1 NOTE

PN18

MR RENEHAN: Your Honour, this morning the application is pursuant to section 170LK, an agreement with employees under division 2 of the Workplace Relations Act. I ask that the Commission takes into consideration that there has been an agreement where there has been consultation that has existed between the employees and management. A representative was subsequently elected by the employees. They in essence modelled themselves off another agreement that is - or has been processed through the Commission in the past and in essence is that the only changes was in relation to the company's name compared to that other previous agreement gone before the Commission.

PN19

There is nothing within the agreement that - from my assessment that contravenes or is a disadvantage to employees and in actual fact is that it builds upon the award in relation to this matter. Your Honour, on that basis is that we ask that firstly if the Commission could use its discretion pursuant to section 111(1)(r) in relation to the time delays and as I mentioned at the outset is that through my errors. As I have found out this morning there has been no change to the composition of the workforce since this agreement was reached early in the year.

PN20

THE SENIOR DEPUTY PRESIDENT: If you go to the stat decs, Mr Renehan, in particular the answer to question 5.8. Have you got that there?

PN21

MR RENEHAN: Yes. Yes, I have, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: The answer there given is that the requirements of section LK(4) don't appear to have been met. You handed up the notice today. Are you saying that that meets the requirements of section 170LK(4)?

PN23

MR RENEHAN: That is my understanding, your Honour, but I am happy to be guided from yourself.

PN24

THE SENIOR DEPUTY PRESIDENT: You see, the difficulty is - and there have been decisions on this in the past - that unless the notice contains what is required by sub-section (4) then there hasn't been compliance. If there hasn't been compliance then the application can't be processed.

PN25

MR RENEHAN: Yes, I understand that.

PN26

THE SENIOR DEPUTY PRESIDENT: Do you wish to make any submissions in relation to that because it is something I will need to reflect on and look at this?

PN27

MR RENEHAN: No, certainly. No, I am happy to be guided by yourself, your Honour, on that one.

PN28

THE SENIOR DEPUTY PRESIDENT: Is there anything else you wish to put before me?

PN29

MR RENEHAN: No, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Well, I will reserve my decision in relation to the matter and consider what has been put to me this morning and the material that is now before the Commission and advise the parties in due course as to the outcome of that deliberation.

PN31

MR RENEHAN: Thank you, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned on that basis. The Commission itself is adjourned.

ADJOURNED INDEFINITELY [11.39am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 NOTE PN18