AG2002/224, Transcript of Proceedings [2002] AIRCTrans 3656 (19 September 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

WT05315

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2002/224

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by BOS Australia Pty Ltd and Others for
certification of the BOS Australia Pty Ltd Fabrication
Facilities Enterprise Bargaining Agreement
2002-2003

PERTH

12.08 AM, WEDNESDAY, 4 SEPTEMBER 2002

PN1

MR T. DOBSON: I appear on behalf of Bos Australia Pty Ltd.

PN2

THE DEPUTY PRESIDENT: Thank you Mr Dobson.

PN3

MS F. BENNETT: I appear on behalf of the Automotive Food Metals Engineering Printing and Kindred Industry Union of Workers.

PN4

THE DEPUTY PRESIDENT: Thank you Miss Bennett. Mr Dobson?

PN5

MR DOBSON: Yes, Mr Commissioner. This is an application that has been made by Bos Australia Pty Ltd in accordance with Division 2 of the Act which deals with agreements made with constitutional corporations. Specifically the agreement has been brought to the Commission via section 170LJ which is an agreement between the company and an organisation of employees, being that union commonly referred to as the AMWU but otherwise registered by another name. The agreement covers the workshop facilities of BOS Australia which is located in Kwinana and the Commission has before it statutory declarations from both the employer and the union dealing with those procedural matters as required.

PN6

I would submit in general that the agreement, as the Commission would see from the paper work, has been confirmed by a valid majority of employees engaged at the workshop and that those employees were provided with the necessary access to the agreement prior to taking their vote on the matter. The Commission would observe from the details of the agreement that it operates in conjunction with the State Metal Trades Award General and we submit that there are no difficulties in respect to the no disadvantage test.

PN7

There are no provisions, we submit, in the agreement which are discriminatory, nor which are offensive to the Act. There is a disputes procedure provided and the agreement will operate until 30 June 2003. I might say that we have been pleased in the passage of negotiations on the agreement between the company and the union officials and we would ask, Commissioner, that you would proceed to certify this agreement, if it please the Commission.

PN8

THE DEPUTY PRESIDENT: Thank you Mr Dobson. Just one question. You mention the statutory declarations which were filed.

PN9

MR DOBSON: Yes.

PN10

THE DEPUTY PRESIDENT: By both the company and the union. I refer to the statutory declaration filed by the union and I take you to questions 6.4, 6.5 and 6.8. The answers to those questions respectfully if you have them there in front of you were for 6.4, the answer was "No", and for the question 6.5, the answers were "No" and that relates, of course, to the requirements of section 170LT(7). And then if we proceed to question 6.8, we have an answer given which is "Yes". Now, given that that answer is different from the answer, if we turn to the employer statutory declaration, the answer to question 6.8, if you have the employer statutory declaration handy.

PN11

MR DOBSON: Yes, that is right.

PN12

THE DEPUTY PRESIDENT: The answer was "Not required".

PN13

MR DOBSON: I think, with respect, Commissioner, it simply reflects the fact that the assessment of both the union and the employer has been that there have been no requirements to deal with any special circumstances of the work force down at the work shop. I can confirm that of the 24 they are certainly long-term fabrication workers and I believe that that is simply the reason why you find a difference in terminology used but I would certainly confirm the position of the union if the union has any comment to make of its own.

PN14

THE DEPUTY PRESIDENT: Miss Bennett, do you have any comment?

PN15

MS BENNETT: Thank you sir. Just in relation to Mr Dobson's submissions, we do concur with them and I believe we have answered your queries in relation to your facsimile of 22 August. We have addressed the queries that you have raised. Sir, you have asked for explanation in relation to the clause of our statutory declaration, in particular clause 6.5 which we have outlined. There is no people falling into the categories of this provision. Sorry, sir, what was it you wanted further clarification on?

PN16

THE DEPUTY PRESIDENT: Look it is only a small point but I just thought I would take the opportunity in this hearing to confirm directly with you that, in fact, that pursuant to your statutory declaration - when I saw yours, I mean the unions.

PN17

MS BENNETT: Correct.

PN18

THE DEPUTY PRESIDENT: At 6.8. In fact, given that, as I understand it from the previous answers, that there were no persons with particular circumstances and needs - for example, women - persons with a non-English speaking background, hence there was no need for an explanation to be given of the agreement to such persons. I was just thinking your confirmation that I have interpreted the answer to 6.8 correctly, given that it was different.

PN19

MS BENNETT: Correct sir.

PN20

THE DEPUTY PRESIDENT: As an answer to the employer.

PN21

MS BENNETT: That is correct, yes.

PN22

THE DEPUTY PRESIDENT: Thank you.

PN23

MS BENNETT: Thank you.

PN24

THE DEPUTY PRESIDENT: Mr Dobson, any further questions?

PN25

MR DOBSON: I have no further matters to raise, Commissioner. Thank you.

PN26

THE DEPUTY PRESIDENT: All right. I now turn to - to certify the agreement as per the process but I would like to thank the parties for their responses to the facts which did indeed answer the queries that were raised.

PN27

This is an application pursuant to Part VIB Division 2 section 170LJ of the Workplace Relations Act 1996 to certify an agreement to be known as the BOS Australia Pty Ltd Fabrication Facilities Enterprise Bargaining Agreement 2002/2003. Having heard Mr T. Dobson on behalf of BOS Australia Pty Ltd and Miss F. Bennett on behalf of the Automotive Food Metals Engineering Printing and Kindred Industries Union AMWU and having read the statutory declarations filed by Mr T. Dobson on behalf of BOS Australia Pty Ltd and Mr C. Saunders on behalf of the AMWU, I am satisfied the agreement filed relates to a constitutional corporation, namely BOS Australia Pty Ltd, ACN 009180616.

PN28

I am satisfied that the AMWU has at least one member employed in the part of a single business to which the agreement relates and is entitled to represent the industrial interests of the member. I am also satisfied as to the following. The agreement passes the no disadvantage test. The agreement was made in accordance with section 170LJ and a valid 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.

PN29

The agreement includes procedures for preventing and settling disputes between the employer and the employees whose agreement - I correct that, whose employment would be subject to the agreement and the agreement specifies a nominal expiry date of not more than three 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 4 September 2002 to operate in accordance with its terms from the same date. The formal certificate will issue in due course. We will now adjourn.

ADJOURNED INDEFINITELY [12.13pm]