AG2002/4323, Transcript of Proceedings [2002] AIRCTrans 3782 (25 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT05680

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2002/4323

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Transport Workers' Union of
Australia and Another for certification
of the Transport Workers Bedggood's
Transport Pty Ltd Enterprise Agreement
2002

MELBOURNE

11.36 AM, TUESDAY, 10 SEPTEMBER 2002

PN1

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

PN2

THE COMMISSIONER: Yes, thank you, Ms Tisdale. No appearance on behalf of the employer?

PN3

MS TISDALE: No.

PN4

THE COMMISSIONER: Yes.

PN5

MS TISDALE: Thank you, Commissioner. Commissioner, I understand this agreement does contain provision for a bargaining agent's fee at clause 18D and certainly the authority in this area is perhaps, in my view, rather confused at the moment. I understand there has been an indication that you would not feel comfortable certifying the agreement in this form today.

PN6

THE COMMISSIONER: No. Let us clarify. Ms Tisdale, it is not that I had said I would not certify. What I have relayed to you prior to coming in through my associate is that there is a clause in the agreement, there is quite a few decisions that have been issued, some single members in relation to a clause like this, some decisions at single member and full bench level in relation to union dues clauses and also while not being addressed, the bargaining agent's fee was subject to a single member decision and Full Bench in Accurate Factory Enterprise Agreement although the full bench in that particular decision while seeking submissions on the point as to whether that particular provision pertained to the relationship of employee, employer as required under section 170LI, if my memory serves me correct, although that full bench didn't necessarily address the question because that wasn't really argued in detail before them and also the parties sought that they not determine the matter.

PN7

So I would hear any submission on the point, most definitely, but I did wish to raise with you that it would be a subject that I would raise. So that clarifies that particular point. So it just remains as into what you want me to do in regards to the application.

PN8

MS TISDALE: All right. Well, in relation to this clause, we would say that the agreement as a whole certainly relates to the relationship between employer and employee and from our perspective, there is nothing inappropriate about this clause that would make the agreement uncertifiable. It is my instructions that all of the employees covered by this agreement are union members - members of our union and so there in effect actually wouldn't be any - at the current time this clause wouldn't have any work to do in that workplace.

PN9

It is more being put there through the desires of the employees to state their feelings about employees more generally gaining benefits from union activity and other people's union membership without making a contribution to that. We would certainly seek that the agreement be certified in its current form. In relation to the agreement more generally, there is nothing - that the agreement has been made in accordance with the Act and the regulations and rules of the Commission was filed in time.

PN10

There is a dispute settlement clause at clause 6 and a nominal expiry date of 24 August 2004 at clause 4. The agreement is underpinned by the Transport Workers' Award 1998 and the Transport Long Distance Drivers' Award 2000 and there are no reductions in award conditions. The agreement was approved at a mass meeting of employees and I am instructed the vote was unanimous in support of the agreement.

PN11

The statutory declarations set out the process of consultation that was embarked upon in the making of the agreement and the agreement was appropriately explained to employees prior to the vote being taken. I have already indicated that we have members who are covered by the agreement and we are entitled to represent the industrial interest of those members. So we would seek that the agreement be certified in the terms sought from today's date, Commissioner, and perhaps leave it in your hands.

PN12

THE COMMISSIONER: Yes. Well, Ms Tisdale, I still have a concern in relation to clause 18D of the agreement but I would afford the parties - I don't have the employer here anyway, I would afford the parties a further opportunity to address that if that was required and in that regard we can talk about how we actually do that if the TWU still seek that the agreement be certified. But, just on that point, we will go into conference for a moment and we will discuss how we progress with the matter and then we can go back on the record to outline what has been decided in regards to future progressing of the application.

SHORT ADJOURNMENT

RESUMED

PN13

THE COMMISSIONER: Yes, Ms Tisdale.

PN14

MS TISDALE: Thank you, Commissioner. I understand, Commissioner, that you are prepared to list this matter to hear arguments in relation to whether or not the agreement can be certified in this form. I would like to seek the opportunity to seek further instructions from our branch and perhaps to inform you by the end of the week whether or not we will be seeking this matter be listed so that those arguments can be heard. The other alternative is perhaps that we will seek to put an amended agreement to the relevant employees and have a new vote taken, in which case we will seek to have a different agreement certified, but I will need to seek instructions in relation to that matter.

PN15

THE COMMISSIONER: Yes. Well, if you advise me by Friday, Ms Tisdale, and then we will know where we are going in relation to that. So, if there is nothing further, the Commission is adjourned, thank you.

ADJOURNED INDEFINITELY [11.50am]