AG2002/4442, Transcript of Proceedings [2002] AIRCTrans 4152 (22 October 2002)

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TRANSCRIPT OF PROCEEDINGS

O/N WT05475

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2002/4442

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia
and Another, for certification of the D'Orsogna
Limited and Transport Workers' Union of
Australia (Western Australia Branch)
Enterprise Agreement 2002 - 2005

PERTH

2.01 PM, MONDAY, 7 OCTOBER 2002

PN1

MR N. HODGSON: I appear on behalf of the Transport Workers Union.

PN2

MR J. BURGESS: I appear on behalf of D'Orsogna Limited.

PN3

THE DEPUTY PRESIDENT: Thank you. Mr Hodgson?

PN4

MR HODGSON: Thank you, your Honour. This is an application to certify the D'Orsogna Limited and Transport Workers Union of Australia (Western Australia Branch) Enterprise Agreement 2002 to 2005. The parties to the agreement are the Transport Workers Union and D'Orsogna Limited. We have filed statutory declarations in respect to the application which I believe satisfy the requirements of the Act. The only matter we may, unless you have any questions, your Honour, the only matter that I need to bring to your attention is that the agreement was filed out of time.

PN5

So we would seek an order pursuant to section 111(i)(r) to extend the prescribed time limits for lodging applications such as these. Unless there are any questions we would ask that the agreement be certified if it please the Commission.

PN6

THE DEPUTY PRESIDENT: Thank you, Mr Hodgson. Mr Burgess?

PN7

MR BURGESS: Thank you, your Honour. I concur with the comments made by Mr Hodgson. The agreement represents the terms and conditions that are currently being paid and likewise I would request that the agreement be certified if it pleases the Commission. Thank you.

PN8

THE DEPUTY PRESIDENT: Thank you, Mr Burgess. I have one question, Mr Hodgson, which relates to the no disadvantage test. I just wanted to confirm with you that there has been no increase in the award since the application was made. I'm referring to the rate of pay.

PN9

MR HODGSON: That is correct, your Honour. The award was varied prior to this agreement being lodged, as it is, it is varied to pick up the safety net adjustment and even if it was, even if the safety net adjustments occurred after the agreement was lodged we would say that it satisfied the no disadvantage test because the rates payable in the agreement are far superior to that payable under the award. So we would say it meets the no disadvantage test.

PN10

THE DEPUTY PRESIDENT: Thank you, Mr Hodgson. Mr Burgess?

PN11

MR BURGESS: Thank you, your Honour. Yes, I agree with those comments. I mean, even if the $18 hadn't been included the minimum difference is still $31 so there is a further $13 in front of the award rates even if that safety net factor was not included.

PN12

THE DEPUTY PRESIDENT: Thank you. I turn now to the formal certification of the agreement and note that this is an application pursuant to Part V1B Division 2 Section 170LJ of the Workplace Relations Act 1996 to certify an agreement to be known as the D'Orsogna Limited and Transport Workers Union of Australia (Western Australian Branch) Enterprise Agreement 2002 to 2005. Having heard Mr N. Hodgson on behalf of the Transport Workers Union, the TWU, and Mr J. Burgess on behalf of D'Orsogna Limited, I exercise my power pursuant to Section 111(1)(r) of the Workplace Relations Act 1996 and grant an extension of time for the application for the reasons given by the applicant.

PN13

Having read the statutory declarations filed by Mr J. Allen on behalf of the TWU and Mr J. Burgess on behalf of D'Orsogna Limited, I am satisfied that the agreement filed relates to a constitutional corporation, namely D'Orsogna Limited ACN 063427752. I am satisfied that the TWU has at least one member employed in the part of the single business to which the agreement relates and is entitled to represent 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.

PN14

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 would be subject to the agreement and the agreement specifies a nominal expiry date 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 7 October 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 [2.07pm]