AG2002/5230, Transcript of Proceedings [2002] AIRCTrans 4274 (30 October 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT405

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

AG2002/5230
C2002/4953
C2002/4954
C2002/4955
C2002/4956

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Mayne Group Limited and Another for
certification of The Mayne/TWU Heads of
Agreement Certified Agreement 2002

TRANSPORT WORKERS (ARMOURED VEHICLES) AWARD 1978

TRANSPORT WORKERS (LONG DISTANCE DRIVERS) AWARD 2000

TRANSPORT WORKERS AWARD 1998

TRANSPORT WORKERS (DISTRIBUTION FACILITIES) AWARD 1996

Applications under section 113 of the Act by
Mayne Group Limited to vary the above awards

MELBOURNE

10.37 PM, MONDAY, 14 OCTOBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: I propose to keep a common transcript unless anybody takes objection and I will take appearances in all matters. But we will have to deal with them all separately.

PN2

MR C. HARTIGAN: I seek leave to appear on behalf of Mayne Group Limited in all the matters.

PN3

MR L. DUFFIN: I appear on behalf of the Transport Workers Union of Australia and leave is not opposed.

PN4

THE SENIOR DEPUTY PRESIDENT: Well, leave is granted, Mr Hartigan. Who is going to open the batting? We will deal with the Heads of Agreement first.

PN5

MR HARTIGAN: Thank you, your Honour. If I may, I might just in a couple of minutes outline for - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, by all means.

PN7

MR HARTIGAN: - - - the transcript generally what has given rise to these matters. As is clear from the face of the Heads of Agreement, Mayne Group Limited has proposed what is commonly known as a de-merger of part of it's business, it's non health, logistics and transport activities into other companies within the group, and subject to shareholder approval later in the year it then would propose to spin that business off as a separately listed entity.

PN8

The Commission has some knowledge of these procedures and we have noted that Senior Deputy President Harrison dealt with similar applications in relation to the TNT group of companies in June of this year and we will come to that matter presently. The - as part of this separation of businesses there will be the movement of some thousands of employees, both members of the Transport Workers Union and other unions, to other companies within the group, who are nominating Heads of Agreement of Loomis - subsidiaries of Loomis Limited, which is currently wholly owned by Mayne Group Limited.

PN9

That is foreshadowed to take place at the end of October 2002 and the parties have had discussions to consider the elements of how that transfer would take place and to provide certainty to the employees with regard to continuity of recognition of their entitlements and preservation of their conditions of employment and that is the aim of the certified agreement that we bring for certification today. Principally, you will note, in the Heads of Agreement, it provides in clause 5(c), that employment on equivalent terms will be provided by the relevant Loomis entity and you will appreciate that currently all of these employees are employees of Mayne Group Limited but they will be offered employment in the relevant business unit.

PN10

Some of these employees work currently within the Armaguard Security business, some work in logistic activities and some work in the express component of the business and they will be offered employment by the relevant Loomis entity and those entities are listed in clause 1(d) of the Heads of Agreement. So on the basis of the statutory declarations filed by the parties in this matter it is our submission that the requirements of the act with regard to certification of the Heads of Agreement have been met and we submit the agreement to the Commission for it's approval. Thank you.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Hartigan. Mr Duffin.

PN12

MR DUFFIN: Thank you, your Honour. Just in relation to the Heads of Agreement. This was a matter which was negotiated over a period of time between the TWU and Mayne Group. Primarily the issue for the TWU was the protection of employee entitlements in the de-merger such that employees who were on existing terms and conditions at Mayne were to maintain those terms and conditions in the new company and that given that the de-merger involved the creation of a new entity with different assets and liabilities, it would be a significant issue for us.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR DUFFIN: And we believe that this agreement provides for much of what we were seeking in that regard. Or indeed, all of what we were seeking in that regard. So we would also say that the Commission should certify the agreement in accordance with the statutory declarations that have been filed.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Duffin.

PN16

MR DUFFIN: Thanks, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Well, I shall proceed to do that immediately. This is an application pursuant to Part VI b, division 2, section 170LJ of the Workplace Relations Act to certify an agreement to be known as the Mayne/TWU Heads of Agreement Certified Agreement 2002. Having heard, Mr Hartigan, on behalf of the Mayne Group Limited and Mr Duffin on behalf of Transport Workers Union of Australia and having read the statutory declarations of Daniel McPherson, filed on behalf of the Mayne Group Limited, and John Allan, filed on behalf of the Transport Workers Union of Australia, I am satisfied that the agreement does relate to a constitutional corporation, namely Mayne Group Limited ACN004073410.

PN18

I am also satisfied that the Transport Workers Union of Australia has at least one member employed in the part of the single business to which the agreement relates and is entitled to represent the industrial interests of that member. I am also satisfied as to the following matters: 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 and the explanation given of the terms of the agreement was appropriate and the agreement includes procedures for preventing and settling disputes between the employer and the employees in relation to the employment - of employees whose employment will be subject to the agreement and the agreement specifies as a expiry date - nominal expiry date which is not more than three years after the date on which the agreement will come into operation.

PN19

I am also satisfied there are no reasons set out in section 170LU of the act why I should refuse to certify this agreement. Accordingly, I will certify the agreement with effect from today's date to operate in accordance with it's terms. A formal certificate, together with these reasons will issue in due course. Is there any particular order in which we should do the other matters?

PN20

MR HARTIGAN: I don't believe so, your Honour. Would it assist the Commission if I just addressed the matters collectively.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, I am happy - I didn't observe that there was any difference in any of the applications but I wasn't a hundred percent sure so I thought I would just check.

PN22

MR HARTIGAN: In respect of the four applications to vary the four awards to which both Mayne Group Limited and the Transport Workers Union are party, the purpose is in - now having had the Heads of Agreement certified which provides certain certainty to the employees in respect of the transfer the party - it was considered appropriate by Mayne that an application be made to exempt it from the payment of severance payments under these four awards if the question were to arise.

PN23

The variations are limited to three months each so that it doesn't carry on indefinitely of apply to some other circumstance. You will note, your Honour, that there is a - a difference in the form of the variations between - they fall into two categories, the distribution facilities variation and the Transport Workers Award variation. Take a form - we have styled it on the basis of some variations that were made by, her Honour, Senior Deputy President Harrison in June of this year, in varying those awards.

PN24

So we are effectively placing another exemption after the exemption applies in respect of the - applied by TNT and it might assist - I understand that those variations haven't actually yet made themselves onto the form of the award that is on the Commission's system so we do have a copy of the order made by, her Honour, which might assist the Commission to make sense of why we have made those variations.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN26

MR HARTIGAN: So we will hand up a copy of the orders made by, her Honour, on 28 June in respect of the Transport Workers Distribution Facilities Award and the Transport Workers Award 1998.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #H1 COPY OF ORDERS MADE BY HER HONOUR, SENIOR DEPUTY PRESIDENT HARRISON ON 28 JUNE 2002, IN RESPECT OF THE TRANSPORT WORKERS DISTRIBUTION FACILITIES AWARD AND THE TRANSPORT WORKERS AWARD 1998

PN28

MR HARTIGAN: The second two variations, the Armoured Vehicles - the Transport Workers Armoured Vehicles Award 1978 and the Transport Workers Long Distance Drivers Award 2000 take a different form because those awards haven't previously been varied. But it is to the same effect. Applying for this limited period and for these circumstances providing that where someone has been offered acceptable alternative employment that they would not be entitled to severance payments otherwise provided for under the award and then sets out a statement as to what constitutes acceptable alternative employment.

PN29

Principally, being recognition of all prior service and employment on equivalent terms and conditions which is what is provided for under the Heads of Agreement.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR HARTIGAN: So the variations sought - are sought on the basis of consent with the Transport Workers Union and we would commend them to the Commission. It is our submission that they are consistent with the TCR decision and also consistent with decisions with which, your Honour, has very close knowledge, principally being the Full Bench decision in Steppes, which I have copies to hand up but I take it that you do not require them.

PN32

THE SENIOR DEPUTY PRESIDENT: No.

PN33

MR HARTIGAN: No. If the Commission pleases.

PN34

THE SENIOR DEPUTY PRESIDENT: Thanks. Mr Duffin.

PN35

MR DUFFIN: I don't have very much to add in relation to these matters other than to say that given that the award process sets out that these should probably occur in these sorts of circumstances. It is almost a bit of a double protection in the light of the transmission of business provisions. So in that respect we think it is probably sensible given the nature of the TCR decision and the clause in the relevant awards. Thank you, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: These are four applications to vary awards in the transport industry applying to the Mayne Group Limited to provide that an employee who accepts a transfer, and I use that word in inverted commas, to Loomis Express Pty Limited, Loomis Armaguard Pty Limited or Loomis Supply Chain Management Pty Limited, does not as a result of that transfer be deemed, for the purposes of the redundancy provisions of the awards, to have been made redundant.

PN37

The variations arise as a result of negotiations between the Transport Workers Union of Australia and the Mayne Group Limited as a result of a decision by Mayne Group Limited to separate off the logistics or non-health care aspects of it's business and the possible disposition of those assets. The variations are also consequent upon a Heads of Agreement certified by the Commission earlier today. It is in my view, desirable, that express provision be made in the awards for arrangements such as this to occur and I note with pleasure that the parties have accepted that view and acted upon it.

PN38

I therefore consider it appropriate, by consent, to grant the applications sought. The orders will have a life of three months and they will issue together with these reasons for the decision in due course.

ADJOURNED INDEFINITELY [10.53am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 COPY OF ORDERS MADE BY HER HONOUR, SENIOR DEPUTY PRESIDENT HARRISON ON 28 JUNE 2002, IN RESPECT OF THE TRANSPORT WORKERS DISTRIBUTION FACILITIES AWARD AND THE TRANSPORT WORKERS AWARD 1998 PN28