AG2002/5446, Transcript of Proceedings [2002] AIRCTrans 4761 (29 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2002/5446

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK
of the Act by The Arrows Express Proprietary Limited
for certification of The Arrows Express Proprietary
Limited - 2002 Certified Agreement

BRISBANE

9.37 AM, THURSDAY, 14 NOVEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2

MR D. PRATT: May it please the Commission, Pratt, initials DG, for the Australian Road Transport Industrial Organisation of Employers. Appearing with me today is MR DARYL ROSS. He is one of the deponents of the statutory declarations that accompany the agreement. He is the signatory on behalf of the employees. And also appearing with me is MR DOUG THORNE who is the Operations Manager, who is the signatory on behalf of the employer and also the deponent on the other of the two statutory declarations you have before you, if it please the Commission.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, continue.

PN4

MR PRATT: Thank you, your Honour. I must apologise. I received the notice for the change in this matter as a result of the inspections that are due to take place in the Long Distance Drivers Award and the overnight allowances, and this matter was moved. I neglected to note the date was changed to today rather than tomorrow, so I ask you to bear with me. I've come along without the file, but I have first-hand knowledge of this agreement right from its very first stages to now and have both of the deponents with me. The agreement, in our submission, complies with the Act, particularly in relation to the notice that was provided to employees and the 14 day time limit set by that. In actual fact, there were some negotiations that resulted in amendments to the agreement and the 14 day period was reignited with the reissue of that agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. I noticed that from the statutory declarations. Have you got a copy of the notices in your possession? I assume you may not.

PN6

MR PRATT: I don't, but I can provide those to your Honour later this morning, in fact.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Do you know that there were two?

PN8

MR PRATT: Two notices?

PN9

THE SENIOR DEPUTY PRESIDENT: Two section 170LK(4) notices, the agreement being varied after the first distribution of the copy of the agreement.

PN10

MR PRATT: I'm not entirely sure of the - a second notice, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that's one of the several questions I need to be addressed. So if you would forward to me, as soon as possible after this hearing, copies of any notices that were issued in compliance with section 170LK(4).

PN12

MR PRATT: I'll certainly do that, your Honour. I'll fax them through to the Registry as soon as I reach the office.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR PRATT: The - - -

PN15

THE SENIOR DEPUTY PRESIDENT: You may not - I mean, it's a matter for you to address, but it may be that on a proper construction of the Act, when you go through round two, having varied the agreement, you might not need to issue a second notice. That's a matter you can address.

PN16

MR PRATT: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: But, undoubtedly, there has to be at least one in existence.

PN18

MR PRATT: I can certainly provide you with that, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks.

PN20

MR PRATT: The agreement was filed within the 21 days prescribed by the Act, so we don't seek any extension.

PN21

THE SENIOR DEPUTY PRESIDENT: Now, that was the second question I had. Is that right?

PN22

MR PRATT: I recall it - your Honour may able to correct me on that. As I say, I haven't got the documents with me.

PN23

THE SENIOR DEPUTY PRESIDENT: I just need to ascertain when it is said the agreement was made. Mr Thorne's statutory declaration says it was signed on 27 September.

PN24

MR PRATT: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: I don't know if I should read into that, that that is what he says is the date it was made. And the statutory declaration of Mr Ross says 4 October. 4 October is the date that Mr Ross signed it on behalf of the employees. If I am to assume the agreement was made on 4 October, well then it was filed within the relevant time.

PN26

MR PRATT: Being a transport company, your Honour, there were some difficulties - - -

PN27

THE SENIOR DEPUTY PRESIDENT: I understand.

PN28

MR PRATT: - - - in ensuring all of the employees agreed and one we struggled with, invariably with these agreements, is when - - -

PN29

THE SENIOR DEPUTY PRESIDENT: I know. I understand that.

PN30

MR PRATT: - - - the actual agreement took place.

PN31

THE SENIOR DEPUTY PRESIDENT: But in any event, provided there was no significant change in the make up of employees between the time they got the final agreement - - -

PN32

MR PRATT: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: - - - and voted on it and the matter's now before me - - -

PN34

MR PRATT: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: - - - I would have no difficulty in extending time, if necessary. If there has been a significant change to the make up of the employees between when they've voted and when it's now coming to me to certify, well that might be a matter I need to hear you further on.

PN36

MR PRATT: I understand the question, your Honour, and I can assure you that there was no - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR PRATT: - - - change significant - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Okay. Good.

PN40

MR PRATT: - - - in the employees in that time you're referring to. For that reason, your Honour, we say that the agreement was made on 4 October when Mr Ross was asked if he would become a signatory on behalf of the employees. I'm quite sure it's in the statutory declaration, but I'll mention it for today's purposes, and one of the reasons why I've brought Mr Ross along. He's not, in fact, a negotiator or a representative of employees. He's purely a signatory for the sake of isolating matters to that date. Certainly, a voting system or a system, in fact, of returning signature pages to the agreement was used as, I suppose, a de facto ballot paper-type system. And in fact there were some, I recall, original problems with that and people returning signature pages within the 14 day limit and were reissued to correct that. So I thought it was worth mentioning that Mr Ross, for his own sake and for any questions you may have of him, was purely a signatory and asked if he would represent the employees in that regard.

PN41

THE SENIOR DEPUTY PRESIDENT: Whilst you're talking about the employees, the statutory declarations say that there are 15 of them. Has that changed significantly, on your instructions?

PN42

MR PRATT: I'll take some instructions on that. Mr Thorne has said that that's around about the same. I asked him if he's got an exact figure. He can't recall an exact figure - - -

PN43

THE SENIOR DEPUTY PRESIDENT: All right.

PN44

MR PRATT: - - - at this point.

PN45

THE SENIOR DEPUTY PRESIDENT: Well, then, relying on the statutory declarations, if there are - three of those are casuals, do I assume that there are 12 full-time employees?

PN46

MR PRATT: That's correct, your Honour, yes.

PN47

THE SENIOR DEPUTY PRESIDENT: All right. Yes.

PN48

MR PRATT: Your Honour, on the basis, of course, of providing you with the notice that you've requested, and I'd imagine some attached submissions, I'm quite happy to provide further submissions, given my circumstances at this point in time - - -

PN49

THE SENIOR DEPUTY PRESIDENT: I understand.

PN50

MR PRATT: - - - and wouldn't ask of you to certify the agreement without those.

PN51

THE SENIOR DEPUTY PRESIDENT: No.

PN52

MR PRATT: But essentially, those are our submissions at this point in time - - -

PN53

THE SENIOR DEPUTY PRESIDENT: All right. Well, let me raise the other matters - - -

PN54

MR PRATT: - - - unless you have further questions.

PN55

THE SENIOR DEPUTY PRESIDENT: - - - with you and you'll be able to obtain a copy of this transcript and then address each of those.

PN56

MR PRATT: Yes. Thank you, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: It seems clear to me that the work undertaken by the employees is work that crosses the boundaries of the state of Queensland. In those circumstances, I was surprised to see that the award by reference to which the no-disadvantage test was applied is the Transport Distribution and Courier Industry Award's Southern Division. I would have thought it would have been at least the - that award passed perhaps a combination of the principal industry award, the Transport Workers Award 1998 and the Transport Workers Long Distance Drivers Award. It seems that, at least to some extent, the parties might have thought that too because they are the two awards referred to in the agreement. So there's an inconsistency between the statutory declarations and the agreement, and I need to know which awards you say I should be applying the no-disadvantage test against. And as I say, I perhaps alert you to the fact if you say it's just the Southern Division Award, you may have some convincing - - -

PN58

MR PRATT: Yes. That's quite right. You're - - -

PN59

THE SENIOR DEPUTY PRESIDENT: - - - to do because of the work that obviously goes over a certain - per kilometre. And that of course would be the case whether or not Arrow is the named respondent to those awards. It might be that those awards would otherwise be appropriate awards to designate under the Act as being the awards. I don't know. I haven't had a chance to do a search to see if Arrows is covered by any federal award.

PN60

In the statutory declarations, it is said that certification would not result, on balance, in a reduction in the overall terms and conditions of employment. Again, I don't know by reference to which award or awards that might be. So that needs to be addressed again. In each of the statutory declarations, there is a question asking to identify by reference to specific clauses in the agreement any terms or conditions which might result in there being a reduction. Now, I think that the statutory declaration using the terms "specific clauses" really requires the parties to give consideration to the actual clauses in the relevant awards that do - that there are some overs and there are some unders.

PN61

Generally, there are in fact some clauses that the identical clause in the agreement may well be less advantageous but the test to apply is, of course, an overall balancing test. Nonetheless, those statutory declarations require you to identify the individual clauses that are unders and the individuals clauses that are overs and that has not been attended to. I have had an opportunity to peruse each of the terms of the agreement by reference to the Southern Division award and there might have been some additional questions I had in relation to penalty hours and the hours upon which time and a half and double time might cut in, as well as the ability to work extended ordinary hours and my inability to identify, in particular, the span of hours within which ordinary hours can be worked.

PN62

It looked to me, from a reading of the agreement, that ordinary hours might be worked over a number of hours that normally would be called penalty hours but I didn't take that matter any further because I was only giving consideration to that by reference to the Southern Division award. The other two awards, if they were before me - well, again, it's an unders and overs exercise. So your not having the file here isn't a problem, Mr Pratt, because I had plenty of homework for you to do, anyway. Mr Thorne and Mr Ross, it is not uncommon, with these section 170LKs, that there are a number of questions arise.

PN63

I don't have a discretion in relation to what I think is a fair thing, as we do in relation to awards generally, setting minimum standards. In relation to section 170LK agreements, the procedural steps are mandatory. That's what I was talking about with these pieces of paper that have to precede the voting. Chances are, though, that won't be a problem at all for you. Then, I am obliged to know which awards it is that I'm applying this no-disadvantage test to and I suspect it should be awards other than the Southern Division award. So therefore I need to have that information so that then I can make an assessment myself as to whether I think it passes the no-disadvantage test.

PN64

I'm not going to put any time limit on you, Mr Pratt, in relation to providing the additional documentation and answering the questions raised by me in this transcript. I might indicate to you that I'm about to go on a period of two weeks leave so I couldn't attend to it in that time, anyway. But assuming something will be in my Chambers in Sydney when I come back, I'll do my best to look at it as soon as possible on my return.

PN65

MR PRATT: Thank you, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: If I continue to have any concerns I am obliged under the Act to give you an opportunity to address them, so it won't be a case of my dealing with the matter to completion - well, it will if I'm satisfied, I will then certify, but if I have continuing concerns I'm obliged to give you an opportunity to address them. So if we do that we will probably have a video conference link-up so that we minimise any further delays. The Commission now adjourns.

ADJOURNED INDEFINITELY [9.50am]