AG2001/7630, Transcript of Proceedings [2002] AIRCTrans 488 (18 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT02435

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2001/7630

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Crane Trucks of Melbourne for certification
of the Crane Trucks of Melbourne Enterprise
Agreement 2001

MELBOURNE

10.09 AM, THURSDAY, 31 JANUARY 2002

Continued from 24.1.02

PN55

MR E. LAFONTAINE: I represent Crane Trucks of Melbourne.

PN56

THE VICE PRESIDENT: Mr Lafontaine, this matter was adjourned on the last occasion by agreement after Mr Wainwright for the CFMEU sought leave to intervene in the matter and raised some issues about the valid majority. It was adjourned to allow discussions between Mr Wainwright and representatives of the company to see if those issues can be sorted out. Can you tell me what happened since the last meeting?

PN57

MR LAFONTAINE: Your Honour, we had a brief discussion straight after the hearing last week and Mr Wainwright indicated to me that we would have a further discussion over the phone. I called him yesterday and left a message. We haven't been able to discuss anything. He indicated to me last week that if he didn't receive the authorisation to intervene that he wouldn't be turning up and I said well, it is up to you guys.

PN58

THE VICE PRESIDENT: Okay. And he hasn't so we can assume that has been the case.

PN59

MR LAFONTAINE: Yes.

PN60

THE VICE PRESIDENT: All right. Well I might just run through the relevant tests and ask you some questions about those.

PN61

MR LAFONTAINE: Sure.

PN62

THE VICE PRESIDENT: I note that the application states that it has been made under division 2 of part VIB of the Act and that the application was lodged no later than 21 days after the day on which it was made by a valid majority. Is the employer party to the agreement a constitutional corporation within the meaning of the Act?

PN63

MR LAFONTAINE: It is.

PN64

THE VICE PRESIDENT: I note that a written copy of the agreement has been submitted for certification. Do you say that the agreement is about matters pertaining to the employment relationship?

PN65

MR LAFONTAINE: It is.

PN66

THE VICE PRESIDENT: And is the agreement between all persons who at any time when the agreement is in operation are employed in a single business or part of a single business of the employer and whose employment is subject to the agreement?

PN67

MR LAFONTAINE: It is.

PN68

THE VICE PRESIDENT: And is the agreement in respect of part of the single business?

PN69

MR LAFONTAINE: It is.

PN70

THE VICE PRESIDENT: And is that a distinct operational unit?

PN71

MR LAFONTAINE: It is distinct, yes.

PN72

THE VICE PRESIDENT: And I note what is said about the steps taken to ensure that every person employed at the time whose employment will be subject to the agreement was given at least 14 days notice of the intention. Do you have a copy of that notice?

PN73

MR LAFONTAINE: I don't, unfortunately.

PN74

THE VICE PRESIDENT: Did that notice also indicate that if any person whose employment will be subject to the agreement was a member of an organisation of employees and the organisation was entitled to represent that person's industrial interests in relation to work that will be subject to the agreement, then that person could request the organisation to represent him or her in meeting and conferring with the employer about the agreement?

PN75

MR LAFONTAINE: On three occasions that I met with the employees, my understanding was that the management team would have given the notice to the employees about the meeting.

PN76

THE VICE PRESIDENT: Right.

PN77

MR LAFONTAINE: I stated to the employers at those particular meetings, if anybody had any cause to have the CFMEU or the TWU here, they had the right opportunity to bring them in. At no time were those individuals forthcoming in saying look, we would like somebody to represent us.

PN78

THE VICE PRESIDENT: Okay. I will go through the rest of the statutory tests. What I would ask you to do is to forward a copy of the notice that was given to the employees.

PN79

MR LAFONTAINE: Sure.

PN80

THE VICE PRESIDENT: The obligation - and if you don't have a copy of the Act there I will get my associate to photocopy section 170LK. It is the obligation under section 170LK(4) and that requires that notice be given in writing and that the notice include the issue that I went to, if a person wants to be represented by an organisation they have that right to request that. Do I take it from what you have said that no employee made such a request?

PN81

MR LAFONTAINE: That is correct.

PN82

THE VICE PRESIDENT: And what can you tell me about the valid majority and the vote in relation to the agreement?

PN83

MR LAFONTAINE: On the three occasions that I met, we had between nine and ten employees at each meeting. They held discussions privately between themselves while I removed myself from the room and on all occasions they came back with a view that as long as they received a dollar per hour increase over the next three years, they were quite satisfied. The management and the owner of the business really didn't want any other trade offs other than getting an agreement in place and giving these individuals an increase so they were quite happy with the agreement.

PN84

THE VICE PRESIDENT: Right. Then a majority of them voted in favour of the agreement?

PN85

MR LAFONTAINE: My understanding is that they did. I wasn't present at the vote. They indicated that they were happy with the agreement and that the majority would sign the actual agreement and I think we have got about seven signatures out of a group of about 11.

PN86

THE VICE PRESIDENT: Yes. I think there are 12.

PN87

MR LAFONTAINE: At the time when the agreement was - there was 12, we counted 12 numbers and I think there is only about 11 now at the moment.

PN88

THE VICE PRESIDENT: Right. And they have signed the document indicating they agreed to the agreement. Okay. In relation to the no disadvantage test - perhaps before dealing with that I should deal with your 170XF application which I think nominated a self loading unloading award which on the last occasion we discussed that we weren't able to find such an award.

PN89

MR LAFONTAINE: No, and I have had a discussion with the owner and they indicated that they would make the award reference there TW award 1996 as they are a respondent to that particular award. They will indicate to the employees that that will be the case and we will forward an amendment to the agreement with a signature or initials by those individuals on that particular page to the Commission.

PN90

THE VICE PRESIDENT: I think it is the Transport Workers Award 1998.

PN91

MR LAFONTAINE: 1998?

PN92

THE VICE PRESIDENT: The supposed simplified award. Is that the award you are referring to? And that award, the employers are respondent to that award?

PN93

MR LAFONTAINE: Yes, they are respondent to that award.

PN94

THE VICE PRESIDENT: Okay. Well in that case, you don't need the XF application as that is the award that would be relevant for the purposes of the no disadvantage test. And in relation to that award, would certification of the agreement result on balance in a reduction in the overall terms and conditions of employment of the employees covered by the agreement?

PN95

MR LAFONTAINE: No, your Honour.

PN96

THE VICE PRESIDENT: In relation to the rates of pay, this is clause 24, what I would like you to do, given that you will be forwarding the LK(4) notice anyway, is for you to just do a table with the weekly wage rates in the agreement and where they line up - - -

PN97

MR LAFONTAINE: With the - yes, we will do that.

PN98

THE VICE PRESIDENT: Yes, with the award classification, because it is not immediately clear and I just want to make sure I understand what XC/T means and I am not drawing a comparison that is not right.

PN99

MR LAFONTAINE: Yes. We actually provided the employees two and a half years ago a comparison between the TW award and what they were currently getting and they were over and above the award so we will update that particular table and forward that to the Commission.

PN100

THE VICE PRESIDENT: On the face of it, I can see how they would be because it would seem that the highest classification under that award - - -

PN101

MR LAFONTAINE: Grade 6.

PN102

THE VICE PRESIDENT: Yes, would be - well there is a grade 10 in relation to the latest adjustment which was 25 July 2001 and that is $554.30.

PN103

MR LAFONTAINE: On our rates we have a semi crane truck which is equivalent to a grade six under the TW award.

PN104

THE VICE PRESIDENT: Yes.

PN105

MR LAFONTAINE: Which is just - - -

PN106

THE VICE PRESIDENT: Well certainly the grade six is $497 so the rates at each of the levels are well in excess of that but I just wanted to make sure where you say the comparison should be drawn. Do the wage rates under the award, are they the base weekly wage rates?

PN107

MR LAFONTAINE: They are.

PN108

THE VICE PRESIDENT: So they don't include any allowances or anything else.

PN109

MR LAFONTAINE: No, no, no.

PN110

THE VICE PRESIDENT: And the agreement is to operate in conjunction with the award.

PN111

MR LAFONTAINE: With the award, that is correct.

PN112

THE VICE PRESIDENT: Okay. All right. I note there is a disputes settlement procedure in clause 11. It provides that if a dispute still exists after going through the various steps, then the matter will be referred to this Commission for determination. In the context of this agreement, the expression "for determination", does that mean that if it was referred to the Commission it would be dealt with by conciliation and, where necessary, arbitration?

PN113

MR LAFONTAINE: That is correct, your Honour.

PN114

THE VICE PRESIDENT: Okay. I note that clause 4 specifies a nominal expiry date being 30 June 2004.

PN115

MR LAFONTAINE: Yes, though there was a typo on our stat dec.

PN116

THE VICE PRESIDENT: Yes, it says 2001. In relation to termination of employment, are any provisions of the agreement inconsistent with a provision of division 3 of part VIA of the Act, an order by the Commission under that division or any injunction granted or any order made by the Court under that division?

PN117

MR LAFONTAINE: No, your Honour.

PN118

THE VICE PRESIDENT: Do any provisions of the agreement discriminate against an employee whose employment will be subject to it because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN119

MR LAFONTAINE: No, your Honour.

PN120

THE VICE PRESIDENT: No, okay. Well, can I indicate then that there are only three matters that I am seeking from you. The first is the 170LK notice, a copy of that, bearing in mind the requirements for it to be in writing and the provisions of LK(4); a replacement page in respect of the reference to the relevant award and you have indicated that the employees have been given a comparison between the Transport Workers Award and their rates in any event, so it is simply a misnaming in that sense and the third is a comparison between the rates of pay in the award and the agreement or where you say which grades you say they line up with. For that purpose, I will get my associate to give you a copy of the latest order in respect of the Transport Workers Award that would set out what their current grades and rates are.

PN121

Subject to receiving those, if the LK notice is in order and the comparison and the rates shows that the employees will receive more as their base rate under the agreement than under the award, if that is the case then I would indicate now that I would be satisfied that the agreement meets the relevant statutory tests. Those are really the only two issues outstanding, the LK question and the no disadvantage test in relation to the rates of pay. So I won't require a further hearing. I will just await the information from you. If there is a hearing that arises from that information, then I will be in touch and let you know where the matter is up to. When do you think you would be able to forward the material?

PN122

MR LAFONTAINE: I would say some time tomorrow.

PN123

THE VICE PRESIDENT: Okay, that would be fine. Then you will have your answer in the first half of next week. Thank you, Mr Lafontaine. I will adjourn.

ADJOURNED INDEFINITELY [10.22am]