AG2002/5606, Transcript of Proceedings [2002] AIRCTrans 4915 (6 December 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2002/5606

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia
and Another for certification of The Peter
Cochrane Transport Enterprise Agreement 2002

ADELAIDE

9.52 AM, FRIDAY, 22 NOVEMBER 2002

PN1

THE COMMISSIONER: Now, appearances, thanks.

PN2

MR L.E. BELL: I appear on behalf of the Transport Workers' Union of Australia.

PN3

THE COMMISSIONER: Mr Bell, thank you.

PN4

MR G. BAIRD: I appear on behalf Peter Cochrane Transport.

PN5

THE COMMISSIONER: Mr Baird, thank you. Mr Bell.

PN6

MR BELL: Commissioner, before you today is an agreement signed by Mr Gavin Baird for the company, Mr John Allan, the Federal Secretary and Mr Alex Gallagher, the Branch Secretary, which is being lodged with the Commission under Division 2, section 170LJ of the Australia Workplace Relations Act 1996. The TWU is the organisation legally entitled to represent the interests of employees covered by this agreement, the Transport Workers' Award 1998 and the Transport Workers' Long Distance Drivers Award 2000, are the awards which underpin this agreement.

PN7

The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declaration signed by Mr Allan for the union and Mr Baird for the company. That is the agreement does not, in relation to the terms and conditions of employment, disadvantage the employees who are covered by the agreement. The agreement at clause 7 includes procedures for preventing and settling disputes between the parties and, in particular, allows for referral to the Australian Industrial Relations Commission for settlement at clause 7.4.

PN8

The agreement applies only to the whole of a single business and employees covered by this agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote by ballot was conducted on 10 October 2002, at which the majority voted in favour of the agreement. The agreement provides for consultation with employees in relation to any changes that may affect those employees at clause 9.

PN9

The total number of employees covered by the agreement is 119 and in respect of 170LT(7) of the Act there are relevant employees, that is, 13 females, persons who are from a non-English speaking background is 18. Four people who are under the age of 21. One disabled person. Three part-time employees and 51 casual employees. Pursuant to Part VI(b), Division 4, section 170LT of the Act, we seek the Commission to certify an agreement referred to as The Peter Cochrane Transport Enterprise Agreement 2002, operative from today's date and expiring on 21 November 2005. If the Commission pleases.

PN10

THE COMMISSIONER: Yes, Mr Bell, just a couple of things. In 2.4 of the statutory declaration in answer to the question:

PN11

Does this agreement apply to the whole, or part?

PN12

Both "whole" and "part" are ticked in the box.

PN13

MR BELL: That is on the union's - - -

PN14

THE COMMISSIONER: Yes, on Mr Allan's stat dec.

PN15

MR BELL: I believe it should be just the "whole" of the business. It is only one single business, Commissioner.

PN16

THE COMMISSIONER: Well, then, in that case, the next box should not have been ticked because it says - if it is "whole", then, it goes on:

PN17

If part, is the part a business geographically a distinct part, or a distinct operation, or organisation, or unit?

PN18

The answer is, "Yes".

PN19

MR BELL: Yes, Commissioner, I understand that the company's statutory declaration is correct.

PN20

THE COMMISSIONER: That is correct, it does not quite marry up with the company's.

PN21

MR BELL: No, well, I shall have to have that rectified, Commissioner.

PN22

THE COMMISSIONER: I mean, from the company's point of view in Mr Baird's, the agreement is said in 2.4 to apply to the "whole".

PN23

MR BELL: Yes.

PN24

THE COMMISSIONER: So perhaps Mr Baird in a moment might want to explain that, but I think it is important that the statutory declarations marry up, or that there isn't - you know, that the Commission can be satisfied that we are dealing with the one animal here.

PN25

MR BELL: Yes.

PN26

THE COMMISSIONER: So I will come to that in a moment. In regard to point 6.2 of the stat dec - and this applies to both parties I think - again, I note the agreement is lodged, I think, about a day out of time, because it was filed on 1 November. The agreement was actually approved on 10 October, which would have taken you through to the 31st. I know it is technical, but it is nevertheless one day out of time. Again, I ask that question: are you aware of the composition of the workforce changing at all during that 24-hour period?

PN27

MR BELL: No, we are not aware of it.

PN28

THE COMMISSIONER: No, I wouldn't have imagined it. I imagine it was just 24 hours out of time, but I think I should ask that question. I'm curious to know in 6.8 of the statutory declaration there, there is reference to the agreement, or there were meetings it says there - meetings with employees in groups and on a one-to-one basis. I mean, was that with every employee, or only those who requested it, the meetings on a one-to-one basis?

PN29

MR BELL: As I understand it, it would have been on those who requested it. There was quite a bit of effort made by the organiser to contact employees and make sure that they understood what was going on, and those that wanted to were given a chance of one-to-one, but Perhaps Mr Baird could answer that.

PN30

THE COMMISSIONER: Yes. Was it a reasonably substantial majority, by the way, just for the record?

PN31

MR BELL: Yes, yes, it was.

PN32

THE COMMISSIONER: Thanks. Mr Baird, anything you wish to say?

PN33

MR BAIRD: Commissioner, firstly to address the point about the "whole" or "part". It does apply to the "whole" of the business. There is only one operation within South Australia. In terms of the meetings with individuals, generally, they were undertaken in groups but I guess it is the culture of the business that the management team are readily available in the workplace and, certainly, if any employees had cause to query or want confirmation on any points, we certainly took the time to address those individually.

PN34

THE COMMISSIONER: Yes, and you are not aware of the composition of the workforce changing at all in that period of time?

PN35

MR BAIRD: No, Commissioner, it remained the same.

PN36

THE COMMISSIONER: No, it is only one day.

PN37

MR BAIRD: Yes.

PN38

THE COMMISSIONER: Yes, okay, thanks. Actually, I also note - sorry, Mr Baird, in regard to your statutory declaration, 5.2 - Question 5.2 is not actually answered in your stat dec. That is:

PN39

On what date was the agreement approved by a valid majority of employees?

PN40

MR BAIRD: Okay, sorry, Commissioner.

PN41

THE COMMISSIONER: You can confirm that that was 10 October?

PN42

MR BAIRD: 10 October, Commissioner, yes.

PN43

THE COMMISSIONER: Yes, that is the only thing. Look, gentlemen, I'm not sure whether we need formal replacement statutory declarations.

PN44

MR BELL: Perhaps, Commissioner, if I can explain the procedure for the preparation of the statutory declaration is that the company provides us with one. It is then forwarded to the Federal Officer who vets it and prepares the statutory declaration, so that is probably where the error was made.

PN45

THE COMMISSIONER: Yes. Look, I am satisfied with the explanations that have been given today. I think in particular I wasn't too concerned with your 5.2 not being answered, Mr Baird, I mean, you are here to answer it today, that is all that is required there. It is probably just those bits in the union's stat dec in regard to whether it was "whole" or "part" and whatever, but I think we have covered that and I think it is a technical matter. Perhaps it is just something for the future, Mr Bell, because when the great investigation is taking place one day in regard to LJs and LKs and whatever, I'm sure all the statutory declarations will be out there for everyone to have a look at but, no, I accept your explanation today, so that will be fine.

PN46

The Commission therefore indicates that it has considered the application presently before it and the terms of the application. I note that the Transport Workers' Award 1998 and the Transport Workers' Long Distance Drivers Award 2000 are the relevant awards for the purposes of the no disadvantage test. I have perused the statutory declarations on file of John Allan, Federal Secretary of the Transport Workers' Union of Australia and Gavin Paul Baird, Human Resources Manager for Peter Cochrane Transport, and I can indicate that I have clarified for the record today a couple of minor discrepancies in those statutory declarations and I am satisfied that the substance of them is correct.

PN47

I have also noted that while the agreement was lodged one day out of time, the composition of the workforce did not change at all in that 24-hour period and I'm happy therefore to extend the period of time for consideration of this agreement. So then having heard the parties today in relation to an application to have the agreement certified under Division 2 of Part VI(b) of the Act, I can indicate that the Commission is satisfied that all the necessary statutory requirements for certification of the agreement have been met and, accordingly, I'm pleased to hereby certify The Peter Cochrane Transport Enterprise Agreement 2002, to be operative from date of certification, namely today's date, Friday 22 November 2002.

PN48

I congratulate the parties on their agreement and can indicate that the necessary documentation confirming the certification of the agreement will be forwarded to the parties over the next few days and unless there is anything further from the parties I think that then disposes of the hearing of that matter.

ADJOURNED INDEFINITELY [10.04am]