AG2002/367, Transcript of Proceedings [2002] AIRCTrans 5064 (16 December 2002)

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Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N WT05680

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2002/367

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by TGE Energy Services and Others for
certification of the TGE Energy Services
(Osborne Park) Certified Agreement
July 1 2002-December 31 2003

PERTH

2.36 PM, TUESDAY, 3 DECEMBER 2002

PN1

MR P. MOSS: I appear on behalf of Chamber of Commerce and Industry as agent for the applicant.

PN2

MR J.D. FIALA: I appear on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Fiala. Mr Moss, please commence.

PN4

MR MOSS: Thank you. May it please the Commission, we seek certification of agreement 2002/367, the TGE Energy Services (Osborne Park) Certified Agreement under section 170LJ of the Act being agreement between TGE Energy Services, a Joint Venture between Transfield Services Australia Pty Limited and TGE Energy Services Australia Pty Limited and, if I may use the initials, the AMWU and the CEPU. The agreement applies to all employees of TGE Energy Services (Osborne Park) Operations, employees in the classifications covered by the Metal Trades (General) Award and engaged on electrical, mechanical, wire and core manufacturing and miscellaneous work. Total of employees covered by the agreement is 78.

PN5

In accordance with 170LE(c) of the Act the employer provided each employee with a copy of the agreement on 10 October 2002 with notification that a vote on the agreement would be conducted. The vote was conducted on 24 October in which it was approved by a valid majority of employees. The employees were advised of contact persons for questions concerning the agreement and the respondent's unions held discussions with employees.

PN6

We submit this agreement on the basis that the applicable award covering the terms and conditions of employment to which this agreement applies is the Metal Trades (General) Award, being award of the Western Australian Industrial Relations Commission and in line with 170LT(2) the agreement passes the no disadvantage test. Clause 10 of the agreement makes provision for a disputes settlement procedure and the agreement also provides a nominal expiry date in clause 5 of the agreement. The agreement ends bargaining periods 2002/90 and 2002/91. We would therefore respectfully submit that the agreement complies with the requirements of the Workplace Relations Act and that it be certified. Thank you.

PN7

THE DEPUTY PRESIDENT: Thank you. Mr Fiala?

PN8

MR FIALA: Yes, Deputy President, I would just like to concur with Mr Moss' submissions and agree with those submissions and seek the certification effective of today's date. Thank you, sir.

PN9

THE DEPUTY PRESIDENT: Thank you, Mr Fiala. Mr Moss and Mr Fiala, I would like to thank you both for your thorough responses to all queries raised by the Commission. I would seek confirmation that the agreement would pass the no disadvantage test as of today's date. Do you so confirm?

PN10

MR MOSS: Yes, sir, we do.

PN11

MR FIALA: Yes, sir.

PN12

THE DEPUTY PRESIDENT: Thank you. On the notice of listing there was at the bottom of the notice a request to provide to the Commission in writing confirmation, and this was to two unions. The CEPU did respond to that request. No response, to my knowledge, has been provided by the AMWU and I'm wondering, Mr Moss, if you are able to be of any assistance in this regard, given that that was a request made by the Commission in advance of the hearing and to be provided by no later than 5 pm, Friday, 29 November 2002.

PN13

MR MOSS: Yes. I'm afraid I don't actually have any information as to whether or not the AMWU have actually supplied a response with respect to that or what their intentions are on that matter.

PN14

THE DEPUTY PRESIDENT: I raise this because the agreement specifies a date of operation of July 1 2002, which is contrary to section 170LX(1) of the Act, which provides that in effect the date of certification is when the agreement commences. That was the reason for the written request being made and, as I say, there is no record in my Chambers of it having been received by the AMWU. Are there any views on how we should proceed in relation to that?

PN15

MR FIALA: Sir, if I may, and certainly the CEPU has taken on board your comments in respect to section 170LX(1) and the CEPU has responded in writing agreeing with your interpretation. So, sir, I think it pertinent to progress matters today and to allow the certification to go on, if I may and if the Deputy President is acceptable to it, if I respond on behalf of the AMWU by saying that they would also be in agreeance with the CEPU in that regard because it was a joint agreement between the two unions and we do have quite an alliance in these areas. So I dare say that in the absence of any written confirmation that if I accept responsibility on behalf of the AMWU and accept the interpretation of 170LX that in fact the agreement shall operate from the date of certification, that being today's date. Thank you.

PN16

THE DEPUTY PRESIDENT: Thank you, Mr Fiala. Certainly I appreciate that and certainly it is not my intention to hold up the certification but I am also concerned that the Act be strictly complied with in this regard. I note the close association between the two unions but given that the AMWU is a registered organisation in its own right, whether it might be appropriate for the certification to proceed but for the AMWU to be required to provide in writing and within 24 hours its written confirmation. That being the case then I don't believe the issuance of the certificate would be delayed if that was complied with. Could I invite your comments on that as a method of proceeding?

PN17

MR FIALA: Certainly, sir, from the CEPUs point of view that would be acceptable to us and may I dare say that on conclusion of the matter here today I will be going to the AMWUs office to conduct some other business, I will let it be known very clearly when I get there what the requirement is to comply with your request. Thank you, sir.

PN18

THE DEPUTY PRESIDENT: Thank you very much.

PN19

MR MOSS: Likewise, sir, yes. That procedure would be quite acceptable.

PN20

THE DEPUTY PRESIDENT: All right. Thank you for that. I appreciate that offer to convey that on behalf of the Commission, given that the AMWU is not represented here today and on the basis that within 24 hours, if that could be submitted to my Associate in Chambers by way of compliance with the request in the notice of listing then that will not delay the issuance of the certificate. Are there any further submissions before I proceed?

PN21

MR MOSS: No, sir.

PN22

MR FIALA: No, sir.

PN23

THE DEPUTY PRESIDENT: If not, I note that this is an application pursuant to Part VIB Division 2 section 170LJ of the Workplace Relations Act 1996 to certify an agreement to be known as the TGE Energy Services (Osborne Park) Certified Agreement July 1 2002 to December 31 2003. Having heard Mr P. Moss on behalf of TGE Energy Services, Mr J. Fiala on behalf of the Communications, Electrical and Plumbing Union of Australia, the CEPU, and there being no appearance on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the AMWU, and having read the statutory declarations filed by Mr G. Parker on behalf of TGE Energy Services, Mr J. Fiala on behalf of the CEPU and Mr D. Hicks on behalf of the AMWU, I'm satisfied that the agreement filed relates to a constitutional corporation, namely TGE Energy Services ACN 090835886.

PN24

I'm satisfied that the CEPU and the AMWU 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 the member. I'm 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.

PN25

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 of 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.

PN26

Accordingly, the agreement will be certified with effect from 3 December 2002 to operate in accordance with its terms from the same date. As advised, the formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [2.49pm]