AG2003/1205, Transcript of Proceedings [2003] AIRCTrans 1093 (26 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/1205

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Atom Welding Services Pty Limited and Another
for certification of the Atom Welding Services
Pty Limited Playford B Refurbishment and Maintenance
Contract Agreement 2001-2004

ADELAIDE

9.25 AM, WEDNESDAY, 12 MARCH 2003

PN1

THE COMMISSIONER: Appearances please.

PN2

MR R. SMITH: I seek leave to appear for the company in this matter.

PN3

THE COMMISSIONER: Any objection.

PN4

MR J. GRESTY: I appear on behalf of the Australian Manufacturing Workers' Union.

PN5

THE COMMISSIONER: Now, Mr Smith are you going to talk to this?

PN6

MR SMITH: Yes, Commissioner. The company is seeking the certification of the agreement before you that is the Atom Welding Services Proprietary Limited Playford B Refurbishment and Maintenance Contract Agreement. That agreement is a metal industry version of the head agreement which is with Alstrom, the head contractor for that refurbishment project. The company is relying on the statutory declaration seeking certification of that agreement and I wish to draw to your attention a couple of errors in the statutory declaration and the first one was 6.2, the date the vote was taken. The vote was originally taken on 19 December 2002 but then fell out of time because nobody from the company bothered to have it filed with the Commission.

PN7

The vote was re-taken again on 13 February 2003 and the initialling of 13 February 2003, that was the person who signed the statutory declaration, Mr Greg Delaney. I would also wish to draw to your attention the period of operation of the agreement and there was a typo error there, Commissioner, and it says there 30 December 2002 in fact it should be 30 December 2004. I was unable to alter the statutory declaration because that was in the form that I received it, Commissioner, and I advised your associate of that typographical error and I would like to have that settled on transcript here today if that would be possible.

PN8

THE COMMISSIONER: Yes, I am happy to accept that Mr Smith. I just also, in re regard to Part VII of the statutory declaration, and I am looking at Mr Delaney's statutory declaration here, 7.1:

PN9

Are the terms and conditions covered by the relevant award?

PN10

And he has answered, "no":

PN11

If no, has application been made under section 107XF for a determination?

PN12

And he has said, "yes". Now, what is going on here because I also note in the union declaration, and I will be seeking Mr Gresty to clarify this, again it said there is no award binding on the employees but that - and an application has been made under section 170XF and has been determined it is Metal Engineering Associated Industries Award so just what is going on here?

PN13

MR SMITH: That should be reversed. That is a clear error. It is a company that - the Metal Engineering Award does apply to that company, it is a welding company.

PN14

THE COMMISSIONER: Right. Are they formally a respondent to the award?

PN15

MR SMITH: I would say no, however I think with their association links, I would say that they probably would.

PN16

THE COMMISSIONER: Yes. So I take it that in answer to this, when we say or ask are the terms and conditions covered or regulated by an award, the answer is well, they are probably a member of an association that is a respondent to that award but if not they follow that award anyway?

PN17

MR SMITH: That is right. As you see, the address of the company is in Queensland. The problem is they have been operating at Northern Power Station doing their work and that is why I have had sort of great difficulty in getting any of these changes made in these statutory declarations. They were done on site and a vote was taken and the human resources person who was doing it on site left at Christmas and it was just sitting there on the shelf without being pursued and I have spoken to Mr Gresty about it and they sent them down here and I had them filed in the form that they are in but I was very - I was loathed to touch the statutory declaration.

PN18

THE COMMISSIONER: Yes, you can't really touch them. Look, I accept what you say and I have no - I have no problem accepting your submission, subject to what Mr Gresty has to say but I think - I think, for the sake of the record and particularly in clause 7.1, I am concerned - I am not concerned about the typo 2002 instead of 2004, not too concerned about that but I think, in regard to Part VII of the statutory declaration I think it would be better if we had fresh statutory declarations.

PN19

MR SMITH: I will arrange for that.

PN20

THE COMMISSIONER: I know that is an inconvenience to the parties but I think - I often say, with these agreements, I need to deal with them in anticipation of the day when the big inquiry comes as to why all these agreements were certified and we need to have the paperwork tidy, I think. In that sense, I would - I really would like fresh declarations clarifying that issue with Part VII and also - what was the first point you raised?

PN21

MR SMITH: The date the vote was taken.

PN22

THE COMMISSIONER: The date the vote was taken, yes, that is only a technical matter. Let us hear from Mr Gresty first. Is there anything further, Mr Smith?

PN23

MR SMITH: I don't have anything further to say.

PN24

THE COMMISSIONER: Mr Gresty.

PN25

MR GRESTY: Thank you, sir. With respect to the statutory declaration, I think our errors only amount to about half of what the employer's certainly with respect to Part VII, I think there was a genuine mistake there because when you look at it, there is quite an obvious contradiction. I am not sure how that came about. I think - - -

PN26

THE COMMISSIONER: Well, the statutory declaration is basically - they were put together by the employer, I take it?

PN27

MR GRESTY: That's right but we do rely heavily on the employer so we get the correct dates etcetera, etcetera and that is not to excuse our lack of vigilance when they provided them to the Commission. I think - well, I think it is true to say it puts us all in an invidious position and it quite frankly shouldn't be taking place and we will be giving greater scrutiny to these things. They are, quite frankly, not as good as they should be but I don't think there is any intended - - -

PN28

THE COMMISSIONER: No. It is just that issue, in regard to Part VII, I think, is an important issue, particular when, at the moment, I've got one statutory declaration in front of me and this is your declaration, Mr Gresty, actually saying there is no relevant award, application has been made under section 170XF and that the Metal Engineering and Associated Industries Award has been determined as being the appropriate award and it says "attach a copy of the Commission's determination" which, of course, is not attached because there hasn't been a determination.

PN29

I think that needs to be tidied up in both cases and if have - I think it would be simpler to have a fresh statutory declaration from both parties, I think that is the important point, that Part VII. I understand how these things can happen and I don't want to be picky about these things but I think, particularly, in regard to that issue with Part VII I think it is important we have a fresh statutory declaration from both parties. As I say in regard to things like, you know, putting 2002 instead of 2004, I don't have a problem with accepting the undertakings of the parties that it was just a typo but in regard to Part VII, I think that's important.

PN30

MR GRESTY: Well, I can only apologise for the error, sir and it will be addressed. If the Commission pleases.

PN31

THE COMMISSIONER: Sure.

PN32

MR SMITH: Well, we put clearly to you, both this agreement and the one coming after, as I have said, they were done by a person who is not an industrial relations practitioner. They have been sitting on his shelf out there. The person thought he was doing the right thing. I was given these documents to file and put in the Commission and the truth be known, Commissioner, I was trying to avoid having to go up to Port Augusta to get it straightened out and I thought I would be able to do it here on transcript but it means that the next opportunity I will have to go up there and do it. That is basically - - -

PN33

THE COMMISSIONER: I don't know about go up there. I mean, we are talking about fresh statutory declarations being - Mr Gresty can fix his and you can get one up to Mr Delaney to sort out. It is just from my point of view, I don't want a statutory declaration on file saying the Commission has made a determination under section 170XF when it hasn't done it. So I don't want to put you to the trouble of going up to Port Augusta but I think it is a case of another statutory declaration, the thing being explained to Mr Delaney, I would have thought, over the phone and him signing the correct one.

PN34

MR SMITH: To be frank, some of these people that run these welding companies are very good at what they do on tools and things like that but when it comes to industrial instruments they are just a bit of a pain but I've got go up there anyway next week so I will have it fixed up.

PN35

THE COMMISSIONER: Let me say, Mr Smith, that I have examined the agreement and in terms of the substance of the agreement I have no problem that it passes all the necessary statutory tests and I am happy to indicate that subject to those statutory declarations being refiled, I will approve the agreement as from today and I will indicate that for the record in a moment.

PN36

MR SMITH: Thank you, Commissioner.

PN37

THE COMMISSIONER: So if there is nothing further from the parties I indicate that subject to fresh statutory declarations being filed in the terms that I have indicated on the record this morning, having heard from the parties today, having perused those statutory declarations, the Commission has before it, this agreement to be certified under Division 2 of Part VIB of the Act.

PN38

I note that the Metal Engineering and Associated Industries Award 1998 is the relevant award for the purposes of the no disadvantage test. That is, of course, to be clarified in the new statutory declarations but I note that is in fact the case and I indicate the agreement has been measured against the terms of that award for the purposes of the no disadvantage test. I note that the agreement, at clause 16, includes procedures for preventing and settling disputes between the parties.

PN39

In regard to all the other necessary statutory requirements for certification, I am satisfied, having regard to the statutory declarations and having regard to the agreement itself, that all those necessary statutory requirements for certification have been met.

PN40

Accordingly, and subject only to the refiling of those statutory declarations, the Commission will certify the Atom Welding Services Proprietary Limited Playford B Refurbishment and Maintenance Contract Agreement 2001-2004 to be operative from today's date, 12 March 2003, which will be the date of certification. It is to remain in force until 30 December 2004. The documentation confirming certification will be forwarded to the parties in due course after receipt of the statutory declarations and I think - unless there is anything further from the parties, I think that effectively disposes of that matter today.

ADJOURNED INDEFINITELY [9.38am]