AG2003/94, Transcript of Proceedings [2003] AIRCTrans 1239 (7 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N WT088

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/94

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by Lodur Pty Limited
for certification of the Bergmeier
Earthmoving Contractors Certified
Agreement 2003

PERTH

4.06 PM, THURSDAY, 20 MARCH 2003

PN1

MR J. UPHILL: I appear on behalf of the employer applicant, Lodur Pty Ltd.

PN2

THE DEPUTY PRESIDENT: Please proceed.

PN3

MR UPHILL: Thank you your Honour. I understand that we have MR D. BERGMEIER, the General Manager of the company available on telephone, and also the employee representative, Mr A. HENDERSON-WILSON. Having said that - - -

PN4

THE DEPUTY PRESIDENT: Good afternoon to you Mr Bergmeier and Mr Henderson-Wilson.

PN5

MR BERGMEIER: Good afternoon sir.

PN6

MR HENDERSON-WILSON: Good afternoon sir.

PN7

THE DEPUTY PRESIDENT: Mr Uphill.

PN8

MR UPHILL: Your Honour, this is an application which seeks the certification of an agreement pursuant to section 170LK of the legislation. There are a number of tests that I need to refer to. And firstly, by way of background information, I would indicate that the agreement to 10 - to eight sorry I should say, eight truck drivers employed by Lodur Pty Ltd, which is a constitutional corporation, and that should be clear from the documentation that has been filed in the Commission. With respect to the process that has been undertaken, I can indicate to you that a letter was forwarded to employees on 20 January of this year, which indicated the company's intention to make an agreement. And the employees have had a copy of the proposed to consider.

PN9

And also, I can indicate to you that there were discussions and an explanation of the terms of the agreement to employees, both by Mr David Bergmeier, and also through the employee representative. The employees expressed their views about the agreement, and as a result a valid majority of employees have approved the agreement. I think I am correct in saying that all eight employees voted positively in favour of the agreement. And as a result the agreement was filed on 19 February this year. And that was well within the 21 days that is required by the legislation, the agreement having been made on 5 February.

PN10

The content of the agreement is also an area I need to draw to your attention and I submit that the agreement complies with the requirements to contain a dispute settling clause and has a normal expiry date. And significantly I would point out that, in our submission the agreement passes the no disadvantage test. That test is with respect to the State Transport Worker's general award and the calculations that we have undertaken for the hours that people usually work, indicates that the agreement comprehensively passes the no disadvantage test. And therefore we would submit your Honour that the agreement does meet the legislative requirements and would seek the certification of the agreement to apply according to its terms.

PN11

THE DEPUTY PRESIDENT: Thank you Mr Uphill. I would like to raise some brief queries. First is in relation to question 3.4 of the statutory declarations, and I wonder if you could confirm for me that the correct ACN number is not as per 3.4: ACN008968257, but rather 008969257?

PN12

MR UPHILL: Your Honour, I'm just looking through the documentation and there is a discrepancy between the ACN number referred to in the actual body of the agreement, versus the ACN number referred to in the statutory declaration. And I'm not sure from the documentation I have, unless I can find it quickly, confirmation of the ACN number, but if you bear with me for a moment, I may have some of that information on documentation that has been forwarded to me.

PN13

THE DEPUTY PRESIDENT: Certainly.

PN14

MR UPHILL: I don't appear to have anything that can resolve that your Honour, but given that Mr Bergmeier is standing by, he may be able in fact to clarify that issue.

PN15

THE DEPUTY PRESIDENT: Yes, this is not a particular problem, it was just a - if you like, a point of clarification of the technical point, but certainly if Mr Bergmeier can assist. Mr Bergmeier.

PN16

MR BERGMEIER: Hello.

PN17

THE DEPUTY PRESIDENT: Yes, Mr Bergmeier can you assist on that point?

PN18

MR BERGMEIER: The ACN number is 008969257.

PN19

THE DEPUTY PRESIDENT: Thank you for that, that is of assistance.

PN20

MR BERGMEIER: Thank you.

PN21

THE DEPUTY PRESIDENT: Mr Uphill, the next query I wanted to raise was in relation to question 5.1(i) of the statutory declaration, which on the document I have on the file does not actually specify those particular steps taken. I wondered if you could assist by clarifying that for me now?

PN22

MR UPHILL: Yes your Honour, perhaps I can do that. I understand that a copy of the agreement was given to all employees, and indeed there was extensive discussion between the employees and Mr David Bergmeier, and also through their representative, with questions being raised with Mr Henderson-Wilson. And then he, as I understand it, raised those issues with Mr Bergmeier and a response was fed back to employees through that process. So that is the basis on which we say that employees have had an opportunity to ask questions and receive answers to any issues they may have. I hope that answers the query.

PN23

THE DEPUTY PRESIDENT: Yes, yes that does assist. Yes thank you Mr Uphill. In relation to the agreement, I have a question on clause 4.2, where there is reference, as I understand it, to an adjustment. And I wanted to have a clarification from you as to the intention of that provision in relation to the adjustment. And I wondered if you could confirm your interpretation and indicate whether that is intended to be an upward adjustment or a downward adjustment?

PN24

MR UPHILL: Your Honour, I have had the opportunity to discuss this matter with Mr Bergmeier, and the wages clause and subclause 2, where it refers to: regular adjustments of the hourly rate, is intended to convey that the rates would be adjusted upwards from time to time. I don't think it is ever envisaged, certainly from my discussions with Mr Bergmeier, that the rates would ever be reduced. I can imagine the reaction from employees on site if that were to be the case, and I don't think anyone is contemplating that sort of adjustment.

PN25

THE DEPUTY PRESIDENT: Thank you for that. In relation to the no disadvantage test. I wonder if you can confirm my understanding of what you have submitted, which is that the agreement passes the no disadvantage test as of today's date.

PN26

MR UPHILL: That is correct your Honour. In fact the agreement comprehensively passes the no disadvantage test, given that the difference in the hourly rate varies between $3.50 and $5 per hour, in favour the agreement over and above the equivalent classifications in the award. And we say there is a significant advantage given the rates in the agreement.

PN27

THE DEPUTY PRESIDENT: Thank you for that, and that is informative. I would like to thank the applicant for its thorough responses to all queries raised by the Commission and the responses given today. And I now would like to proceed to the formal certification of the agreement itself. I note that this is an application pursuant to part VIB, Division 2, section 170LK of the Workplace Relations Act 1996, to certify an agreement to be known as the Bergmeier Earthmoving Contractors Certified Agreement 2003.

PN28

Having heard Mr J. Uphill and Mr D. Bergmeier, and having Mr A Henderson-Wilson also present, on behalf of the employees. Having read the statutory declarations of Mr D. Bergmeier on behalf of Lodur Pty Ltd and Mr A. Henderson-Wilson, on behalf of the employees. I would like to invite, at this point, Mr Henderson-Wilson to indicate whether or not he would wish to make any comments in support of the certification of the agreement. Mr Henderson-Wilson?

PN29

MR HENDERSON-WILSON: Your Honour.

PN30

THE DEPUTY PRESIDENT: Yes, please proceed.

PN31

MR HENDERSON-WILSON: Yes, a long way away. Everything so far has gone really well and all the employees are quite happy with this agreement, Mr Bergmeier and Earthmoving and we are happy to go ahead with it.

PN32

THE DEPUTY PRESIDENT: Thank you for that. That is a helpful submission. I have no further questions. I will proceed with the formal certification, having had the benefit of your comments. I am satisfied that the agreement filed relates to a constitutional corporation, namely Lodur Pty Ltd, ACN 008969257. I am also satisfied that the agreement passes the no disadvantage test. The agreement was made in accordance with section 170LK and a valid majority of persons employed at the time, whose employment would be subject to the agreement, genuinely approved the agreement. The explanation of the terms of the agreement was appropriate.

PN33

The agreement includes procedures for preventing and settling disputes between the employer and the employees, whose employment would be subject to the agreement. And it specifies a nominal expiry date, 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. Accordingly the agreement will be certified with effect from 20 March 2003 to operate in accordance with its terms from the same date. A formal certificate will issue in due course. These proceedings are adjourned.

ADJOURNED INDEFINITELY [4.21pm]