AG2003/2011, Transcript of Proceedings [2003] AIRCTrans 1378 (15 April 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/2011

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia -
Victorian/Tasmanian Branch for certification
of the Cleveland Freightlines Pty Limited
Enterprise Agreement 2002

ADELAIDE

9.39 AM, MONDAY, 31 MARCH 2003

PN1

THE COMMISSIONER: Now, who have we got appearing?

PN2

MR L. BELL: If the Commission pleases, I appear on behalf of the Transport Workers' Union of Australia.

PN3

THE COMMISSIONER: Mr Bell.

PN4

MR J. PERRY: I appear for Cleveland Freightlines.

PN5

THE COMMISSIONER: Mr Perry, thank you. Mr Bell, what do we say about this agreement?

PN6

MR BELL: Yes, Commissioner. Before you today is an agreement signed by Mr Frank Lindsay for the company and Mr John Allen, the Federal Secretary which has been lodged in the Commission under Division 2 Section 170LJ of the Australian Workplace Relations Act of 1996. The TWU is the organisation legally entitled to represent the interests of the employees covered by this agreement.

PN7

The Transport Workers Award 1998 and the Transport Workers (Long Distance Drivers) Award 2000 are the awards which underpin this agreement. The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declarations signed by Mr Allen for the union and Mr Lindsay for the company and that is the agreement does not in relation to the terms and conditions of employment disadvantage the employees who are covered by this agreement.

PN8

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 resolution at clause 7.6 and the agreement only applies to part of a single business. Employees covered by this agreement have been consulted at meetings conducted at the work site and also on an individual basis.

PN9

Draft copies of the agreement were circulated to employees and a formal vote was taken. The result was declared on 3 January 2003 at which a majority had voted in favour of the agreement. In respect of that, Commissioner, I note that we are out of time in relation to lodging the application and I might suggest that on two occasions after the formal vote the company and the union have to look at the wage rates that were in the clauses and particularly in certain sectors of the agreement, certain legs of the rates to ensure that they did meet the "no disadvantage test" and we have to improve those rates to do that and there's been no other diminution of the intent of the agreement. We did make some improvements.

PN10

THE COMMISSIONER: So after the vote the parties voted - the employees voted on certain provisions but they were improved subsequent?

PN11

MR BELL: Yes, that is correct and that, Commissioner, occurred on two occasions which would have pushed the time frame out by the month that we've extended by. So we are asking for discretion under section 111(1)(r). The total number of employees covered by the agreement is 70 and in respect of 170LT(7) of the Act there are no relevant employees to be considered.

PN12

Commissioner, pursuant to Part VIB Division 4 Section 170LT of the Act, we seek the Commission to certify an agreement referred to as the - sorry - as the Cleveland Freightlines Pty Ltd Enterprise Agreement 2002, if the Commission pleases.

PN13

THE COMMISSIONER: Yes. How many employees are covered by this agreement?

PN14

MR BELL: Seventy, Commissioner.

PN15

THE COMMISSIONER: Seventy. Have you got any details of the actual ballot? Was it a majority approval?

PN16

MR BELL: Yes, it was, Commissioner, and we have the actual ballot papers in our files in the office.

PN17

THE COMMISSIONER: Do you know the actual numbers of the final vote? Was it a unanimous vote or - - -

PN18

MR BELL: Almost unanimous, Commissioner.

PN19

MR PERRY: There was only three who didn't agree with it out of the 70.

PN20

THE COMMISSIONER: Out of the 70, all the 70 voted?

PN21

MR BELL: Yes.

PN22

THE COMMISSIONER: Has the composition of the work force changed in any way, the composition of that 70, like people leaving, new people coming in since 3 January?

PN23

MR PERRY: No, it has stayed the same.

PN24

THE COMMISSIONER: Entirely the same, yes. The other thing, Mr Bell, and, Mr Perry, put to you both that clause 17.1 of the agreement in regard to the operative date says:

PN25

This agreement shall take effect from the date of signing by the parties and shall remain in force for a period of 2 years from that date.

PN26

Now, of course the parties signed it on different dates and we have Mr Lindsay for the company signing it on 16 January, Mr Gallagher the Branch Secretary of the Union South Australia 29 January and Mr Allen the Federal Secretary 25 February. What are we to make of that?

PN27

MR BELL: The operative date for the purposes of the wage components that we've negotiated would be from the date of signing by the company and the reason for the later signing is that Mr Gallagher was unavailable and then they had to go to Mr Allen in Melbourne up until that time.

PN28

THE COMMISSIONER: So are you then saying that from the union's point of view the date of signing by the parties in clause 17.1 should be 16 January 2003?

PN29

MR BELL: Yes, Commissioner.

PN30

THE COMMISSIONER: Which is the date on which Mr Lindsay signed.

PN31

MR BELL: Yes, Commissioner.

PN32

THE COMMISSIONER: Mr Perry, what is your view on that?

PN33

MR PERRY: Yes, I agree with that.

PN34

THE COMMISSIONER: Can I just say that I'm pleased you both agree on it because had you not agreed, I would have said that on a strict interpretation of the agreement I would have thought 25 February would have been the date that the Commission would have - that is the date I would have applied it from.

PN35

It is loose wording to say the date of signing by the parties. It should be the date of - or should just specify a date but when you say the date of signing by the parties and you have got three different dates, the Commission says: well how are we going to interpret this, and I would have said well the date on which the last party signed it.

PN36

But if you are both saying that the date, the intended date is the date that the employer signed it, which is 16 January, and that is the date on which you are going to operate it and you are both indicating agreement to that, then of course the transcript of these proceedings would become relevant later on if there's some application in a court to enforce the agreement. Do you understand?

PN37

MR PERRY: Yes.

PN38

THE COMMISSIONER: If you are both saying that is the date, I'm happy to accept you on that but I just point out that the wording is loose.

PN39

MR BELL: We don't believe it is in issue, Commissioner, because the company has already applied.

PN40

THE COMMISSIONER: Has already paid but it becomes an issue too as to when the agreement actually expired, nominally expires, Mr Bell. You know, for a period of 2 years from the date of signing of the parties. So really we are saying it operates from 16 January 2003 and it will then expire on 16 January 2005.

PN41

MR BELL: That is correct, Commissioner.

PN42

THE COMMISSIONER: So that is relevant to that. Now, if I just go to - and there's just a couple of comments. I think that is all from your point of view, Mr Bell. Mr Perry, if I just look at the statutory declaration by Mr Lindsay, in point 3.4 of that statutory declaration the question is: is the employer either a constitution or corporation or the Commonwealth?

PN43

I know it is an unusual question and you have circled "no" there or Mr Lindsay has circled "no." Then of course he has gone on to specify the employer's name and specified an ACN number. So clearly the answer is yes, that the company is a constitution or corporation. It is certainly not the Commonwealth but it is a constitution or corporation. The answer should be "yes" but I think that is clear from the fact that the ACN number has actually been listed there but just for future reference I point that out just for the record.

PN44

And then if we go over to 7.8, 7.8 has the agreement ended a bargaining period? The answer is yes. If yes, state the number. In the union's statutory declaration the answer was "no" there. Can I just have clarification on that? Has this formally ended a formal bargaining period?

PN45

MR BELL: No.

PN46

THE COMMISSIONER: The answer should be no?

PN47

MR BELL: Yes.

PN48

THE COMMISSIONER: And I presume that Mr Lindsay would have circled the "yes" there because he thought: well we did have a period of bargaining but it wasn't a formal period of bargaining. So again if we - I thought the answer is probably "no" and if I make that clear for the record with those two changes I think that is all I need to note from that point of view. Mr Perry, have you got anything else you want to say about the agreement?

PN49

MR PERRY: No.

PN50

THE COMMISSIONER: Well, that being the case, the first thing the Commission has to determine is whether or not to grant an extension of time. I would indicate to the parties that the period of 45 days which this is the period that this agreement is out of time is a substantial period. I mean they normally have to be in within 21 days of the date of approval by the employees, the date of the agreement, and this is 45 days out of time.

PN51

That is substantial. The Commission has power under section 111(1)(r) of the Act to extend the time. The things I've taken into account here are first of all the reason for the delay which is an unusual reason but I think we can say that the changes that have taken place to the agreement have only been to increase wage rates, is that right?

PN52

MR BELL: Yes, that is true, Commissioner.

PN53

THE COMMISSIONER: So there has been no other change.

PN54

MR BELL: No.

PN55

THE COMMISSIONER: If there had been any other changes, I might say I probably would decline the application to extend the time, if there had been any other changes up and down and so on but if it is only that wage rates have only increased since then and I've taken into account that the ballot was an almost unanimous vote. You say there were three against but those three could - you know, I mean the situation has only improved for them since then.

PN56

The composition of the work force has not changed. Taking into account those factors, I will extend the time for this matter to have been lodged but I just indicate that I think the parties are pushing the limits on this. I think that you are pushing the limits.

PN57

MR BELL: Yes, Commissioner, we are well aware that it appears that - I'm not sure what other industries do but in the transport industry and in particular the long distance sector, it is hard for us to get to our members and it also appears in our administration side as far as the union goes that it seems to be difficult for us to meet the time lines.

PN58

THE COMMISSIONER: Yes.

PN59

MR BELL: So it would be appreciative if the Act could be amended in some way to give us a bit more time.

PN60

THE COMMISSIONER: Yes, I understand. I just say though for the future, Mr Bell, I know you are the meat in the sandwich in these matters but I think this is probably a borderline case actually but given the fact of the - it wasn't a unanimous vote, was pretty well overwhelming though. The fact that the agreement - see this is what bothers me. The parties did vote on a certain agreement at the time and okay, they voted by clear majority to accept it.

PN61

The agreement itself has actually changed since then. It has been increased. Now, that bothers me on this but obviously if the parties agree to something that was lower than what they've finally got anyway and this is probably only an academic point. As I say, if there had been any other changes to the agreement, up, down or sideways, I think I probably would have not granted the extension of time but in this instance I will grant the extension of time.

PN62

I can indicate for the record that I do so under section 111(1)(r) of the Act. I have perused the statutory declarations on file of Frank Lindsay, managing director of the employer, and I've noted a couple of minor adjustments and corrections that really should have been made to that statutory declaration today and also the stat dec on file of John Allen, Federal Secretary of the Transport Workers Union.

PN63

Having heard the parties today in relation to an application to have the agreement certified under Division 2 of Part VIB of the Act I note for the record firstly 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." It is clear that the agreement before me measures up against those awards well in terms of the meeting of the "no disadvantage test."

PN64

I note the agreement at clause 7 includes procedures for preventing and settling disputes between the parties as required by the Act. With the one or two comments that have been made in regard to Mr Lindsay's statutory declaration the stat decs are also in order and accordingly in all the circumstances the Commission is satisfied that the way is clear to approve the agreement.

PN65

Therefore the Commission certifies the Cleveland Freightlines Pty Ltd Enterprise Agreement 2002. The agreement is certified as from today which will be the date of certification, 31 March 2003, although I note from clause 17 that the parties intend to operate the agreement from the date of signing which the parties have agreed is 16 January 2003.

PN66

The agreement will therefore, while it is certified from today's date, it will in effect and for all practical purposes operate from 16 January 2003 and it will remain in force for a period of 2 years therefrom, expiring therefore on 16 January 2005. The necessary documentation confirming the certification will be forwarded to the parties in due course and unless there's anything further from the parties to clarify any matter of the proceedings this morning, then that will dispose of the hearing of the matter.

ADJOURNED INDEFINITELY [10.02am]