AG2002/6532, Transcript of Proceedings [2003] AIRCTrans 168 (16 January 2003)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT1225

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2002/6532

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LL of the Act
by Clough Engineering Limited and Others
for certification of the Clough Engineering Limited
(Bass Gas Plant Site) Certified Agreement 2003-2004

MELBOURNE

10.15 AM, MONDAY, 23 DECEMBER 2002

Continued from 18.12.02

PN30

MR I. HARMER: I appear on behalf of Clough Engineering Limited.

PN31

MS Z. ANGUS: I appear on behalf of the Australian Workers Union.

PN32

THE DEPUTY PRESIDENT: Terrific. Do we have an agreement?

PN33

MR HARMER: We sure do, your Honour.

PN34

THE DEPUTY PRESIDENT: Could you hand it up, a complete copy - - -

PN35

MR HARMER: I sure can.

PN36

THE DEPUTY PRESIDENT: - - - or the required number of copies. Do you have the required number of copies, do you?

PN37

MR HARMER: No, I don't but - - -

PN38

THE DEPUTY PRESIDENT: Well - go on.

PN39

MR HARMER: Sorry, your Honour. I pointed that out to your associate. I have only been able to secure most of these copies this morning and late on Friday, but I am very happy to make - - -

PN40

THE DEPUTY PRESIDENT: All right.

PN41

MR HARMER: - - - arrangements early - later - after this hearing to make the appropriate copies for your associate.

PN42

THE DEPUTY PRESIDENT: All right. Yes, thank you. So how many unions are respondent?

PN43

MR HARMER: Your Honour, the unions party to the agreement are the six major unions, the AWU, the AMWU, CFMEU (General Division), CFMEU (FEDFA Division).

PN44

THE DEPUTY PRESIDENT: Yes.

PN45

MR HARMER: CEPU (Electrical Division and CEPU (Plumbing Division). I do need to point out to you, your Honour, one concern with the CEPU (Plumbing Division) in my haste I didn't check that Earl Setches had actually signed his statutory declaration and I have only noted that this morning, your Honour. What I will do is make a commitment to you here that I will undertake to drop that agreement back to the CEPU (Plumbing Division) today and have it filed with your associate by close of business, an amended signed version.

PN46

He has signed the application and he has also signed - - -

PN47

THE DEPUTY PRESIDENT: Sorry, sorry. Just stop a minute.

PN48

MR HARMER: Sorry.

PN49

THE DEPUTY PRESIDENT: Are you saying that Mr Setches hasn't signed the agreement?

PN50

MR HARMER: He has signed the agreement.

PN51

THE DEPUTY PRESIDENT: Yes, or no?

PN52

MR HARMER: Yes, he has.

PN53

THE DEPUTY PRESIDENT: Thank you. But he hasn't signed the statutory declaration is that correct?

PN54

MR HARMER: Correct, your Honour.

PN55

THE DEPUTY PRESIDENT: Thank you. That is all. I don't need a stream of words. Thank you very much. Now, these signatories, they are all on different sheets of paper, are they?

PN56

MR HARMER: Correct, your Honour.

PN57

THE DEPUTY PRESIDENT: So if I put them all together that comes to a signed document does it?

PN58

MR HARMER: That is correct, your Honour.

PN59

THE DEPUTY PRESIDENT: Right. Okay. Well, you will need the copies back, - the originals back won't you, to make all the copies?

PN60

MR HARMER: I have made copies - one copy of the original is upstairs, your Honour.

PN61

THE DEPUTY PRESIDENT: Fine, so you don't need the copies back. That is right. Good. All right. I will sort through and make sure it is all there. I am sure - I am sure it is, but - so the only document we are waiting on really then is first of all the required number of copies and secondly a signed statutory declaration is required by the rules, from Mr Setches, is that right?

PN62

MR HARMER: That is correct, your Honour.

PN63

THE DEPUTY PRESIDENT: All right. Just bear with me. How many copies are you supposed to have filed?

PN64

MR HARMER: Six parties, seven including the company, and I assume I am required to file at least six or seven copies, your Honour.

PN65

THE DEPUTY PRESIDENT: What do the rules say on the subject, Mr Harmer?

PN66

MR HARMER: I would need to check my copy of the Act, your Honour. I thought it was one copy per party, your Honour and three for the Commission.

PN67

THE DEPUTY PRESIDENT: Yes, I think that is right.

PN68

MR HARMER: So it will be nine copies that I will be filing with your - - -

PN69

THE DEPUTY PRESIDENT: Well, where is that requirement, is it in the rules?

PN70

MR HARMER: I don't know, your Honour. Top of the application, I believe, your Honour.

PN71

THE DEPUTY PRESIDENT: So it is not a statutory requirement is what you are telling me.

PN72

MR HARMER: No, I believe it is a regulation, your Honour.

PN73

THE DEPUTY PRESIDENT: Regulation. It is in the regulations, is it?

PN74

MR HARMER: Yes. I believe so, but I don't have my copy of the Act with me, today.

PN75

THE DEPUTY PRESIDENT: You are very brave appearing at the Commission without a copy of the Regulations and the Rules of the Act, Mr Harmer, since they happen to guide what I do today. I always made a practice of - I think it is a desirable practice to bring a copy of the Act and the Rules and Regulations.

PN76

The purpose of my asking these questions is this. It may be possible for me to waive some of the procedural requirements to make it easier for you. That is the purpose of my questions.

PN77

MR HARMER: I appreciate that, your Honour.

PN78

THE DEPUTY PRESIDENT: Now, obviously - I think - I don't think I will waive the requirement of Mr Setches signing the declaration because I will rely on that statutory declaration as evidence satisfying me that the requirements of the Act are met, but as to the signed copies, if you take me to the relevant regulation I may be able to waive that requirement today if it is appropriate that I do so. Well, if you are not able to take me to that, I won't do it.

PN79

MR HARMER: Your Honour, it is form 28, under the Rules of the Commission in this particular section of the Act it does talk about the applicant must be accompanied by an original of the written agreement signed by the parties, three copies for the use of the Industrial Registry, and sufficient additional copies to enable the Industrial Registry to provide a copy of the agreement to each party. So I suspect that would be six additional copies.

PN80

THE DEPUTY PRESIDENT: Right, well we will need those won't we?

PN81

MR HARMER: Yes.

PN82

THE DEPUTY PRESIDENT: Because every party must have a copy of this. Right. Thank you for that, Mr Harmer. So, in those circumstances I will leave the requirement in place.

PN83

MR HARMER: Yes, your Honour.

PN84

THE DEPUTY PRESIDENT: And I think it is desirable that everybody has a copy of this document, given its importance. All right. Let's go through the requirements then. Is there a formal application before me - a formal written application?

PN85

MR HARMER: Yes, there is, your Honour. I submitted the form R27, rule 48.

PN86

THE DEPUTY PRESIDENT: All right. Okay. Does the application state that it has been made under the division Part 6B of the Act?

PN87

MR HARMER: That is correct, your Honour. It is actually a section 170LL certification and application.

PN88

THE DEPUTY PRESIDENT: Yes, right. Was the application lodged no later than 21 days after the day on which the agreement was made, in accordance with section 170LL?

PN89

MR HARMER: It was lodged within the 21 day time limit, your Honour.

PN90

THE DEPUTY PRESIDENT: All right. Thank you.

PN91

MR HARMER: The date nominated on the statutory declarations was 9 December.

PN92

THE DEPUTY PRESIDENT: 9 December.

PN93

MR HARMER: That is correct, your Honour.

PN94

THE DEPUTY PRESIDENT: I assume the day it was made is the last date of signing which is today in any event, isn't it?

PN95

MR HARMER: Correct, that would be my understanding.

PN96

THE DEPUTY PRESIDENT: So it is well within time - the maximum period of in time, in fact. Is the employer party to the agreement a constitutional corporation within the meaning of the Act?

PN97

MR HARMER: Yes, it is, your Honour.

PN98

THE DEPUTY PRESIDENT: Is the agreement about matters pertaining to the employment relationship?

PN99

MR HARMER: Yes, it is, your Honour.

PN100

THE DEPUTY PRESIDENT: Is the agreement in respect of a single business, or part of a single business?

PN101

MR HARMER: Yes, it is, your Honour.

PN102

THE DEPUTY PRESIDENT: Which is it, a single business or part?

PN103

MR HARMER: It is a part, your Honour.

PN104

THE DEPUTY PRESIDENT: It is a part, all right. Is that part a geographically distinct part, or a distinct operation or organisational unit within the single business?

PN105

MR HARMER: It is a distinct part, your Honour.

PN106

THE DEPUTY PRESIDENT: Thank you very much. Is it a new business within section 170LL(1)A?

PN107

MR HARMER: No, it is not, your Honour.

PN108

THE DEPUTY PRESIDENT: Right. And was the agreement made before the employment of any of the persons who will be necessary for the normal operation of the business?

PN109

MR HARMER: Yes, it was, your Honour.

PN110

THE DEPUTY PRESIDENT: Are the organisations of employees party to the agreement entitled to represent the industrial interests of one or more persons whose employment is likely to be subject to the agreement?

PN111

MR HARMER: Yes, your Honour.

PN112

THE DEPUTY PRESIDENT: Is there in place a Federal State award or awards that regulate the employment?

PN113

MR HARMER: A number of Federal awards, your Honour.

PN114

THE DEPUTY PRESIDENT: Right. So there is no need for a designation?

PN115

MR HARMER: No, there is not, your Honour.

PN116

THE DEPUTY PRESIDENT: Is the agreement - is there any reduction on the terms and conditions provided for in those awards?

PN117

MR HARMER: No, no, there is not, your Honour.

PN118

THE DEPUTY PRESIDENT: Does the agreement include dispute settling procedures?

PN119

MR HARMER: At clause 4.2, your Honour.

PN120

THE DEPUTY PRESIDENT: All right. Let's have a look. Thank you very much. Does the agreement specify a date as the nominal expiry date?

PN121

MR HARMER: Yes, it does, your Honour. 31 December 2004.

PN122

THE DEPUTY PRESIDENT: All right. And that is not more than three years after the date on which the agreement will come into operation is it?

PN123

MR HARMER: No, it is not, your Honour.

PN124

THE DEPUTY PRESIDENT: Thank you. Are any provisions of the agreement inconsistent with the provision of division 3 of part 6A, an order by the Commission under that division, or any injunction granted or any order made by the Court under that division?

PN125

MR HARMER: No, there is not, your Honour.

PN126

THE DEPUTY PRESIDENT: All right. Are there any matters under section 170LU3 which would lead me to refuse to certify the agreement?

PN127

MR HARMER: No, there is not, your Honour.

PN128

THE DEPUTY PRESIDENT: Do any provisions of the agreement discriminate against an employer on the grounds provided in the Act?

PN129

MR HARMER: No, there is not, your Honour.

PN130

THE DEPUTY PRESIDENT: Does the agreement contain any so-called objectionable provisions?

PN131

MR HARMER: No, your Honour.

PN132

THE DEPUTY PRESIDENT: And no preference clauses?

PN133

MR HARMER: No, your Honour.

PN134

THE DEPUTY PRESIDENT: Thank you very much, Mr Harmer.

PN135

MR HARMER: Thank you.

PN136

THE DEPUTY PRESIDENT: Ms Angus.

PN137

MS ANGUS: Yes, your Honour. The AWU supports the submissions made and agrees with all the answers given by Mr Harmer.

PN138

THE DEPUTY PRESIDENT: Thank you very much, Ms Angus.

PN139

MS ANGUS: If it please the Commission.

PN140

THE DEPUTY PRESIDENT: Right. Well, subject to receipt of a properly sworn statutory declaration from Mr Setches today and receipt of the copies of the agreement required by the Rules I will certify the agreement as sought by the parties on the basis of the submissions put today and the statutory declarations - sworn statutory declarations lodged by the parties to the agreement. Thank you very much for coming and I am sorry it was so difficult for you.

PN141

MR HARMER: Thank you, your Honour.

ADJOURNED INDEFINITELY [10.27am]