AG2003/2690, Transcript of Proceedings [2003] AIRCTrans 1686 (2 May 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT2365

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

AG2003/2690

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Patrick Port Services for certification
of the Patrick Port Services - James Hardie
(Ardeer) Certified Agreement 2003

MELBOURNE

12.01 PM, THURSDAY, 17 APRIL 2003

PN1

MR G. COOPER: I seek leave to appear for the applicant. With me is MR P. STEVENS, the National Financial Controller.

PN2

THE COMMISSIONER: Yes, leave is granted. Yes, Mr Cooper, tell me all about it in a short paragraph, thank you.

PN3

MR COOPER: Yes. The James Hardie warehousing and distribution business at Ardeer was recently acquired by the applicant and the applicant recently reached agreement with the employees at that site under section 170LK of the Act. There are only nine employees involved, four drivers and five warehouse workers. Commissioner, I can give submissions regarding the process that was undertaken with respect to the agreement.

PN4

THE COMMISSIONER: I will take some advice off Mr Stevens about that, thank you.

PN5

MR COOPER: Yes, Commissioner. The first issue was the process that was undertaken and then in terms of checking off that all the statutory requirements have been satisfied. I can run through that process if desired. It may not be desired. In our submission, the no disadvantage test is passed by the agreement. I can give submissions on that if needs be. Having said all that, Commissioner, there is one point which I ought raise and draw your direct attention to and that is in relation to the provisions of the agreement before you relating to notice of termination of employment.

PN6

THE COMMISSIONER: What clause is that?

PN7

MR COOPER: Clauses 8.3 and 8.4. 8.3 provides essentially that for full-time employees, the employment of full-time employees may be terminated on the provision of one week's notice. 8.4 builds on that and provides that for employees who have completed three years continuance service - - -

PN8

THE COMMISSIONER: Yes, I had noticed that.

PN9

MR COOPER: - - - their employment may be terminated by the giving of two weeks notice. Commissioner, those provisions were included accidentally, if I can put it that way, and by way of oversight. The provisions, on their face, are inconsistent with the terms of the Act itself dealing with the minimum requirements for termination of employment and, indeed, I might add that Patrick's general approach to termination of employment is at least in accordance with the provisions of the Act, as you would expect.

PN10

Now, in view of all that, Commissioner, the applicant is prepared to give an undertaking to the Commission to the effect that it will comply with the statutory minima regarding notice of termination of employment in the Act and particularly in section 170CM of the Act with a view to addressing those concerns.

PN11

THE COMMISSIONER: Do you wish to - we will just go off the record for a moment.

OFF THE RECORD

PN12

THE COMMISSIONER: Thanks for that, Mr Cooper. Yes.

PN13

MR COOPER: Commissioner, I can make submissions to the effect that all the statutory requirements necessary for certification have been met. The Commissioner has indicated that he would like to hear from the company's representative regarding process.

PN14

THE COMMISSIONER: Yes.

PN15

MR COOPER: So I am in your hands as to how we proceed.

PN16

THE COMMISSIONER: Yes. Well, the fact that the company has drawn attention to an oversight in respect to the wording of 8.3 and 8.4 the Commission appreciates. The Commission had already read it and was of two minds about what to do. However, the fact that the undertakings have been given in respect to compliance with the Act in respect to employment or dismissal can be dealt with quite simply. The undertakings are noted and the Commission will append a copy of that section of the transcript to the agreement before it is sent out to the parties.

PN17

MR COOPER: As the Commission pleases.

PN18

THE COMMISSIONER: Thanks, Mr Cooper. Mr Stevens, were you involved in the making of this agreement?

PN19

MR STEVENS: Yes, sir.

PN20

THE COMMISSIONER: And you had some discussions with your work colleagues about it as well, did you?

PN21

MR STEVENS: Yes. What happened, the manager of - the warehouse manager came to us and said the employees there had been on the same wage for about two years and they were interested in getting together on it.

PN22

THE COMMISSIONER: And everything was explained to the people properly?

PN23

MR STEVENS: Yes. I went out there first - initially to explain everything to them, initially, go through word by word the contract - clause by clause the contract. We gave it to them prior to that to have a read and then I came out and asked questions and went through it with them.

PN24

THE COMMISSIONER: And there was a vote of the employees?

PN25

MR STEVENS: Yes, in the tea room.

PN26

THE COMMISSIONER: And what was it like? Was it - - -

PN27

MR STEVENS: They were all in favour of it.

PN28

THE COMMISSIONER: - - - all in favour? Okay. All right. Thanks, Mr Stevens. The Commission is satisfied the proper processes have been applied in the making of this agreement and the Commission is also satisfied the agreement meets the no disadvantage test. The Commission notes for the record that clauses 8.3 and 8.4 where they deal with termination of employment are at variance with the Act. The provisions of the Workplace Relations Act in respect to those two subclauses shall apply in their stead and, as I have already said, that section of the transcript will be appended to the agreement for the information of parties so that in case the unusual happens and there is no one around who was involved in the birthing of the agreement, there will be no confusion for people in the future.

PN29

This agreement is to be known as the Patrick Port Services - James Hardie (Ardeer) Certified Agreement 2003. Pursuant to section 170LT of the Workplace Relations Act 1996, the Commission certifies the attached agreement with the changes indicated. This agreement shall come into force from 17 April 2003 and shall remain in force until 14 March 2005.

PN30

Additionally, a representative of Freehills or the company, or both, will explain to those employees at the site the reason for the changes to 8.3 and 8.4 so there is no future confusion. And I am pleased that those people at that site, given the change in the life of James Hardie Industries, have still got employment. The Commission is adjourned. Thank you. Good afternoon.

ADJOURNED INDEFINITELY [12.13pm]