AG2003/2556, Transcript of Proceedings [2003] AIRCTrans 1916 (21 May 2003)

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

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/2556

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia -
Victorian/Tasmanian Branch and Another for
certification of Hahn's Haulage Enterprise
Agreement 2003

ADELAIDE

10.24 AM, WEDNESDAY, 7 MAY 2003

PN1

THE COMMISSIONER: Appearances, thanks.

PN2

MR L.E. BELL: I appear on behalf of the Transport Workers' Union of Australia.

PN3

MR R.J. KUCZMARSKI: I represent A.A. Scott Proprietary Limited trading as Hahn's Haulage in this matter.

PN4

THE COMMISSIONER: Mr Bell.

PN5

MR BELL: Commissioner, before you today is an agreement signed by Craig Hahn for the company, Mr John Allan, the Federal Secretary and Mr Alex Gallagher for the Branch. It has been lodged under Division 2 section 170LJ of the Australian Workplace Relations Act 1996. The Transport Workers' Union is the organisation legally entitled to represent the interests of employees covered by this agreement. The Transport Workers' Award 1998 and the Transport Workers' Long Distance Drivers' Award 2000 are the awards which underpin this agreement.

PN6

The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declaration signed by Mr Allan for the union and Mr Kuczmarski for the company. The agreement does not, in relation to the terms and conditions of employment, disadvantage employees covered by this agreement. The agreement at clause 25 includes procedures for preventing and settling disputes between the parties and in particular allows for referral to the Australian Industrial Relations Commission for settlement at clause 25.5.

PN7

The agreement applies only to a part of a single business and employees covered by this agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote was taken on 25 February at which a majority voted in favour of the agreement. Commissioner, I think that we may be a little bit out of time in relation to that date for the lodgement.

PN8

THE COMMISSIONER: Yes. I make it about 13 days, I think it would be. The majority approved on 25 February and according to my calculations that means 18 March, by then it should have been lodged. It was actually lodged in the Victorian Registry on 31 March. So just under a fortnight out of time.

PN9

MR BELL: We are seeking leave for an extension under section 111(r) and the composition of the workforce as far as we are concerned has not changed. Mr Kuczmarski can confirm that. The agreement provides - - -

PN10

THE COMMISSIONER: What was the voting on the agreement? Was it tight or was it fairly clear or what? You said a majority.

PN11

MR BELL: I'm not sure.

PN12

MR KUCZMARSKI: If I may, sir.

PN13

THE COMMISSIONER: Yes.

PN14

MR KUCZMARSKI: It was a valid majority.

PN15

THE COMMISSIONER: Sure, but I mean, was it an overwhelming one?

PN16

MR KUCZMARSKI: Yes, it was. I think I can recall that of the people that actually voted it was 24 to 2, but I'm not actually accurate on those numbers, but my recollection seems to think.

PN17

THE COMMISSIONER: So there are 26 workers covered by it.

PN18

MR KUCZMARSKI: There is more than that, Commissioner.

PN19

THE COMMISSIONER: How many didn't vote? There's 49 employees.

PN20

MR KUCZMARSKI: 49 people involved.

PN21

THE COMMISSIONER: So there were 26 or 28 who voted. What did you say it was?

PN22

MR KUCZMARSKI: I think - again, it's only on recollection, sir - 26.

PN23

THE COMMISSIONER: 26 voted out of 49 and of those 26 it was 24 to 2, as you recall it.

PN24

MR KUCZMARSKI: Yes, sir.

PN25

THE COMMISSIONER: See, the reason I ask this question is in terms of an extension of time, the Commission is particularly interested to know whether there was a change in the composition of the workforce from the date on which the thing should have been lodged, which - it would have been 18 March, and the date on which it was lodged, which was 31 March. Now, if in the meantime there had been - let's say if the vote had been 14:12 and between those dates there had been 6 new employees come on, well then I wouldn't have granted an extension of time. Do you get my drift? Because that could have changed the whole balance. But if it is 24:2 and in fact there were 23 workers who didn't vote at all, then if there's been a small change in the composition of the workforce, like 1 or 2, that wouldn't have affected the ballot.

PN26

That is what I am trying to get at and from the sound of it, Mr Kuczmarski, that's pretty much the situation.

PN27

MR KUCZMARSKI: Yes, sir, my understanding is that the composition of the workforce didn't change during that period.

PN28

THE COMMISSIONER: It didn't change at all. What was your reason, Mr Bell, for the delay, just usual office administration?

PN29

MR BELL: It would have been the usual problems that we have with the Federal Secretary thing. The only person who can sign such statutory declarations and all agreements and I should think probably he was out of the country, or not out of the country, but interstate. I have tried to address this problem, but I don't think it will - - -

PN30

THE COMMISSIONER: Well, normally I must say, the TWU is pretty right on these things. I mean, it doesn't happen very often but I think in this instance, given all the circumstances, that I would be happy to grant that extension of time.

PN31

MR BELL: We have addressed our own internal procedures within South Australia and I usually do have the vote available with me but for some reason this morning - - -

PN32

THE COMMISSIONER: I just wouldn't want the parties to think that getting an extension of time on these things is just a matter of course. The day will come when an extension isn't granted. In fact, I think there was one recently that I recall vaguely but I think that was one where it would have been many months out of time, but I mean, don't just assume an extension of time is automatically granted because we do look at these things carefully.

PN33

MR BELL: Commissioner, in respect of 170LT(7) of the Act there are four persons who are under 21 years of age and 5 casual employees covered by this agreement and pursuant to Part VIB Division 4 of section 170LT of the Act we seek the Commission to certify this agreement referred to as the Hahn's Haulage Enterprise Agreement 2003, from today's date and expiry in January 2004, if the Commission pleases.

PN34

THE COMMISSIONER: Yes. Just one question, Mr Bell, on the statutory declaration, one for Mr Kuczmarski as well. 2.4 of the statutory declaration, whole or part - and this often happens but I think there is a discrepancy there. The union's one says it's part and the employer's says it's whole. I mean, can we just have some explanation and perhaps Mr Kuczmarski, yes, if you might.

PN35

MR BELL: Thank you, Commissioner. Yes, again I suppose this is about the interpretation of this particular paragraph in the statutory declaration. I've come across it before where Hahn's Haulage is a division of A.A. Scott Proprietary Limited but it's an autonomous part of that business. So when we say it's a whole part of the business, that's why the confusion occurs. A.A. Scott Proprietary Limited also has another company trading as McGlashon's Transport, of which we will be bringing forward a certified agreement for that company, but that's also an autonomous part of A.A. Scott Proprietary Limited.

PN36

It is just the way the company is structured, sir. It is not meant to - this agreement is purely to do with the employees who are Hahn's Haulage. If I may, sir, Hahn's Haulage used to be Hahn's Haulage Proprietary Limited before Scott actually purchased the company as a whole and subsequently had been trading as Hahn, continued to trade under the name of Hahn's Haulage, but not Proprietary Limited. So therefore, sir, the inconsistency between the statutory declaration, between Mr Bell's and mine, is purely just an interpretation of that particular clause.

PN37

THE COMMISSIONER: I see. Anything else, Mr Kuczmarski, that you wish to - - -

PN38

MR KUCZMARSKI: Thank you, sir. We support the application for an extension of time and even though you have said that you grant it, we, as a norm for myself, I actually chased up the Melbourne Federal Office of the TWU just to remind them of when we lodge the certified agreements in South Australia. Mr Bell was right. His process is diligent. He sends it across to Melbourne and the process really occurs in Melbourne, the delay, more than it does in South Australia. So we support the application for an extension of time.

PN39

I just thought I would mention, sir, that Mr Bell says that we are seeking certification today. We agree with that but as part of the negotiations, if I could turn to clause 5 of the agreement, it says the agreement shall operate 1 January 2003. In a sign of good faith the company actually has been paying those rates since 1 January 2003 and I agree that the agreement is for one year. So therefore it will expire on 1 January 2004. We seek the certification of the agreement as well. Thank you.

PN40

THE COMMISSIONER: Yes, thank you. Having heard the parties this morning, the Commission has considered the application presently before it and the terms of the agreement, the subject of the application. The Commission has perused the statutory declarations of Ronald John Kuczmarski, Human Resources Manager for the employer, and John Allan, Federal Secretary of the Transport Workers' Union of Australia. Those statutory declarations appear to be in order with the one explanation that was given this morning in relation to 2.4 of those statutory declarations.

PN41

Having heard the parties here today in relation to this application have the agreement certified under Division 2 of Part VIB of the Act. I note firstly for the record 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 and indicate that the agreement has been measured against the terms of those awards.

PN42

I note that the agreement, at clause 25, includes procedures for preventing and settling disputes between the parties and further the Commission declares that it is satisfied that all the necessary statutory requirements for certification of the agreement have been met. Accordingly the Commission certifies the Hahn's Haulage Enterprise Agreement 2003. The date of certification of the agreement will be today's date, 7 May 2003, but I note from clause 5 of the agreement that the agreement will in effect operate from 1 January 2003 and will remain in force for a period of 12 months therefrom, expiring on 1 January 2004.

PN43

The necessary documentation confirming the certification will be forwarded to the parties in due course. I should indicate, or confirm what I said earlier in the proceedings that even though this matter has been lodged slightly out of time, having heard from the parties this morning, I am satisfied that reasonable grounds do exist for an extension of time pursuant to section 111(1)(r) of the Act and I authorise the extension of time accordingly. As indicated, the necessary formal documentation will go out to the parties over the next few days and I think that is probably all we need to put on the record. Thank you.

ADJOURNED INDEFINITELY [10.36am]