AG2003/624, Transcript of Proceedings [2003] AIRCTrans 2025 (28 May 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 WT0276

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/624

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by Brink's Australia Pty Limited
for certification of the Brinks
Australia Pty Limited Enterprise
Agreement - Armoured Vehicles

PERTH

2.39 PM, TUESDAY, 13 MAY 2003

THIS HEARING WAS CONDUCTED IN PART BY VIDEO CONFERENCE

PN1

MR P. GURRAN: I appear on behalf of Brink's Australia and with me a MR W. PAUL and MR G. WASHAUSEN, in Kalgoorlie.

PN2

THE DEPUTY PRESIDENT: Thank you Mr Gurran, Mr Paul and Mr Washausen. Thank you, would you wish to commence Mr Gurran?

PN3

MR GURRAN: Thank you Deputy President. This is an application for the certification of a 170LK agreement, under Division 2 of the Workplace Relations Act. In essence, running through the documents, I think there has been compliance with Form R29, rule 49, form R30, rule 49, that is statutory declarations from myself and three of the employees involved in the making of this agreement. We have provided a copy of the Enterprise Agreement itself, via e-mail, in recent times, to pick up on some minor changes that needed to be made. There are some outstanding original signatures that need to be sent.

PN4

Most of them have been sent, but there are a couple in terms of distance that we haven't got across. They will go in the post first thing, in express post, first thing tomorrow morning. In terms of documents sent through correspondence, I faxed earlier today, and I'm not sure whether you have received it, just a copy of the roping in award that establishes that our employees essentially would be covered by the relevant Federal award and a copy of the document that establishes that they were formerly covered by a Western Australian workplace agreement. With respect to the elements in respect of LK, we would comply with the requirement being a constitutional corporation.

PN5

Our ACN number is 003621378. In terms of the role of the branch and its responsibilities, they collect gold from the mines throughout Western Australia and they transfer them to the base in Kalgoorlie and on a plane into Perth. From there they are distributed to the rest of the world. This essentially involves the use of trucks and planes and our employees perform the roles mainly of driver, messenger and guard and those roles are defined in clause 4 of the agreement itself. We have got about 15 employees on our books at Kalgoorlie.

PN6

One employee has been absent from the workplace for a significant period of time, we are not able to employ him at the moment, because he doesn't hold the requisite licences and one employee is in Perth, who I understand from Mr Paul this afternoon, that that employee has now resigned, effective, I think, this Friday. So we have 13 people on our books and what has occurred with our employees over a period of time is that we have had communication sessions, so the guys have got together and essentially discussed the ending of the old agreement and the desire to make a new one.

PN7

They have come forth with a lot of claims and sat down with company representatives, our National Operations Manager, Mr Alan Somerville, along with Mr Paul and they have put those claims on the table. There has been some discussions in respect of them. The company had a few things that they were looking for in terms of improvements. Over, I think, two sessions, they were able to reach a landing. After that time I had some input in relation to the movement from the State agreement to a Federal agreement and looking at the requirements under the Federal agreement, the no disadvantage test, we have made some further changes.

PN8

Around about mid-February our guys essentially were told that we would hold a ballot to make a certified agreement. A notice was posted on the wall and copies of the agreement were provided. So that was towards the end of February and they received a copy of the agreement and told that we would have this ballot and then around mid-March the ballot was held. Employees, including Mr Washausen and Mr Paul, counted the ballots and 13 of our employees voted for the making of the agreement. We then lodged the application with the Registry on about 4 April and we are here today, I guess, to make that agreement.

PN9

To the best of our knowledge none of our employees are members of the union and at no time during the course of the discussions, the consultation and negotiations, did any employee request the involvement of the union in the making of this agreement. In terms of the term of the agreement, there is a specific term in clause 28 of 3 years from the making of the agreement and in respect of the dispute settlement procedure, clause 21 provides for a procedure for employees to become involved in the resolution of disputes and also for the involvement of the Australian Industrial Relations Commission.

PN10

From our perspective, Deputy President, we believe we have complied with the requirements of the Act and we are looking forward to moving on with this agreement and delivering the benefits to our employees and enjoying the same ourselves.

PN11

THE DEPUTY PRESIDENT: Thank you Mr Gurran, I would like to thank you, specifically, for the informative submission that you have made and I do have a couple of points of clarification. I would like to first, just for the formal record, to note that you are in Sydney and Mr Paul and Mr Washausen, are in Kalgoorlie, is that correct?

PN12

MR GURRAN: That is correct Deputy President, yes.

PN13

THE DEPUTY PRESIDENT: Thank you for that confirmation. A second point related to the signatures that you referred to. To my knowledge the agreement had been signed in the appropriate way. I wasn't sure if you were suggesting that there was a need for any further signatures and if so what your suggestion or proposal is?

PN14

MR GURRAN: Deputy President there isn't a need for any further signatures, but what happened was that our 13 employees in Kalgoorlie have signed off and I was able to produce a faxed copy of those signatures in terms of lodging the agreement. I have the originals, I had planned to be in Perth, both for this matter and other matters and I intended to provide them across the table, unfortunately I am not able to do that and if it is all right with you, I would like to post them tomorrow morning, so you will have the information, this is not new information. You have that information in a fax form, you just don't have the original signatures because they were faxed to me, they weren't forwarded to your office in Western Australia.

PN15

THE DEPUTY PRESIDENT: Certainly, well, as you would wish Mr Gurran, that is certainly acceptable to the Commission, if you wish to send those. However, it is not necessary to satisfy the Commission's requirements. So, really, it is a matter for you to determine, as you see fit.

PN16

MR GURRAN: All right, well I might just put them in an express post, if that is okay, tomorrow and forward them across and then they are there as part of the record going forward and if there are any questions.

PN17

THE DEPUTY PRESIDENT: Indeed and they will be incorporated in the file and attached to the agreement upon receipt.

PN18

MR GURRAN: Thank you Deputy President.

PN19

THE DEPUTY PRESIDENT: I turn now to one or two other queries, the first being the provision of the oral undertaking, which you have undertaken to give, consistent with the written undertaking that you have submitted to the Commission.

PN20

MR GURRAN: Deputy President, I can give an undertaking to the Commission and to Mr Washausen, as a representative of the employees, which I will confirm in writing with each individual employee, that Brink's Australia Pty Limited, undertakes to apply to each employee who would be subject to the Brink's Australia Pty Limited Enterprise Agreement - Armoured Vehicles Kalgoorlie, the special allowance of keys and combination of safes in accordance with the operation of clause 11B of the Transport Workers' (Armoured Vehicles) Award 1978.

PN21

THE DEPUTY PRESIDENT: Thank you indeed for that undertaking Mr Gurran. My final question relates to the no disadvantage test, I wonder if you can confirm for the Commission, that the agreement would pass the no disadvantage test as of today's date?

PN22

MR GURRAN: Deputy President it is our view that the agreement would pass the no disadvantage test. Specifically, we believe that the rates that we have set, that will apply going back to March, are well above the rates that apply in the award. We apply one rate for our permanents and one rate for our casuals. Both of those rates are significantly above the three award rates in both the full time and casual areas of the award. Those rates that we apply on an hourly basis would, for most of our employees, have the effect of increasing their income over a 30 to 40-hour period and that that increase would outweigh any potential downside that might arise through penalty rates, such as overtime, or weekend penalties, that could arise.

PN23

For the record, and I know this may not be directly relevant to the test, employees would work potentially an hour of overtime, maybe a little more at certain peak periods of the year, per week and in respect of weekends we rarely work at the weekend. We do work public holidays, but we rarely work at the weekend. The nature of our operations is such that we are collecting gold from mines, essentially bringing that in and transferring it and it is mainly done on a Monday to Friday basis.

PN24

THE DEPUTY PRESIDENT: Thank you Mr Gurran and I wondered if I heard you correctly, in the earlier part of your submission when you said that this was the first occasion that the employees concerned would be covered by a certified agreement of the Federal Commission?

PN25

MR GURRAN: Yes, Deputy President, that is right.

PN26

THE DEPUTY PRESIDENT: Thank you for that and I have no further questions or queries and I would like to ask if Mr Paul first would wish to add his support to the certification of the agreement?

PN27

MR PAUL: Yes, I do Commissioner.

PN28

THE DEPUTY PRESIDENT: Thank you Mr Paul and I would like to ask Mr Washausen, if he would wish to make a comment in relation to the certification of the agreement as well?

PN29

MR WASHAUSEN: Well speaking on behalf of my colleagues, I certainly favour the signing of this agreement, Deputy President.

PN30

THE DEPUTY PRESIDENT: Just given the fact that the phone system here is not entirely effective in relation to what you just said, I would ask if you would repeat it.

PN31

MR WASHAUSEN: Yes, I shall do.

PN32

THE DEPUTY PRESIDENT: Thank you.

PN33

MR WASHAUSEN: On behalf of all my colleagues here, for whom I was representing in the negotiation, I would certainly emphasise that we would like to have the agreement as signed and as loaded on the register.

PN34

THE DEPUTY PRESIDENT: Thank you for that.

PN35

MR WASHAUSEN: Thank you very much.

PN36

THE DEPUTY PRESIDENT: If there are no further comments from any person present I would now move to the next stage of the proceeding, which is to address the certification of the agreement itself. I note that this is an application pursuant to Part VI, Division 2, section 170LK, of the Workplace Relations Act 1996, to certify an agreement to be known as the Brink's Australia Pty Limited Enterprise Agreement (Armoured Vehicles). Having heard Mr P. Gurran and Mr W. Paul, on behalf of Brink's Australia Pty Limited and Mr G. Washausen, on behalf of the employees and having read the statutory declarations of Mr P. Gurran on behalf of Brink's Australia Pty Limited and Mr K. Flood, Mr P. Blake and Mr G. Washausen, on behalf of the employees.

PN37

I am satisfied that the agreement filed, relates to a constitutional corporation, namely Brink's Australia Pty Limited, ACN 003621378. 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. The agreement includes procedures for preventing and settling disputes between the employer and the employees, whose employment would be subject to the agreement and the agreement specifies a nominal expiry date, not more than 3 years after the date on which the agreement will come into operation.

PN38

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. I accept the written and oral undertakings and explanations made on behalf of the applicant. The agreement will be certified, with effect from 13 May 2003, to operate in accordance with its terms from the same date. The formal certificate will issue in due course. These proceedings are adjourned.

PN39

MR GURRAN: Thank you Deputy President.

ADJOURNED INDEFINITELY [2.55pm]