AG2003/2759, Transcript of Proceedings [2003] AIRCTrans 2046 (29 May 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 2667

A 29.5.03

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2003/2759

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Australian Rail Track Corporation Ltd and
Another for certification of the Australian
Rail Track Corporation Ltd Enterprise Agreement
2003-2006

MELBOURNE

4.14 PM, WEDNESDAY, 14 MAY 2003

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO LINK AND RECORDED IN MELBOURNE

PN1

MR B. KLITSCHER: I appear on behalf of Australian Rail Track Corporation with MR THOMAS.

PN2

THE SENIOR DEPUTY PRESIDENT: How do I spell your name?

PN3

MR KLITSCHER: K-l-i-t-s-c-h-e-r. I believe it is on the application.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN5

MR D. PAYNE: I appear on behalf of the Australian Services Union. Appearing with me is MR P. CULLINAN, one of our workshop reps.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Payne. Yes, Mr Klitscher, what do you say about the agreement?

PN7

MR KLITSCHER: Your Honour, attached to the application was another application under rule 63, an application for determination of a ..... award or awards for the purpose of the certified agreement.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR KLITSCHER: I think from the Registry number it is AG2003/2756.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I don't have that file.

PN11

MR KLITSCHER: They were all filed together, your Honour, at the Adelaide Registry on 24 April this year.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, just a moment and I will see what has happened to it. Just while we are waiting for that, what do you say is the relevant award?

PN13

MR KLITSCHER: The relevant award, your Honour, is the Salaried Officers (Australian National Railways) Award 1978.

PN14

THE SENIOR DEPUTY PRESIDENT: And what do you say was the number of that file, 2756, was it?

PN15

MR KLITSCHER: 2756 was that one.

PN16

THE SENIOR DEPUTY PRESIDENT: Well, our records show that that file number is an application for a - or certification of an agreement with the Australian Nursing Federation.

PN17

'

PN18

MR KLITSCHER: Well, I am only reading what the Registry wrote for the documents I have.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MR KLITSCHER: A copy of that matter was then filed. They were both filed on the same day.

PN21

THE SENIOR DEPUTY PRESIDENT: Right.

PN22

MR KLITSCHER: So there was a form R27 and a form R45 filed along with the agreement and the statutory declaration.

PN23

THE SENIOR DEPUTY PRESIDENT: In any event is it agreed between the parties that that is the relevant award?

PN24

MR PAYNE: As far as the ASU is concerned, Senior Deputy President, we believe that is the appropriate award that this agreement - the no disadvantage test that this agreement should be set against.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. There is really not much I can do about it without the file, but perhaps what the parties ought to do is proceed on the basis that that is going to be the applicable award and I will deal with the application for the agreement - for the certification of the agreement and then when I get that file I will do the comparisons myself.

PN26

MR PAYNE: Okay.

PN27

MR KLITSCHER: Sir, this is the second agreement between the ARTC and the ASU for their operations in South Australia.

PN28

THE SENIOR DEPUTY PRESIDENT: What was the relevant agreement for the last one then?

PN29

MR KLITSCHER: Sorry, sir?

PN30

THE SENIOR DEPUTY PRESIDENT: What was the relevant agreement for the last one?

PN31

MR KLITSCHER: The relevant - - -

PN32

THE SENIOR DEPUTY PRESIDENT: The relevant award?

PN33

MR KLITSCHER: The same.

PN34

THE SENIOR DEPUTY PRESIDENT: The same award?

PN35

MR KLITSCHER: The same we have got now.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, why do you need another 170XF?

PN37

MR KLITSCHER: Well, it is a new agreement.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, but if there has already been an award established that applies to that particular employment, it doesn't seem necessary to go through the same exercise again, but, anyway, go on.

PN39

MR PAYNE: It will be duly done for the next time, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR KLITSCHER: Sir, this agreement is subject to discussion and negotiation between the parties over a reasonable amount of time culminating in the employees having a vote and being advised both by the company and the ASU that the vote was to accept the agreement. We say the agreement passes the no disadvantage test against that award which I earlier alluded to. The employees were not coerced into making the agreement. The agreement was made, as I said, with the employees and the ASU. It contains the necessary minimum of standards required under the Act for a certification of the agreement.

PN42

THE SENIOR DEPUTY PRESIDENT: Look, perhaps I can shorten this a bit if I just cover the things that struck me. I did note in fact that there was an agreement previously made an in fact that is why the list had - or the clauses that have really changed have been listed. But the things I noted was the ACN number that is given is actually an ABN number and the ACN number will be the same without the two digits at the beginning. In the statutory declaration of Geoffrey Atkinson the title of the agreement is given as the Australian Rail Track Corporation Ltd Enterprise Bargaining Agreement 2003 and in fact the name of the agreement is the Australian Rail Track Corporation Ltd Enterprise Agreement 2003-2006.I take it that the proper name of the agreement is that on the agreement itself; is that right.

PN43

MR KLITSCHER: That is correct, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. All right. And do you confirm that there is no disadvantage or this agreement passes the no disadvantage test?

PN45

MR KLITSCHER: Yes, I do.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes. And you confirm it meets all of the other statutory requirements?

PN47

MR KLITSCHER: If that is the normal position, yes.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Is there anything else you wanted to say at this stage?

PN49

MR KLITSCHER: Nothing at this stage, thank you, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Payne, do you want to say any more?

PN51

MR PAYNE: I will just be brief, Commissioner. I support the previous submission and given that the agreement, Commissioner, in our - in the ASUs opinion, does not reduce on balance the overall terms and conditions of the employment of the employees covered by the agreement, together with the statutory declaration being the relevant requirements of the Act, as well as having endorsement from the Corporation and the employees, we would be urging the Commission certifies the agreement. If the Commission pleases.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. This is an application pursuant to Part VIB, division 2, section 170LJ of the Workplace Relations Act 1996 to certify an agreement to be known as the Australian Rail Track Corporation Ltd Enterprise Agreement 2003-2006. Having heard Mr Payne on behalf of the Australian Services Union and Mr Klitscher on behalf of Australian Rail Track Corporation Ltd, and having read the statutory declaration filed by Anne McEwan on behalf of Australian Services Union and Geoffrey Atkinson on behalf of Australian Rail Track Corporation Ltd, I am satisfied that the agreement filed relates to a constitutional corporation, namely, Australian Rail Track Corporation Ltd, ACN 081455754.

PN53

I am also satisfied that the Australian Services Union has at least one member employed in the part of the single business to which the agreement relates and is entitled to represent the industrial interests of the member. I am also satisfied as to the following matters. The agreement passes the no disadvantage test. The agreement was made in accordance with section 170LJ 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 are appropriate.

PN54

The agreement includes procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement, and the agreement specifies a date as a nominal expiry date not more than three years after the date on which the agreement will come into operation. I am also satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, the agreement will be certified with effect and in accordance with its terms from 14 May 2003. I should also note that I am satisfied for the purposes of section 170XF that the Salaried Officers (Australian National Railways) Award 1978 is the relevant award in this circumstance.

PN55

I am satisfied on the basis that that award has been identified on the occasion of the certification of the previous agreement, or agreement prior to this one, as the relevant award and I am satisfied on that basis. Are there any other matters.

PN56

MR KLITSCHER: No, thanks, your Honour.

PN57

MR PAYNE: No.

PN58

THE SENIOR DEPUTY PRESIDENT: The certified agreement will be issued in due course and forwarded to the parties. Thank you. The matter is adjourned.

ADJOURNED INDEFINITELY [4.25pm]