AG2003/1214, Transcript of Proceedings [2003] AIRCTrans 2116 (3 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER REDMOND

AG2003/1214

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Ottoway Engineering Pty Limited for
certification of the Ottoway Engineering Pty
Limited Certified Workplace Agreement 2003

ADELAIDE

10.16 AM, WEDNESDAY, 26 MARCH 2003

PN1

THE COMMISSIONER: Appearances please.

PN2

MR A.E. MARKIEWICZ: I appear on behalf of the company, Ottoway Engineering Pty Ltd. Appearing with me today from the company is MR DAVID HOULAHAN, works manager. We also indicate that the employee representatives who are also present, MR STEWART GRIERSON, MR MICHAEL LEWIN and MR ROBERT MUIR.

PN3

THE COMMISSIONER: Yes, thank you.

PN4

MR J. GRESTY: I appear on behalf of the Australian Manufacturing Workers Union and we seek leave to intervene in this matter, sir.

PN5

THE COMMISSIONER: On what basis do you seek leave to intervene?

PN6

MR GRESTY: On the basis that we believe that subsection 4 of 170LK has in fact been breached.

PN7

THE COMMISSIONER: That section is?

PN8

MR GRESTY: That section is where an employee is a member of an organisation and wishes that organisation to represent them within the negotiations has not been met, sir.

PN9

THE COMMISSIONER: So you say the company failed to meet the test of giving the notification to the employee?

PN10

MR GRESTY: We do, sir, yes.

PN11

THE COMMISSIONER: Yes, Mr Gresty. What do you say to that?

PN12

MR MARKIEWICZ: Sir, in terms of that situation, the company did in actual fact put out a particular notice to the - - -

PN13

THE COMMISSIONER: Do you have a copy of that notice?

PN14

MR MARKIEWICZ: I do have one particular copy, sir.

PN15

THE COMMISSIONER: It has not been provided to me with the file, that was all. Is this the only one you have?

PN16

MR MARKIEWICZ: Yes, sir.

PN17

THE COMMISSIONER: You might show that to the union please. I think that notice, if it is sworn that that was given out, wipes you out, Mr Gresty unless you have got some evidence that you can produce that says that that notice wasn't put on the board.

PN18

MR GRESTY: Well, with respect to the notice that it may well have been put out but how wide it was put out is indeed questionable.

PN19

THE COMMISSIONER: I will get some evidence in respect of that. I grant you leave to intervene at this stage. Can you, as part of your stage, put one of the employee representatives in the witness-box so he can be cross-examined on that notice?

PN20

MR MARKIEWICZ: Certainly, sir.

PN21

THE COMMISSIONER: Yes. Carry on with the application.

PN22

MR MARKIEWICZ: Thank you, Commissioner. Commissioner, this is an application for the certification of agreement to be known as the Ottoway Engineering Pty Ltd Certified Workplace Agreement 2003. In terms of that particular application, sir, it is under section 170LK of the Workplace Relations Act. I can report that the required statutory declarations have been duly signed following a number of meetings between the parties.

PN23

As a consequence of those meetings, developments were consistently provided to all employees by management and employee representatives. The agreement contains an avoidance of industrial disputes procedure at clause 3.20 and a no ..... provision at clause 3.22. Further, sir, all employees were provided with access to copies of the terms of the final agreement. A full 14 days prior to its acceptance by a valid majority on the 28 February 2003 and the agreement was lodged with the Registry on 3 March 2003.

PN24

I would also submit, sir, that there is no reduction in the overall terms of the employees conditions of employment and the parties have agreed that this agreement shall operate from 19 March 2003 and shall remain in operation for a period of 3 years. It might be at this particular stage, sir, that if I could call the witness. Perhaps I could be guided by the Commission, sir. We can ask Mr David Houlahan who is the works manager or one of the - - -

PN25

THE COMMISSIONER: No, I want to hear from one of the employee representatives.

PN26

MR MARKIEWICZ: Yes. Perhaps if I could ask Mr Stewart Grierson to take the witness stand.

<STEWART DEWARS GRIERSON, SWORN [10.21am]

PN27

THE COMMISSION: Please state your full name and address for the record?---Stewart Dewars Grierson of 26 Eastern Road, Happy Valley.

<EXAMINATION-IN-CHIEF BY MR MARKIEWICZ

PN28

MR MARKIEWICZ: Mr Grierson, can you indicate to the Commission what your position is with the company?---Leading hand, boiler maker.

PN29

Mr Grierson, you were involved in the negotiations of the enterprise agreement?---Yes, I was.

PN30

Are you an employee representative in those negotiations?---Yes, I am.

PN31

Could you indicate to the Commission how you came to be an employee representative?---We were asked to form a committee. I was approached by Mr Houlahan and we were - basically the employees said, you know, we need three people and myself and another two gentlemen were nominated.

PN32

Thank you. Mr Grierson, during the check of negotiations, did you receive a notice of the intent to make the agreement?---Yes, we did.

PN33

Perhaps if I could ask if we could show the particular document.

PN34

THE COMMISSIONER: Can we have that document to show the witness, please?

PN35

MR MARKIEWICZ: Mr Grierson, the document that has been handed to you, do you recognise that document?---Yes, I do.

PN36

Could you give us a brief indication of what that document is?---It's mainly a guide or a basis of what the company was negotiating, what they wanted to do in the future and basically to - my own view, to stop any - well, not so much strike but any irregularities of job - different jobs around the place so the company can run smoothly and operate properly.

**** STEWART DEWARS GRIERSON XN MR MARKIEWICZ

PN37

In terms of that particular document, was that document made available to all the relevant employees?---Yes, we had a meeting and each person at the meeting was handed this particular document.

PN38

THE COMMISSIONER: Each person at that meeting was handed a document. That is your evidence?---Yes.

PN39

MR MARKIEWICZ: Thank you, Commissioner. No further questions.

PN40

THE COMMISSIONER: Yes.

<CROSS-EXAMINATION BY MR GRESTY [10.25am]

PN41

MR GRESTY: Yes, thank you, Commissioner.

PN42

Mr Grierson, is it?---Yes.

PN43

Mr Grierson, I think in your statement you mentioned that Mr Houlahan - - -?---Yes.

PN44

- - - approached you to become an employee representative?---Well, it has to start somewhere and at the meeting - - -

PN45

That wasn't the question. The question was, did Mr Houlahan approach you to become the employee representative? Yes or no?---Honestly I don't remember now, actually. Yes, I will say yes.

PN46

So Mr Houlahan approached you to become the employee representative. To the best of your knowledge, who is Mr Houlahan representing?---The company.

**** STEWART DEWARS GRIERSON XXN MR GRESTY

PN47

Didn't you think that was strange?---No.

PN48

So it is quite normal in your situation for the employer representative to approach you, as a leading hand, to become the employee representative?---When I say approached, it was at the meeting Mr Houlahan said that we need one or three or however representatives at the meeting and that's how I was approached.

PN49

That was suggested by - - -?---At the meeting.

PN50

Subsequent to that, there was a meeting on the employees and they by some process elected you?---Well, it was - they didn't say: you are going to do it. It was suggested that I, myself, and the three - most of the oldest guys there would handle it.

PN51

It was suggested that you three be the employee representatives. Who made that suggestion?---Well, the general consensus of the guys at the meeting.

PN52

Okay. So there would have been some process where there was a clear intention of that meeting that you three people would be the legitimate representatives of the employees?---Yes.

PN53

The only thing we can say is that there was some very general consensus. So can we then say there was no firm opposition. Were there any alternative candidates?---No.

PN54

So let us just go through it again. It was suggested by Mr Houlahan that you become the employee representative. How many people were at the meeting when that determination was made that you become the employee representative?---All persons at the workplace at the time.

**** STEWART DEWARS GRIERSON XXN MR GRESTY

PN55

At the workplace and this agreement just covers you guys in the workshop, does it?---As it states, yes. It states the employees of Ottoway Engineering.

PN56

So those people are not just work shop based, are they? I mean, if you read the document you are referring to the project that SA Water wanted which is an off site project?---We haven't - it's not a particular project.

PN57

I'm just referring to the notification which is before you now?---Yes, it's general terms though.

PN58

Well, it clearly states that one of the reasons the company wants an enterprise agreement is to enable them to go on site and perform work for SA Water which will include people who are currently not in workplace, may indeed have been elsewhere on other work that you do. Those people who weren't actually in the workshop - - -

PN59

THE COMMISSIONER: What has this got to do with whether or not the company has complied with the provision of the Act that says that they have got to notify the employees of their rights? This type of questioning is incidental.

PN60

MR GRESTY: Well, we wish to establish that the employee representatives was a very narrow and selective group of people.

PN61

THE COMMISSIONER: Really, from me I don't care whether Santa Claus selected them. If they have been selected by the rank and file and you haven't got any evidence by way of amendment to say that he was excluded, it does not matter as long as the company has given them their rights to (a) ring the union if there were union members there and ask the union to come and represent them. If you had of got that phone call, I'm sure you would have been there.

**** STEWART DEWARS GRIERSON XXN MR GRESTY

PN62

MR GRESTY: Well, we certainly would but one of the problems that we have is that people who are not in the workshop, are not workshop based, had no idea of what was going on. As late as this morning, prior to arriving here, sir, somebody contacted me asking: what is the union doing certifying an agreement which they have had no part in. My response to that was: I have absolutely no idea.

PN63

So the purpose of being here today, sir, is to seek an adjournment in this matter to enable the union to properly provide to the Commission statements which our members could clearly state that they were not informed, not involved or indeed given the opportunity to be involved properly by representation by this organisation, sir. We know we can do that.

PN64

THE COMMISSIONER: All right. Do you want to readdress your witness?

PN65

MR MARKIEWICZ: No, sir.

PN66

THE COMMISSIONER: All right. The witness is excused from the witness-box.

<THE WITNESS WITHDREW [10.24am]

PN67

THE COMMISSIONER: The union has asked for an adjournment so as they can provide for me evidence that contradicts your witness. What do you say to that, given that until the union would have read the paper this morning, they would not have had any notice of this matter being on today?

PN68

MR MARKIEWICZ: In terms of that, we would be in the hands of the Commission. Certainly what we would indicate, Mr Commissioner, is at the time that the discussions took place and the meeting of the employees in terms of going through that, no employees for the company were out in the field. They were all within the workshop at that particular point of time. So in terms of that, all employees were present or able to be present at the particular meeting when the notices were sent out and when the representatives were nominated by particular employees.

PN69

THE COMMISSIONER: I am inclined to certify this agreement. However, I think that procedural fairness would require me to give the union the opportunity to at least put its case and if they can contradict the evidence which I've heard this morning, I don't know that they can. So whilst I am of a mind to certify the agreement, I will not do so today. I will adjourn these proceedings till next time I'm in Adelaide which unfortunately won't be until after Easter but shortly after Easter, I will be in Adelaide.

PN70

My associate will notify the parties of a date later this week and if you are going to bring evidence, then I want witness statements 7 days prior to the date of the hearing to be served in my offices in Sydney and served upon the company and the representative of the company so that they can answer those matters that day. Is that clear?

PN71

MR GRESTY: Give that undertaking too, sir.

PN72

THE COMMISSIONER: I will allow enough time for proper argument and vigorous debate, I hope. The Commission stands adjourned.

ADJOURNED INDEFINITELY [10.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

STEWART DEWARS GRIERSON, SWORN PN27
EXAMINATION-IN-CHIEF BY MR MARKIEWICZ PN28
CROSS-EXAMINATION BY MR GRESTY PN41
WITNESS WITHDREW PN67