AG2003/3494, Transcript of Proceedings [2003] AIRCTrans 2509 (20 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 3098

~~AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2003/3494

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Toll Ports Pty Limited and Another for
certification of Toll Ports Pty Limited and
the Maritime Union of Australia Enterprise
Agreement 2002

MELBOURNE

2.31 PM, WEDNESDAY, 4 JUNE 2003

PN1

MR L. SMITH: I seek leave to appear on behalf of Toll Ports.

PN2

MS J. WHITE: I appear on behalf of the Maritime Union of Australia, together with MR M. COTTRELL, the Melbourne Secretary.

PN3

THE DEPUTY PRESIDENT: Thank you. I take it there is no objection to leave?

PN4

MS WHITE: No.

PN5

THE DEPUTY PRESIDENT: Leave is granted, Mr Smith. Yes, Mr Smith?

PN6

MR SMITH: This agreement is an agreement under section 170LJ of the Act. It has been negotiated over a period of approximately two years, and ends bargaining period notice C number 15980 of 2002. A couple of points we just want to raise about the agreement and the statutory declarations that have been filed. Firstly, in the statutory declarations we say at point 2.4 that it covers the whole of a single business. We actually say it covers part of a single business which is due graphically distinct.

PN7

THE DEPUTY PRESIDENT: Part of the whole, Mr Smith.

PN8

MR SMITH: It just covers the Port of Melbourne operations. Toll Ports also has an operation in Geelong which is covered by a separate agreement, and I don't think there is any objection to that.

PN9

MS WHITE: No.

PN10

MR SMITH: In relation to the requirements under section 170LT of the Act, we say that this was approved by a valid majority of employees on 8 April 2003. On that occasion a meeting was conducted by Mr Rick Newlyn, who is the Assistant National Secretary of the MUA. At that meeting there was a vote, and the vote was 39 in favour, 27 against, so 66 employees voted out of a total of 86 employees who would be covered by this agreement. All the employees received notification of when the vote was going to take place, and I understand this took place Thursday at a meeting which took place on 19 March with Mr Rick Newlyn, where he explained the agreement to the employees, and also on 7 April.

PN11

There is a requirement that all employees phone in to find out if they are working the next day, and when they phone in they receive any messages which there are, and there was a message on there saying that the vote would be taking place on 8 April, and if they want to vote they can come along and attend. A copy of the agreement was circulated by Mr Rick Newlyn on 19 March 2003, so the 14 day requirement was complied with, we say.

PN12

We say in relation to section 170LT(7), the agreement has been properly explained to the employees. As is fairly custom in this industry, the company entrusted the union with the explanation, to give the employees the explanation of the agreement, and we understand this took place on 19 March, and also before the vote on 8 April 2003, and we say the explanation given was appropriate, taking into account that we have one employee under the age of 21, and some part-time and casual employees, because the terms which are relevant to those employees were explained to them.

PN13

The agreement states the nominal expiry date in clause 6.1, which will be 17 December 2005, so it is no more than three years after the agreement comes into operation, and it also contains a dispute resolution clause in schedule 5, to satisfy section 170LT(8) of the Act. And further we say that this agreement does provide conditions which are better than the Stevedoring Industry Award, and on that basis it would satisfy the no disadvantage test.

PN14

It effectively builds upon the predecessor agreement which was the Strang Stevedoring Australia Pty Limited Enterprise Agreement 1998. What has been built upon is the wages have increased, Toll has agreed to upgrade some employees from supplementary to a Geewees classification, and also from - sorry, supplementary to Tippi classification, which is an irregular permanent employee of Toll, and also 3 Geewees will be upgraded to permanent status as well. So it is something else which makes this agreement better than the award and the previous agreement.

PN15

There is just one other point which we would like to clarify, and that is in relation to the interpretation of clause 20.3 of the agreement. The parties have had some discussions about this clause and what it means, and they have come up with some agreed wording on the interpretation of clause 20.3. The interpretation which I am about to read is consistent with what was told to the employees during the meetings on 19 March and also 8 April. It is really just clarifying what the position is under the award, because the award underlines - clause 20.3 ties in the award.

PN16

Effectively the wording is a Tippi or Geewee working a closed port holiday shall be entitled to be paid at the overtime hourly rates calculated from schedule 1, table D based rates for their classification. Such employees will be paid 2.5 times the ordinary rate, with the exception of night shift, which will be paid three times the ordinary rate plus an added day in accordance with the award. A supplementary employee working a closed port holiday shall be entitled to be paid at the overtime hourly rates calculated from schedule 1, table D, both rates for their classification. Such employees will be paid 2.5 times the ordinary rate, with the exception of night shift, which will be paid at three times the ordinary rate.

PN17

Effectively that is just clarifying that the supplementary employees, if they work closed port holidays they will get the penalty rates, but they don't get the additional day. And, if the Commission pleases, those are my submissions, and we submit that the agreement should be certified.

PN18

THE DEPUTY PRESIDENT: Thanks, Mr Smith. Yes, Ms White?

PN19

MS WHITE: Deputy President, basically I accept and adopt the submissions of the applicant. Just for your information, there was a little bit of delay in us filing our documentation, and that was because of the implementation and interpretation that my friend has just gone through, which actually needed to be clarified before the union can endorse the document, so I just bring that to your attention. And so other than that explanation or any questions you may have for me, we would commend the document for certification.

PN20

THE DEPUTY PRESIDENT: Yes, thank you. No, I don't have any questions. I am satisfied based upon the documentation that has been provided and the submissions that have been made here today, that this application complies in all relevant respects with the requirements of the Act. And the agreement known as the Toll Ports Pty Limited and the Maritime Union of Australia Enterprise Agreement 2002 will be certified with effect from today's date. The agreement will expire on 17 December 2005. The matter is adjourned.

ADJOURNED INDEFINITELY [2.40pm]