AG2003/1220, Transcript of Proceedings [2003] AIRCTrans 2681 (26 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/1220

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Cox Constructions Pty Limited for certification
of the Cox Constructions Pty Limited Enterprise
Agreement 2003

ADELAIDE

10.45 AM, FRIDAY, 13 JUNE 2003

Continued from 9.4.03

PN100

THE SENIOR DEPUTY PRESIDENT: Can I have the appearances, please.

PN101

MR M.J. HOWARD: I appear for Cox Constructions Proprietary Limited. Appearing with me this morning is MR J. BRADBURY, representing the employer and MR M. SIMPSON, representing the employees. If the Commission pleases, this matter was last before the Commission on 9 April when the Commission adjourned the matter on the grounds that the 14 day notice had not been complied with. The agreement that is being presented to the Commission this morning, your Honour, is exactly the same agreement. The document has been renegotiated and perhaps I will hand up to the Commission the notices issued to each of the employees concerned.

EXHIBIT #C1 IDENTICAL NOTICES TO FOUR PERSONS DATED 24/04/2003

PN102

MR HOWARD: The previous agreement had three employees. The current agreement has been signed by four employees. There has been an additional employee employed during the period from 9 April until the agreement was renegotiated. On the occasion - as I said earlier, the agreement is an exact replica of the previous document that was prepared and forwarded to the Commission. On that occasion the Commission did not have any problem with that document that was presented and, in fact, at that time, paragraph 97, on that previous occasion, your yourself, your Honour, said that you were satisfied with the agreement that it meets the requirements of the Act insofar as it contains the necessary dispute resolution provisions, the duration envisaged by the Act and does not contain provisions which are offensive to the Act and it meets the requirements of the no disadvantage test.

PN103

The only problem we had at that time was the 14 day notice period weren't given to the employees concerned in writing. There had been a 14 day period but there was no notification in writing. Now, that was rectified on the occasion of making the new agreement in that on 24 April, exhibit C1, each of the four employees employed at the time were given a letter telling them exactly what the circumstances would be in respect to the negotiation process.

PN104

The document was - they did have meetings again and the document was presented and the employees were quite happy with the document as it was on the last occasion before the Commission. As a result of that, the document was signed and agreed on 12 May 2003. I am not sure if the Commission really wants me to go back over that document seeing it is exactly the same as the document presented before.

PN105

THE SENIOR DEPUTY PRESIDENT: No. Mr Howard, I can indicate to you that I am quite happy to have regard to the responses that you gave to me on 9 April.

PN106

MR HOWARD: Thank you, your Honour. In those circumstances, your Honour, I would be requesting that the Commission certify the Cox Construction Proprietary Limited Enterprise Agreement 2003 in accordance with the provisions of section 170LT of the Workplace Relations Act 1996. If the Commission pleases.

PN107

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Simpson, can I ask, first of all, can you confirm to me that the employees were given that requisite 14 days notice of the intention to make the agreement with access to the agreement over that period of time?

PN108

MR SIMPSON: Yes, sir, we were.

PN109

THE SENIOR DEPUTY PRESIDENT: Are you aware of any union or employee association that requested involvement in the negotiation process?

PN110

MR SIMPSON: No.

PN111

THE SENIOR DEPUTY PRESIDENT: Are you aware whether any of the four employees asked for a union to be involved in the process?

PN112

MR SIMPSON: No.

PN113

THE SENIOR DEPUTY PRESIDENT: On the basis of the employer statutory declaration and the information provided to me by Mr Simpson this morning together with the responses to the various questions that I asked of the parties on 9 April, I am satisfied the agreement now complies with the provisions of the Act particularly with regard to section 170LK. I am also satisfied that the agreement itself meets the requirements of the no disadvantage test, is of a duration envisaged by the Act and contains the necessary dispute resolution procedure.

PN114

I will certify the agreement with effect from today. That certificate will be sent out to the parties within the next few days. It will identify the questions that were raised on 9 April. It will not identify the specific responses. Should the parties need to refer to those responses, they will need to have regard to the transcript of the proceedings of that day. I congratulate the parties on reaching this agreement twice, even in the same terms, and trust it operates to the benefit of both the employer and the employees. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.51am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 IDENTICAL NOTICES TO FOUR PERSONS DATED 24/04/2003 PN102