AG2003/6223, Transcript of Proceedings [2003] AIRCTrans 3519 (15 August 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 3956

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

AG/2003/6223

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Tyco Water Pty Ltd and Others for
certification of the Tyco Water Pty Ltd
Somerton Steel Pipe Plant Enterprise
Bargaining Agreement 2003

MELBOURNE

11.42 AM, THURSDAY, 31 JULY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Anybody here from Tyco?

PN2

MR D. SULLIVAN: I appear for the Australian Industry Group on behalf of Tyco Water Pty Ltd. With me is MR D. CONNELL from Tyco and MR T. VILLANI and MR R. CRINGLE, shop stewards from the company also.

PN3

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN4

MS R. JASTRZEBSKI: I appear on behalf of the Australian Manufacturing Workers Union.

PN5

THE SENIOR DEPUTY PRESIDENT: Anybody here from the CEPU - no. Mr Sullivan.

PN6

MR SULLIVAN: Your Honour, this is an application made under Division 2 of Part VIB of the Act for certification of an agreement in accordance with section 170LJ. The terms in the agreement were reached between the company, the AMWU, the AWU and the CEPU on behalf of employees covered by the Metal, Engineering and Associated Industries Award. We seek for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21 day limit prescribed. The Commission will have noted that while the agreement was approved by employees on 30 May this year, it was not filed until 15 July 03.

PN7

I am instructed that these were to do with union signing issues and have also been instructed that the make-up of the workforce has not significantly changed since that date. I further submit that all the requirements of the Act have been met. The parties to the agreement have prepared statutory declarations that I believe meet all the requirements of the Act and the rules and regulations of the Commission. The agreement does not disadvantage employees covered by it. A valid majority of employees employed at the time generally approved the agreement at 30 May this year.

PN8

Access to the agreement and explanation of the terms of the agreement occurred in accordance with the requirements of the Act and was appropriate, having regard to the particular circumstances of the employees covered by it. It contains a disputes procedure at clause 16. The period of operation of the agreement is set out in clause 4. It is stated the agreement will expire on 30 June this year. We, therefore, request the Commission certify the agreement in the terms sought.

PN9

THE SENIOR DEPUTY PRESIDENT: Now, Mr Sullivan, the CEPU is not here but it is listed as a party bound by the agreement and I don't have any statutory declaration in respect of the CEPU.

PN10

MR SULLIVAN: No.

PN11

THE SENIOR DEPUTY PRESIDENT: What do you know about their involvement in the negotiation of the agreement?

PN12

MR SULLIVAN: Well, your Honour, that is the reason we brought the CEPU shop steward. My instruction is that they were - that all unions were involved in the agreement at that time and the employees voted on the basis that the three unions would be bound by the agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: So you have got the CEPU shop steward here, who is, Mr?

PN14

MR SULLIVAN: Tony Villani.

PN15

THE SENIOR DEPUTY PRESIDENT: Sorry, what is your surname, please?

PN16

MR VILLANI: Villani.

PN17

THE SENIOR DEPUTY PRESIDENT: Villani; how do you spell that?

PN18

MR VILLANI: V-i-l-l-a-n-i.

PN19

THE SENIOR DEPUTY PRESIDENT: Mr Villani, what authority do you have to bind the CEPU to the agreement?

PN20

MR VILLANI: I am the shop steward for the electrical section of the factory.

PN21

THE SENIOR DEPUTY PRESIDENT: Does that give you authority under the rules of the CEPU to bind the organisation to the terms of the agreement?

PN22

MR SULLIVAN: No, I don't think so, no. I am not sure actually.

PN23

THE SENIOR DEPUTY PRESIDENT: I would doubt it. Thank you, Mr Villani. It makes it a bit hard for me, doesn't it?

PN24

MR SULLIVAN: Well, your Honour, there have been some other decisions that have roped the other unions in once the employees have voted in this regard, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: That is noted.

PN26

MR SULLIVAN: Certainly, your Honour, we found in the Pampas Pastry decision that once agreement was given prior to the vote taken, that it was seen that the signature wasn't the most determinative factor.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, but that is a different matter. I don't have any evidence that agreement was given prior to the vote taken.

PN28

MR SULLIVAN: I would think that the shop stewards who participated at that vote at that time have said that there was agreement made between the parties.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. That is all you have got?

PN30

MR SULLIVAN: Yes, Commissioner.

PN31

THE SENIOR DEPUTY PRESIDENT: Mr Winter.

PN32

MR WINTER: Yes, thank you, your Honour. We would support the certification of the agreement. There was an issue in regard to the non filing of the statutory declaration on behalf of the AMWU. That has since been rectified and you should have a signed statutory declaration and also the signed agreement from the AWU. Except for the late lodgment I believe that the agreement can be certified. In regard to the late lodgment I would ask you to use your discretion in regard to that matter. There has been some problems administratively getting the agreement signed and the statutory declarations completed, but I rely on the declaration forwarded by our organiser, Mr Smoko, in relation to the matter. The agreement does have the full support from the AWU members. If the Commission pleases.

PN33

THE SENIOR DEPUTY PRESIDENT: Ms Jastrzebski.

PN34

MS JASTRZEBSKI: Your Honour, I have to admit that this is the first time I have seen the agreement. I didn't even get a notice of listing that went to our national office in Sydney. So I, unfortunately, don't even know whether we have signed the agreement or not. I know we haven't produced a statutory declaration because I haven't personally produced one.

PN35

THE SENIOR DEPUTY PRESIDENT: I don't think anyone has signed the agreement. No-one has signed the agreement. There is a stat dec from the company and the AWU.

PN36

MS JASTRZEBSKI: I know that by flicking through it quickly it does not meet particular policy requirements. I would need to speak to the organiser responsible for the Somerton Steel Pipe Plant to get further instructions because - whether special consideration was given to this site I just don't know.

PN37

THE SENIOR DEPUTY PRESIDENT: So you don't have any instructions about the nature of the negotiations, etcetera?

PN38

MS JASTRZEBSKI: None whatsoever; it is the first time I have seen this agreement, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: What I propose to do is adjourn this agreement to enable the parties to ascertain whether one, the CEPU should be bound by it and similarly, the AMWU. I will adjourn it.

ADJOURNED INDEFINITELY [11.50am]