C2003/7181, Transcript of Proceedings [2003] AIRCTrans 4446 (3 October 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10590

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2003/7181

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Toll Ports Pty Limited and Another for
certification of the Toll Ports Pty Limited
Geelong Enterprise Agreement 2003

MELBOURNE

2.32 PM, FRIDAY, 19 SEPTEMBER 2003

PN1

MR H. SKENE: I seek leave to appear on behalf of Toll Ports Pty Limited.

PN2

MS J. WHITE: I appear on behalf of the Maritime Union of Australia, together with MR K. BRACKEN, MR D. CUSHION.

PN3

THE DEPUTY PRESIDENT: Thank you. I think it is your application, Mr Skene, is it not?

PN4

MR SKENE: Yes, indeed, your Honour, thank you. As you are aware, your Honour, this application concerns the application to certify the Toll Ports Geelong Enterprise Agreement 2003. It is an agreement made under division 2, part VIB of the Act, in accordance with section 170LK between Toll Ports and the MUA. The agreement covers stevedoring work performed at the Toll Ports Geelong operation. It is to be read in conjunction with the Stevedoring Industry Award 1999, Stevedoring Industry Long Service Leave Award, and the Stevedoring Australia Vocational Training System 1994.

PN5

It has a nominal period of operation of three years from the date of certification. Your Honour, perhaps I should confirm that you have received the statutory declaration of Mr Garaty dated 2 September 2003. Mr Garaty is the National Stevedoring Manager at Toll Ports, and - - -

PN6

THE DEPUTY PRESIDENT: Yes, I have that on file, thank you.

PN7

MR SKENE: Well, that declaration is relied on in support of the application to satisfy the Commission that the agreement indeed meets the requirements of the Act. It sets out a number of relevant events which I will run through very briefly, your Honour. The parties have been negotiating for this agreement for some time. Copies of the agreement were circulated first to employees on 17 July 2003. Meetings were held between the employees and the union and between employees and the company to explain the agreement and to permit employees to ask questions about it.

PN8

There was a meeting then on 22 July between the company and employee representatives and the union. And following that meeting on 25 July there was a vote. That vote resulted in the agreement being voted down. So the parties continued discussions. It was narrowly voted down, I should say. There were further meetings between the union and employer representatives in the company through July and August. Relevantly, on 25 August, there was a meeting where a further agreement was reached, and that agreement was put to employees on 26 August, and again at that meeting there was a mass meeting where the terms of the agreement were explained to employers by both company representatives and the union, and the details of that are set out in Mr Garaty's affidavit - declaration, your Honour.

PN9

At that meeting the agreement was approved by employees and six additional matters were also approved to be included in the agreement. All the parties consented to those six matters being included in the agreement. Following that, your Honour, on 2 September, the application was filed in the Commission within the 14 day time period. In terms of the requirements of the Act, section 170LT requires you to have regard to whether or not the agreement satisfies the no disadvantage test. It is submitted that it does do so. The statutory declaration makes clear that none of the terms of the agreement are less favourable to employees than the terms of the award.

PN10

As I have said, the award is to be read in conjunction with the award. So the rates of pay are provided in schedule 1 of the agreement and they are in excess of the rates - significantly in excess of the rates provided in the award. On that basis, it is submitted to you that there is no reduction in terms and conditions in the relevant way, and the agreement satisfies the no disadvantage test. The next requirement for you to have regard to, your Honour, is whether the agreement was approved by a valid majority of employees. It is submitted that it was, on 26 August 2003, and my friend can confirm this. It was the union that conducted the vote. But on my instructions, some 47 out of the 60 employees to be covered by the agreement voted, and 34 of those 47 voted in favour of the agreement.

PN11

In terms of the explanation of terms of the agreement, your Honour, there were two votes. The agreement has been explained to the employees on a number of occasions. The employees are clearly well appraised of the agreement and its terms. They participated in negotiation, in particular in reference to the six matters that have been added to the agreement. Prior to both votes the agreement was explained to employees and they had an opportunity to ask questions about it. So on that basis, it is submitted that the agreement was properly explained to employees, and the requirements of the Act have been satisfied in that respect.

PN12

The agreement contains a dispute settlement clause, your Honour, that is set out in schedule 4 of the agreement. It is a normal procedure which progresses for the resolution of disputes at the local level through to a final referral to the Commission, and that referral is for conciliation and/or arbitration as required. The final requirement under LT, your Honour, is the nominal expiry date of the agreement, and it is within the terms of the Act. It is a three year agreement form the date of certification.

PN13

So on that basis, your Honour, it is submitted that the requirements of the Act are satisfied, and it is submitted that the Commission can properly certify the agreement. Finally, I might just add in relation to section 170LU, there are no relevant considerations, it is submitted, for your Honour under that section. So on that basis, the parties request the Commission to certify the agreement. There is the matter of the six additional things to be included in the agreement, your Honour, and the company would be willing to make any undertakings necessary to satisfy yourself that the agreement may be certified in relation to those matters.

PN14

THE DEPUTY PRESIDENT: Yes, thank you. Ms White.

PN15

MS WHITE: Your Honour, I adopt and accept the submissions of my friend, but if I could just say, the union and the company have reached an agreement, which is approved by the majority of employees at Toll Geelong, which contains a number of items not in the document currently before you. I would like to hand up an exhibit which are the replacement pages to the document, and these pages aren't in contention. It is what my friend referred to earlier.

PN16

THE DEPUTY PRESIDENT: Yes.

PN17

MS WHITE: Thank you.

PN18

THE DEPUTY PRESIDENT: If it is the case, as I am advised by Mr Skene, that these six items were in fact voted on along with the rest of the agreement, then as far as I am concerned they form part of the agreement, and to my way of thinking, the document that is before me is simply not the agreement that was voted upon. On that basis I don't find any reason to require any undertakings from either party, assuming you can assure me that that is in fact the case, Ms White?

PN19

MS WHITE: Yes, I can, your Honour, and that is why we have the Toll Geelong Committee here today.

PN20

THE DEPUTY PRESIDENT: Yes. Yes, thank you.

PN21

MS WHITE: So other than that, we would ask you to certify the document. Thank you, your Honour.

PN22

THE DEPUTY PRESIDENT: Yes. Thank you. Look, on the basis of the submissions that have been made to me today, and on the basis of the documentation that has been provided, which I have had the opportunity to go through in some length, I am satisfied that the application to certify the Toll Ports Pty Limited Geelong Enterprise Agreement 2003 complies in all relevant respects with the requirements of the Act, and I am satisfied that the agreement itself is able to be certified and I intend to do so. The certification of the agreement will be subject to the amending of the document that is currently before the Commission by the insertion of the pages which were handed up by Ms White, and which I might mark for the purposes of the record.

EXHIBIT #MUA1 AMENDING PAGES

PN23

THE DEPUTY PRESIDENT: The agreement will be certified with effect from today's date, 19 September 2003 and will expire three years hence, which would make the expiry date 18 September 2006. If there is nothing further, I think that just about finishes us. The matter is adjourned, thank you.

ADJOURNED INDEFINITELY [2.43pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MUA1 AMENDING PAGES PN23