AG2002/6748, Transcript of Proceedings [2003] AIRCTrans 454 (12 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2002/6748

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia and
Another for certification of Linehaul NT Pty
Limited Enterprise Agreement 2002

ADELAIDE

11.45 AM, WEDNESDAY, 29 JANUARY 2003

PN1

THE COMMISSIONER: Appearances, thanks.

PN2

MR L. BELL: I appear on behalf of the Transport Workers' Union of Australia.

PN3

THE COMMISSIONER: Thanks, Mr Bell. You are the only appearance for today. You might like to talk to this application.

PN4

MR BELL: Before the Commission today is an agreement signed by Mr Rick Andrews for the company, Mr John Allen, the Federal Secretary, and Mr Alex Gallagher, the Branch Secretary, which has been lodged with the Commission under division 2, section 170LJ of the Australian Workplace Relations Act 1996. The TWU is the organisation legally entitled to represent the interests of the employees covered by this agreement. The Transport (Workers Long Distance Drivers) Award 2000 is the award which underpins this agreement.

PN5

The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declarations signed by Mr Allen for the union and Mr Andrews for the company. That is that the agreement does not in relation to the terms and conditions of employment disadvantage the employees who are covered by the agreement. The agreement at clause 11 includes procedures for preventing and settling disputes between the parties and in particular allows for a referral to the Industrial Relations Commission for settlement at clause 11.6.

PN6

The agreement applies only to a part of the single business and employees covered by the agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote was taken on 12 December 2002 at which a majority of employees voted in favour of the agreement. The agreement provides for consultation with employees in relation to any changes that may affect those employees at clause 7 and the total number of employees covered by the agreement is 16.

PN7

In respect of section 170LT(7) of the Act there are no relevant employees to be considered. Commissioner, apart from a few other housekeeping matters I would provide an updated front page which should rectify some of the references in relation to the dispute settling procedure.

PN8

THE COMMISSIONER: Yes, in the agreement the dispute settling procedures clause was listed as clause 12 in the arrangement but it is actually clause 11, is that the issue?

PN9

MR BELL: Yes. I'm not sure if this one is the one that has a question in relation to part of a single business but it is part of a single business.

PN10

THE COMMISSIONER: Part of a business.

PN11

MR BELL: Yes. Pursuant to Part VI(b), division 4, section 170LT of the Act, we seek the Commission to certify this agreement referred to as Linehaul NT Proprietary Limited Enterprise Agreement 2002, be operative from today's date expiring on 29 January 2005. Unless you have anything further, Commissioner.

PN12

THE COMMISSIONER: Now, Mr Bell, are you aware of where Mr Andrews for the company might be?

PN13

MR BELL: Yes, he was here earlier, Commissioner, but he has some rather pressing personal matters. He did make apologies to me and I indicated to him that I should be able to clarify any issues that you may have.

PN14

THE COMMISSIONER: Yes. I don't know whether my associate has mentioned, but there are numerous issues in regard to Mr Andrew's statutory declaration. Now, I think most of these can be sorted out and I do understand how these statutory declarations or the format of them is complex and frankly it can cause lots of trip-ups for people who don't practise regularly in this jurisdiction. First of all, I don't have any problem with the statutory declaration from John Allen.

PN15

MR BELL: Yes, I believe that we may have corrected - like, with our statutory declaration would answer all the questions that you may have that the company has omitted to answer correctly.

PN16

THE COMMISSIONER: Yes, I think that is fine, but just in relation to Mr Andrews' statement and I think frankly Mr Andrews is going to have to submit a fresh statutory declaration. Now, that shouldn't hold up the certification of this agreement. I think I can indicate to you today that having perused the agreement and looked at the substance of it and so on that I'm satisfied that it can be approved and I will certify the agreement but certification will be subject to a new statutory declaration being filed by Mr Andrews and the issues that I have with it are as follows. On 2.4 of his statutory declaration he needs to answer that question. I mean:

PN17

Does this agreement apply to the whole or only part of a single business?

PN18

The answer is part, as I understand it, and:

PN19

If part, is the single business a geographically distinct part or distinct operation or organisational unit?

PN20

The answer there, as I understand it, is yes.

PN21

MR BELL: That is correct, Commissioner.

PN22

THE COMMISSIONER: That blends in with Mr Allen's statutory declaration.

PN23

MR BELL: The company operates some five separate entities.

PN24

THE COMMISSIONER: Yes.

PN25

MR BELL: This one is based in Alice Springs and that is why it is part of the whole business.

PN26

THE COMMISSIONER: Part of the whole, yes. That is my understanding of it as well. 6.2 is not answered in his statutory declaration and it should be answered. This was filed within time, wasn't it?

PN27

MR BELL: Yes, it was, Commissioner.

PN28

THE COMMISSIONER: Yes. There's been other agreements I've had this morning which have been slightly out but this was filed within time, so the date should be - - -

PN29

MR BELL: The date was actually 12 December.

PN30

THE COMMISSIONER: Yes. The date should be listed there. 6.5 - - -

PN31

MR BELL: That is incorrectly answered there.

PN32

THE COMMISSIONER: Yes, well, 6.4 and 6.5 don't actually fit in and again they need to harmonise with 6.4 and 6.5 of Mr Allen's statutory declaration. Mr Allen says that the agreement does not cover anyone who is described in 6.5 whereas Mr Andrews says it does and then he proceeds to - - -

PN33

MR BELL: To indicate that there's none.

PN34

THE COMMISSIONER: - - - give a contradictory answer in 6.5. 6.8:

PN35

Did the explanation of the terms of the agreement take place in ways that were appropriate having regard to the persons, particulars, circumstances and needs?

PN36

He has answered that as no and, I mean, if he wants to stick by no, then I certainly won't be approving the agreement. I'm assuming here that again the answer is yes or I suppose the reality is that if there's no one in those categories of non English speaking background, young persons, etcetera, well, the answer is not applicable, that is the correct answer. 7.4, he has answered 7.4 and does not have to answer it at all because in 7.2 he has already indicated no. 7.6 he has answered incorrectly, that is:

PN37

Does the agreement include procedures for preventing and settling disputes?

PN38

He has answered no. Well, clearly the answer is yes because clause 11 provides for that. 7.8 he has answered incorrectly:

PN39

Has the agreement entered a bargaining period?

PN40

He said yes and from the union's statutory declaration I note that it has not entered a statutory - has not entered a bargaining period. You have picked up the other issue, of course, about the small reference to the numbering of the different clauses. Look, I would say and I apologise if we are late in hearing this matter this morning if Mr Andrews was here and he has now had to leave and I will ensure that my associate passes on my apologies for that.

PN41

It is important that before we issue certification documentation that we get statutory declarations correct and I think I need to point out to all the parties that statutory declarations are serious declarations and even though I understand the format of these declarations is so confusing to lay people, it is important that we actually get them correct and the statutory declarations on behalf of the union and on behalf of the employer actually are consistent with one another, otherwise I really can't proceed to certify the agreements. However, what I will say - is there anything further, Mr Bell?

PN42

MR BELL: No, we will make sure that we can get that statutory declaration to you as soon as I can.

PN43

THE COMMISSIONER: Yes, and as soon as that is done - I can indicate as soon as that is done I will issue this certification documentation.

PN44

MR BELL: Yes.

PN45

THE COMMISSIONER: What I can indicate then today for the record is that the Commission has considered this application and has perused the terms of the agreement the subject of the application. I have perused the statutory declarations on file of Richard Andrews, Director of Linehaul Northern Territory which is the employer and John Allen, Federal Secretary of the Transport Workers' Union. I have indicated that I have some major problems with the statutory declaration of Mr Andrews but I suspect those problems are problems that have been caused by the complex format of the statutory declaration and they are not matters of substance.

PN46

That being the case, I intend to proceed with the application but indicate that I will be requiring Mr Andrews to submit a fresh statutory declaration before I issue any certification documentation. Next I can say that I have heard from the union today in relation to have this application dealt with and certified under division 2 of Part VI(b) of the Act. I note for the record that the Transport Workers (Long Distance Drivers) Award 2000 is the relevant award for the purposes of the no disadvantage test and I declare finally that subject to a fresh statutory declaration from Mr Andrews the Commission is satisfied that all the necessary statutory requirements for certification of the agreement have been met.

PN47

Accordingly and subject to that new statutory declaration being forthcoming, the Commission hereby certifies the Linehaul NT Proprietary Limited Enterprise Agreement 2002. It will be operative from the date of certification which will be today's date, 29 January 2003, and will continue in operation until when, Mr Bell?

PN48

MR BELL: In my submissions, Commissioner, I indicated an agreement no longer than 2 years. There is a conflict there as well between the company's stat dec and our stat dec. The intent was for a 2-year agreement, so 2005.

PN49

THE COMMISSIONER: Yes. In fact 2 years is the period that is listed in the agreement clause 6.

PN50

MR BELL: Yes.

PN51

THE COMMISSIONER: Date, period of operation. So again I say the agreement will operate from today's date, 29 January 2003, and will remain in force as per clause 6 of the agreement for a period of 2 years therefrom. As we indicated, the formal documentation will follow in the next few days and I think unless there is anything further, Mr Bell, that I think finally disposes of the hearing of the matter this morning.

ADJOURNED INDEFINITELY [12noon]