AG2003/7582, Transcript of Proceedings [2003] AIRCTrans 4938 (6 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2003/7582

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by the Transport Workers' Union of Australia
and Another for certification of the City of
Stirling Enterprise Bargaining Agreement
2003 - Domestic Collections

PERTH

2.28 PM, THURSDAY, 23 OCTOBER 2003

PN1

MR N. HODGSON: Appearing for the TWU.

PN2

MR P. MOSS: Appearing for the employer.

PN3

THE DEPUTY PRESIDENT: I issued what I call an issues report on 18 September which was circulated to both of you. I didn't receive any response from two issues that I raised in that report that caused me some concern. Those issues were the lodgement of the application for certification appeared to be not in compliance with section 170LM, that is within 21 days of the agreement being made or approved; this is a section 170LS agreement. And the other issue was whether employees had access to the agreement in writing for 14 days, at least 14 days before approval was given by them. Are both of you in a position to address me on those issues, in respect of, I should add, that in respect of all of the other requirements for certification, I consider that they have been met. It is just those two issues that I had some concerns over. Are both of you in a position to address me on those issues?

PN4

MR HODGSON: Your Honour, I am in a position to address you on the first issue that you have raised and I apologise for not informing the Commission of our response but I am unaware that we actually received that issue report.

PN5

THE DEPUTY PRESIDENT: I see.

PN6

MR HODGSON: I have just spoken to my friend and he, as well, did not receive the issues report. But nevertheless, in terms of the out of time, I can say that we would be seeking that you exercise your discretion in accordance with 111(1)(r) and extend the prescribed time to lodge the application. I can advise the Commission that there has not been a significant turn over in the work force. And the reasons for the delay are that the agreements are signed here in Western Australia and also need to be signed by our Federal Secretary in Melbourne and sometimes that causes a delay longer than the required 21 days. In terms of the second matter, I am unable to assist you, your Honour, but perhaps my friend may.

PN7

THE DEPUTY PRESIDENT: Yes. There wasn't a bargaining period with respect to this agreement, was there?

PN8

MR HODGSON: I don't think there was. I think the parties negotiated this certified agreement without the union applying to initiate the bargaining period, I believe.

PN9

THE DEPUTY PRESIDENT: Yes, in the statutory declarations, it says, no, the agreement does not end in a bargaining period. And I take it there was no industrial action, protected or otherwise, with respect to the making of the agreement?

PN10

MR HODGSON: No, your Honour. There rarely is with the Transport Workers Union, I can say that with confidence, your Honour.

PN11

THE DEPUTY PRESIDENT: Well they must be very prudent negotiators then, Mr Hodgson.

PN12

MR HODGSON: Thank you.

PN13

THE DEPUTY PRESIDENT: See, the two issues, I suppose, with the 21 days for a section 170LM, in fact, it is actually 170LS(2), which is equivalent to 170LM. And that is that the real intender, I think, now that ensures that applications are made in time. It is also related to when protected action may become unprotected if it is not made within that time. It seems to be the purpose of that provision or one of the purposes of it. It might be something like the, particularly, Mr Hodgson, need to be particularly prudent on when there is any protected action because unless you comply with that, and I am not sure whether people are as familiar with that requirement. If not, it becomes unprotected if the application for certification does not occur within that 21 days with the obvious implications.

PN14

MR HODGSON: Yes. I take that on board, your Honour.

PN15

THE DEPUTY PRESIDENT: Yes. With respect to the 14 days, there are at least 14 days, persons having access to the agreement in writing, you weren't involved in this, Mr Hodgson?

PN16

MR HODGSON: That is correct, your Honour. It was negotiated by Mr Rick Burton, who is a TWU organiser. He would have had carriage of this particular matter. I mean, I can only assume that the required 14 days was provided for in the sense that we are well aware of that requirement and we are well aware of a recent decision of the Commission that went to that matter where an agreement wasn't provided for in 14 clear days.

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR HODGSON: But perhaps my friend could assist.

PN19

MR MOSS: Yes, if I may, sir. The advice that I have been provided with is that a written document or the written agreement was actually provided to the staff and that was at least 14 days prior to the vote being taken.

PN20

THE DEPUTY PRESIDENT: It was, was it?

PN21

MR MOSS: Yes.

PN22

THE DEPUTY PRESIDENT: Okay. What did the statutory declaration say, why did I have a question mark over that?

PN23

MR MOSS: The statutory declaration is the one filed by the employer at 5.6, provided that the document was copied and distributed to all employees.

PN24

THE DEPUTY PRESIDENT: Yes, didn't say when it occurred. What do you say about the extension of time being requested, Mr Moss?

PN25

MR MOSS: Yes, sir, we would actually beg the Commission's pardon to ask for the extension of time. I have spoken to the employer today with regards to that matter. They have had no change over of staff since the vote was taken. They provided a copy of the signed agreement to the union after a 14-day period. Given the delays that the union has in gaining the signatures from over East, that would, at least in my way of thinking, explain why it was delayed beyond the 21 days.

PN26

THE DEPUTY PRESIDENT: Yes. And so you say that I do have 111 powers available to extend that time?

PN27

MR MOSS: Yes, sir, we would ask, well, I say that that is correct. My understanding is that there are a number of decisions which have demonstrated that the Commission has been willing to exercise those powers to extend deadline - - -

PN28

THE DEPUTY PRESIDENT: Yes, well I have myself but then recent decisions of the Commission with respect to Part VIB make it abundantly clear that time frames within the Division are in, apparently, in some sections of the Division, mandatory, which makes it fairly clear that the time frames are either expected to be or have to be complied with. How many people are covered by this agreement, Mr Moss?

PN29

MR MOSS: Four, sir.

PN30

THE DEPUTY PRESIDENT: Four. Yes. And I take it this is one of a number of agreements that the City has entered into to cover all of its work force, is that correct?

PN31

MR MOSS: Yes, that is correct, sir.

PN32

THE DEPUTY PRESIDENT: And it is in similar terms to those other agreements, is it?

PN33

MR MOSS: My understanding is that is the case but I can't be accurate with that one I'm afraid.

PN34

THE DEPUTY PRESIDENT: Yes. Okay. Thank you. Well, I am satisfied from what you said, Mr Moss, that section 170LR(2)(a) has been complied with, while that was unclear in the statutory declarations, it remains a matter for whether, 1, I have the power to and whether I should extend the time with respect to section 170LS. Do either of you have any other submissions to make on that issue?

PN35

MR HODGSON: No, your Honour, only that we believe that the requirements of the Act have been met and we would seek that the agreements be certified on and from today's date.

PN36

THE DEPUTY PRESIDENT: Okay, thank you. Mr Moss?

PN37

MR MOSS: No, we would have nothing further to add, sir.

PN38

THE DEPUTY PRESIDENT: Yes. I will reserve my position on this certification and advise the parties in due course of the outcome of those deliberations. This matter is adjourned.

ADJOURNED INDEFINITELY [2.39pm]