AG2003/386, Transcript of Proceedings [2003] AIRCTrans 5178 (25 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/386

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application section 170LK of the Act
by Cowara Contractors Proprietary
Limited for certification of the
Cowara Contractors Proprietary
Limited Certified Agreement 2003

PERTH

3.03 PM, FRIDAY, 7 NOVEMBER 2003

PN1

MR J. UPHILL: I appear on behalf of Cowara Contractors Pty Ltd and I should indicate too, your Honour, that with us on the other end of the phone is Mr Ron Gower, the HR Manager for the company and also Mr Michael Sales, the deputy employee representative.

PN2

THE DEPUTY PRESIDENT: Good afternoon Mr Gower and Mr Sales.

PN3

MR R. GOWER: Good afternoon.

PN4

THE DEPUTY PRESIDENT: Mr Uphill, would you wish to commence?

PN5

MR UPHILL: Thank you, your Honour. This is an application that seeks the certification of a section 170LK certified agreement. We rely upon the documentation that has been filed with the Commission in order to satisfy the legislative requirements. I think it should be clear that the agreement is with a constitutional corporation and it applies to part of the operations of the business of Cowara Contractors. That part involves the truck drivers and fork lift operators employed by the company, of which there are I think a total of 14 employees.

PN6

Also, your Honour, it should be clear that a letter was given to employees with a copy of the proposed agreement, that occurred on 18 August. Along with that there was individual discussion with employees about the content of the agreement. We say that the explanation was appropriate for the needs of all employees and there was an opportunity for employees to ask questions about the terms of the agreement. They had 14 days in which to consider the agreement and after that time a ballot was taken and a valid majority of employees support the agreement.

PN7

I can also indicate to you that with respect to the content of the agreement it does, in our view, satisfy the requirements of the legislation in that you will notice there is a disputes settling clause, in clause 15, and also in clause 2 it specifies the term of the agreement, which is for a period of three years from the date of certification. The actual agreement itself, your Honour, was signed on 15 September and filed in this Commission on 25 September so it was within the 21 day requirement in the legislation.

PN8

Lastly, I just need to observe that the agreement passes the no disadvantage test. We have supplied information which - detailed calculations indicating that that is the case and that is in comparison to the State Transport Workers Award which is the point of comparison. Therefore, we would ask that the agreement be certified to apply according to its terms, if it please the Commission.

PN9

THE DEPUTY PRESIDENT: Yes, thank you, Mr Uphill. Can you confirm that the agreement passes the no disadvantage test as of today's date?

PN10

MR UPHILL: I can indeed, your Honour. Since the calculations were done there have not been any adjustments to the state award and, hence, we would say that the agreement passes as at today's date.

PN11

THE DEPUTY PRESIDENT: Thank you for that. I would like to thank the applicant for its assistance in answering all queries expeditiously and thoroughly and I now invite any comments, first, of Mr Gower in support of certification of the agreement. Mr Gower.

PN12

MR GOWER: .....

PN13

THE DEPUTY PRESIDENT: Excuse me one moment, we're just having difficulty actually hearing what you are saying. Well, if you wouldn't mind just starting again and we will see if we can pick up the volume level.

PN14

MR GOWER: Okay. I'm just saying that the management here are all happy with the agreement. We presented it to the employees and they're all in favour of it as well, so we're quite happy with the situation as it is.

PN15

THE DEPUTY PRESIDENT: Thank you, Mr Gower, and you would like to see the agreement certified, is that correct?

PN16

MR GOWER: That is correct, your Honour.

PN17

THE DEPUTY PRESIDENT: Thank you for that. Mr Sales, as the employee representing employees, your views please?

PN18

MR M. SALES: Yes, that's right. All the employees or the majority of the employees are all in favour.

PN19

THE DEPUTY PRESIDENT: You, Mr Sales, would support the agreement being certified by the Commission?

PN20

MR SALES: Yes, I would.

PN21

THE DEPUTY PRESIDENT: Thank you for that. I now then proceed to the certification process noting that this is an application pursuant to Part VIB, Division 2, section 170LK of the Workplace Relations Act 1996 to certify an agreement to be known as the Cowara Contractors Pty Ltd Certified Agreement 2003. Having heard Mr J. Uphill and Mr R. Gower on behalf of Cowara Contractors Pty Ltd and Mr M. Sales on behalf of the employees and having read the statutory declarations of Mr S. Duggan on behalf of Cowara Contractors Pty Ltd and Mr R. Turner on behalf of the employees, I am satisfied that the agreement filed relates to a constitutional corporation, namely Cowara Contractors Pty Ltd, ACN059240498.

PN22

The agreement passes the no disadvantage test. It was made in accordance with section 170LK and a valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved the agreement. The explanation of the terms of the agreement was appropriate. It includes procedures for preventing and settling disputes between the employer and employees whose employment would be subject to the agreement and the agreement specifies a nominal expiry date not more than three years after the date on which the agreement will come into operation.

PN23

I'm further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, the agreement will be certified with effect from 7 November 2003 to operate in accordance with its terms from the same date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [3.10pm]