AG2003/8069, Transcript of Proceedings [2003] AIRCTrans 5412 (8 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 5411

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2003/8069
AG2003/8070

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Maintenance Resource Engineering
Pty Limited and Another for certification
of the Maintenance Resource Engineering
Pty Limited Shell Geelong Refinery Electrical
Enterprise Agreement 2003-2005.

APPLICATION TO TERMINATE AGREEMENT
(VALID MAJORITY)

Application under section 170MG by
Maintenance Resource Engineering Pty
Limited to terminate the Maintenance
Resource Engineering Pty Limited Shell
Geelong Refinery Electrical Enterprise
Agreement 2003-2005

MELBOURNE

11.21 AM, THURSDAY, 20 NOVEMBER 2003

PN1

MR J. DOUGLAS: I seek leave to appear for Maintenance Resource Engineering Pty Limited.

PN2

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Douglas.

PN3

MR DOUGLAS: Your Honour, there are three applications before the Commission this morning. The first one that I would deal with would be the application to terminate the existing electrical agreement on site being the Maintenance Resources Engineering Pty Limited Shell Geelong Refinery Electrical Enterprise Agreement. In support of that application an affidavit was filed on behalf of my client by Mr Edward Lockyer who is the Senior Manager for the company and unless there are any matters which the Commission for me to directly address we would seek the approval of that application.

PN4

THE SENIOR DEPUTY PRESIDENT: Well, I have no questions. Do you want to proceed with the other application?

PN5

MR DOUGLAS: As your Honour pleases. The second - or there are two applications, the first one, application for certification of an agreement with the electrical employees to which my client and the CEPU are parties. In relation to that application, sir, I received a communication from your office indicating a concern which the Commission had in relation to the fact that in the statutory declaration or statutory declarations executed by Mr Lockyer on behalf of my client and Mr McCallum on behalf of the CEPU, that in paragraph 6.2 there was no date specified as to when the agreement was made.

PN6

Your Honour, if I could address that issue and in doing so refer to paragraph 6.4 of the statutory declarations which sets out the process that was followed in relation to the matter and in specific terms recording the fact that there were a number of meetings between my client and the CEPU and that a copy of the agreement was provided to all the employees on 23 September. There was a meeting the following day in relation to the agreement at which the on site representative informed me that the employees had no concerns and in fact unanimously supported the agreement.

PN7

I informed him that whilst that was very good that the Act required that the employees have that agreement for a period of 14 days prior to them having a vote on the matter. That period then elapsed and it was around about 14 October, my recollection, that he informed me that the employees had in fact supported the agreement, how they had had another vote during the morning tea break, they had unanimously supported the agreement and at the same time they unanimously supported the termination of the LK agreement.

PN8

So we would seek that the Commission waive the requirement in relation to the statutory declarations insofar as paragraph 6.2 is concerned, accept our undertaking in accordance with the terms of the Act, that the agreement was made on the date indicated and on which date the agreement was signed by the proposed parties to the agreement. And that then leaves me, sir, with one final matter that being the application under section 170XF which seeks that the National Electrical, Electronic and Communications Contracting Industry Award be designated for the purposes of the no disadvantage test under the Act.

PN9

I can inform the Commission that my client is not party to any award which would cover the work nor it is a member of an employer organisation which is party to any award that would cover the work. It was agreed in negotiations between my client and the CEPU that that was the appropriate award which covers electrical work on construction sites. So unless the Commission has any questions in relation to the matter we would seek that the three applications be approved.

PN10

THE SENIOR DEPUTY PRESIDENT: There are, in fact, three applications before the Commission in this matter. The first for the termination of an existing agreement. The second for the determination of a designed award for the purposes of the certification of another agreement and the application for certification of that agreement. In relation to the first of the applications I will grant that application to terminate the Maintenance Resource Engineering Pty Limited Shell Geelong Refinery Electrical Enterprise Agreement 2003 to 2005.

PN11

In relation to the section 170XF application, on the basis of the material that is before me and the submissions made today, I am satisfied that I should determine that the National Electrical, Electronic and Communications Contracting Industry Award is the appropriate award for the purpose of determining whether the proposed agreement passes the no disadvantage test and on the basis of the statutory declarations that have been filed by the parties to the proposed agreement and the submissions made today I am of the view that, having regard to the applicable provisions of the Act, I am required to certify the agreement.

PN12

In particular I note that the Commission is now in possession of information as to the date upon which approval was given and is prepared to accept that information as supplied by the representative of the employer today. I would indicate that both the termination of the existing agreement and the certification of the new agreement will be given the same date of effect so that there is hopefully no hiatus created by the actions that we are now taking. Appropriate orders, determinations and certifications will be issued as soon as possible and provided to the parties and the matters are adjourned on that basis.

ADJOURNED INDEFINITELY [11.21am]