AG2003/365, Transcript of Proceedings [2003] AIRCTrans 5610 (15 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N WT0011
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/365

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by Cervan Marine and
Maintenance Pty Ltd for certification
of the Cervan Marine and Maintenance Pty
Ltd Certified Agreement 2003

PERTH

4.00 PM, MONDAY 1 DECEMBER 2003

HEARING CONDUCTED BY TELEPHONE LINK

PN1

MR O. MOON: I seek leave to appear on behalf of the applicant company and with me I have MS H. DAVIS, the Administration Manager, and on line, on the phone, is a MR P. YORK on behalf of the employees and he will be speaking to you and the court from Port Hedland, sir.

PN2

THE DEPUTY PRESIDENT: Thank you, Mr Moon. Leave is granted. Ms Davies, was it Davies or Davis?

PN3

MS H. DAVIS: Davis.

PN4

THE DEPUTY PRESIDENT: Thank you. And Mr York, good afternoon to you.

PN5

MR P. YORK: Good afternoon.

PN6

THE DEPUTY PRESIDENT: Mr Moon, please proceed.

PN7

MR MOON: Yes, sir. This is an application pursuant to section 170LK of the Workplace Relations Act 1996 for the certification of a certified agreement. The Commissioner will - well, should have in his file a copy of the agreement together with the statutory declaration.

PN8

All the formalities in the - have been conducted in accordance with the provisions of the Act, namely that the Commission may note that attached to the back of a statutory declaration was a copy of the letter that was sent out to all the employees advising them of the procedure and their entitlements under the Act with respect to the agreement.

PN9

Also, sir, attached to the back of the statutory declaration is a ballot declaration completed by the Justice of the Peace who acted as the returning officer for the ballot, for the secret ballot. You will note that, from the declaration completed by the Justice of the Peace, there were 16 ballot papers distributed to the employees. There were 14 returned out of 16 distributed. Of the 14 returned there were 12 votes in favour and two against the agreement. Commissioner, there is - there was some communication between yourself, through your associate and ourselves, regarding various questions that were addressed concerning the agreement and they were responded to in the first instance by ourselves on 25 September, of which the correspondence I would suggest be in your file, and again on 7 November.

PN10

We would assume that by our presence here today that those questions have been satisfied excepting for one question that remained and that was notified to us by way of the facsimile sent to us concerning the listing of the hearing, and that was in relation to a question to clarify how the public holiday payment from the Metal Trades Award was calculated in the comparison document. If I may I will proceed to address that question?

PN11

THE DEPUTY PRESIDENT: Yes, please do, Mr Moon.

PN12

MR MOON: Firstly, let me say that I confused myself because the original calculation that was sent out, and this was probably confusing to the Commission also, I don't know and I'm not trying to presume that, but the calculations that were originally sent in were the correct ones. Why, and I'm not sure why, when I sent in the revised calculations with the letter of 7 November and in that letter I said, on the second page, in addressing how is the public holiday payment calculated for each award, I put in there a note:

PN13

Please note an error in the calculation for factoring in the rate for working the five public holidays per year was detected, has been corrected, and a revised set of award calculations and comparisons is attached hereto.

PN14

In fact, that is an error. The original calculation was the correct calculation and briefly how that was done, your Honour, is that on average we've said that the employees in these categories work five days per year. We wish to - the company wish to have that factored into their - the hourly rate and that was - because it was five days, that is the equivalent of one week, one week, to factor it at a weekly basis, divided by 52, gives us the weekly amount which was, or should have been, $10.42 per week for those five days.

PN15

If you multiply $10.42 by 52 you will arrive at - in the case of the Fitters and Boilermakers C10, $542.20. So, it is just a simple - because it is the - or an average of five days work per year, that was the calculation. Now, that has been added on top of the week that is already in those calculations, that has been added to that. Now, that brings it to a double time equation. Because it is double time and a half the Commission will note that in the agreement itself, and I will direct the Commission's attention, your Honour, to the public holiday clause which appears on page 6, clause 15, at sub-clause 13.4, the remaining half-time, to bring it to double time and a half, it says there that there is a rate of 0.5 times the rate of pay.

PN16

So, that then gives it the full double time and a half for that - sorry, that - for those public holidays if they're worked. The five days is factored in, as I've said, into the rate. The half time is in the clause there. I guess we could have factored the half time in that - really wouldn't affected the comparisons all that much. It would have been a - probably the better way of going about it. What we would say, Commissioner, if the Commission is - sorry, your Honour, if the Commission is satisfied with that explanation, you will know from the comparisons that there is a fairly comfortable buffer between the agreement hourly rate and what the employees would have been entitled to under the award with those elements of their provisions factored in in each case. May it please the Commission.

PN17

THE DEPUTY PRESIDENT: Thank you. I wonder, first, Mr Moon, if you are able to confirm on transcript the correct ACN number of an employer?

PN18

MR MOON: ACN number?

PN19

THE DEPUTY PRESIDENT: Yes. I understand it is 083 002 724 but I seek your confirmation in this hearing that that is correct?

PN20

MR MOON: I think we advised that it - probably so, Commissioner. I think the advice for the - that was contained in the letter of 25 September where you had asked that question and we advised that the correct ACN number was 084 394 392. That is not correct so, I have got it wrong. I beg your pardon, I will correct that on transcript.

PN21

THE DEPUTY PRESIDENT: Well, if it might assist you, you did say in your letter of 25 September 2003 the number you just cited then was incorrect.

PN22

MR MOON: Sorry, I beg your pardon. You are correct, sir, I read that incorrectly, I apologise. The ACN number that is contained in the agreement on page 3, is the correct ACN number, I beg your pardon. And that is, I think as your Honour had previously stated, 083 002 724.

PN23

THE DEPUTY PRESIDENT: Thank you.

PN24

MR MOON: Thank you, I beg your pardon.

PN25

THE DEPUTY PRESIDENT: Yes, I just wanted to ensure that there was clarity and confirmation of that information.

PN26

MR MOON: Yes, sorry. Yes.

PN27

THE DEPUTY PRESIDENT: I move next with a question concerning the no disadvantage test.

PN28

MR MOON: Yes, sir.

PN29

THE DEPUTY PRESIDENT: I ask if you can confirm that the agreement passes the no disadvantage test as of today's date?

PN30

MR MOON: Yes, it is our belief that that is so, your Honour, that it passes the no disadvantage test as of this date.

PN31

THE DEPUTY PRESIDENT: Thank you. In relation to the question which you have just made some detailed submission on, which is the public holiday payment calculation from each award, you've indicated to me that the explanation given on page 2 of your letter of 7 November 2003 was not the correct one but the original explanation was the correct explanation.

PN32

MR MOON: Sir, the explanation that was given in the letter of 7 November, on page 2, was the correct explanation. It was the re-working of the calculations and the revised calculations that I sent down were incorrect. The original calculations were in fact the correct ones.

PN33

THE DEPUTY PRESIDENT: Thank you. And for clarity and confirmation can you refer me to the documentation which you did supply to the Commission, which is on the file, which confirms the correct figure for that payment?

PN34

MR MOON: Yes, sir. In fact I brought copies with me of the original calculations so the - so we can untangle this confusion, if it pleases, your Honour.

PN35

THE DEPUTY PRESIDENT: I do have a copy here but please submit it, a further one, if you would wish.

PN36

MR MOON: Just to make sure that we are talking to the same document. So, sir, using the - - -

EXHIBIT #1 - ORIGINAL CALCULATIONS

PN37

MR MOON: Sir, using the Fitter and Boilermakers, the C10 as the example, if I may?

PN38

THE DEPUTY PRESIDENT: Yes.

PN39

MR MOON: The calculation there showed that, calculated in accordance with the award with all those elements and provisions factored in, comes to a rate of $20.72 and the agreement hourly rate is $25.84. That is the - to give an example of the calculations to which I refer.

PN40

THE DEPUTY PRESIDENT: The public holiday payment, based on an average of five days per year, is $10.42 on that document?

PN41

MR MOON: Yes, sir, per week.

PN42

THE DEPUTY PRESIDENT: Per week?

PN43

MR MOON: Yes.

PN44

THE DEPUTY PRESIDENT: Thank you. Thank you for that explanation.

PN45

MR MOON: Okay.

PN46

THE DEPUTY PRESIDENT: I wonder if Ms Davis would like to add any comments in support of the certification of the agreement?

PN47

MS DAVIS: No, thank you.

PN48

THE DEPUTY PRESIDENT: Do you support its certification?

PN49

MS DAVIS: Yes, I do.

PN50

THE DEPUTY PRESIDENT: Thank you. Mr York, I understand in Port Hedland, I would seek your views on the certification of the agreement by the Commission?

PN51

MR YORK: Yes, sounds all fine and fair. Most of us are in favour of what the proposal is. So, no dramas whatsoever.

PN52

THE DEPUTY PRESIDENT: So, on behalf of the employees you are in support of the agreement being certified by the Commission?

PN53

MR YORK: Absolutely.

PN54

THE DEPUTY PRESIDENT: Thank you. That is sufficient for that purpose.

PN55

MR YORK: Thank you.

PN56

THE DEPUTY PRESIDENT: Thank you for that. I now turn to the certification of the agreement 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 Cervan Marine and Maintenance Pty Ltd Certified Agreement 2003. Having heard Mr O. Moon and Ms H. Davis on behalf of Cervan Marine and Maintenance Pty Ltd, Cervan - - -

PN57

MS DAVIS: Cervan.

PN58

THE DEPUTY PRESIDENT: Cervan, thank you. And Mr P. York on behalf of the employees and having read the statutory declarations of Ms H. Davis on behalf of Cervan, I am satisfied that the agreement filed relates to a constitutional corporation, namely Cervan Marine and Maintenance Pty Ltd, ACN 083 002 724. 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 the 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 would come into operation.

PN59

I am further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Today, pursuant to section 170LV of the Act, the applicant employer has signed an undertaking in relation to clause 23 of the agreement which was also previously signed by an employee and was handed to me. Taking this and all other relevant considerations into account I will certify the agreement to take effect from 1 December 2003 to operate in accordance with its terms as stated. The formal certificate will issue in due course. These proceedings are adjourned.

ADJOURNED INDEFINITELY [4.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 - ORIGINAL CALCULATIONS PN37