AG2003/438, Transcript of Proceedings [2003] AIRCTrans 5623 (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 WT0014

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/438

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Pinetec Limited and Another for
certification of the Pinetec Limited
Certified Agreement 2003-2005

PERTH

4.00 PM, WEDNESDAY, 3 DECEMBER 2003

PN1

MR K.J. DWYER: I appear on behalf of Pinetec Limited.

PN2

MR P. FERREIRA: I appear on behalf of the Construction, Forestry, Mining and Energy Union, sir.

PN3

THE DEPUTY PRESIDENT: Mr Dwyer, please commence.

PN4

MR DWYER: Yes, your Honour. The application before you today is a section 170LK application for a 170LJ agreement, which seeks to be certified under 170LT. The name of the agreement is the Pinetec Limited Certified Agreement and I might point out at this early stage that there were some technical adjustments or some technical difficulties which were recognised with the application and your associate pointed those out. As I understand, they have now been corrected properly to the Commission's satisfaction and the Commission would also be aware that we've - the parties to the agreement have provided statutory declarations and these declarations are furnished for the obvious reason of attesting this.

PN5

The statutory prerequisites that are necessary for the Commission to in fact certify the agreement have been complied with and we say that they have been in accordance with those statutory declarations that have been lodged. Now, as we also say, that in our assessment there is no reason that we are aware of for the Commission not to certify the agreement under section 170LU. We respectively invite the Commission to certify the agreement today, if it please the Commission.

PN6

THE DEPUTY PRESIDENT: Thank you, Mr Dwyer. Mr Dwyer, in relation to the no disadvantage test, I wonder if you can confirm that the agreement passes the no disadvantage test as of today's date?

PN7

MR DWYER: I can do so, your Honour.

PN8

THE DEPUTY PRESIDENT: Thank you. This may be a question perhaps more appropriately directed to Mr Ferreira but it is a question concerning 1.4 of the statutory declaration, which declares that the agreement applied to part of a single business, whereas the advice which has been received from the applicant is, as I understand it, that the agreement applies to whole of a single business?

PN9

MR DWYER: That is correct, your Honour.

PN10

THE DEPUTY PRESIDENT: Before inviting Mr Ferreira to address that, when you mention the title of the agreement, would you wish to add to that 2003 to 2005?

PN11

MR DWYER: Yes, that is correct, your Honour, I overlooked that. It is 2003 to 2005, thank you.

PN12

THE DEPUTY PRESIDENT: Thank you. We have a common title. I have no further questions. Mr Ferreira?

PN13

MR FERREIRA: Yes, sir. I think that was mainly an error on my behalf. Pinetec do have operations down south with regards to ..... and I suppose I was thinking on that side of it, but the agreement applies to 9 Fairford Street, Bassendean, and the whole site there alone.

PN14

THE DEPUTY PRESIDENT: Thank you. So in relation to your statutory declaration, is it correct that in response to question 1.4 that the answer is whole as distinct from part?

PN15

MR FERREIRA: Yes, sir.

PN16

THE DEPUTY PRESIDENT: Thank you. And your submission, Mr Ferreira, is that the agreement should be certified?

PN17

MR FERREIRA: Yes, sir.

PN18

THE DEPUTY PRESIDENT: Thank you. I proceed then to note that this is an application pursuant to Part VIB, Division 2, Section 170LJ of the Workplace Relations Act 1996 to certify an agreement to be known as the Pinetec Limited Certified Agreement 2003-2005. Having heard Mr K. Dwyer on behalf of Pinetec Limited, Pinetec and Mr P. Ferreira on behalf of the Construction, Forestry, Mining and Energy Union, CFMEU, and having read the statutory declarations filed by Mr G. Hedley on behalf of Pinetec and Mr P. Ferreira on behalf of the CFMEU, I'm satisfied that the agreement relates to a constitutional corporation, namely Pinetec Limited ACN 009326756.

PN19

The CFMEU has at least one member employed in the part of the single business to which the agreement relates or indeed to the single business to which the agreement relates and is entitled to represent the industrial interests of the member. The agreement passes the no disadvantage test. It was made in accordance with section 170LJ 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 it specifies a nominal expiry date of not more than 3 years after the date on which the agreement would come into operation.

PN20

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. Accordingly the agreement will be certified with effect from 3 December 2003, to operate in accordance with its terms from that date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [4.08pm]