AG2004/270, Transcript of Proceedings [2004] AIRCTrans 1007 (19 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2327

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/270

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LJ of the Act
by Athena Investments Proprietary Limited
and Others for certification of the Port Curtis
Construction Engineering QAL Operations
Certified Agreement 2003

BRISBANE

10.15 AM, THURSDAY, 4 MARCH 2004

PN1

THE COMMISSIONER: Okay, are we ready? Okay, then, if I could take appearances, thanks.

PN2

MR R.J. McPHERSON: I appear on behalf of Australian Industry Group Industrial Organisation of Employers, representing Athena Investments Pty Ltd. May it please.

PN3

THE COMMISSIONER: Good, thanks, Mr McPherson.

PN4

MS Y. D'ATH: On behalf of the Australian Workers' Union, Queensland Branch.

PN5

THE COMMISSIONER: Thanks Ms D'Ath. Mr McPherson.

PN6

MR McPHERSON: Thank you, Commissioner. Commissioner, this is a Section 170LJ agreement, made pursuant to the Workplace Relations Act 1996. The agreement has been made between Athena Investments Pty Ltd and the AMWU and the AWU. The Commission has before it statutory declarations from all of those organisations, specifically from Mr Andrew Rhodes in his capacity as General Manager with the employer. Commissioner, the agreement has at clause 27 a disputes resolution procedure. It has a nominal expiry date of 31 October 2005. Commissioner, the agreement was approved on 5 January 2004 and filed on 20 February 2004.

PN7

The agreement accordingly is outside of the 21 days required by the legislation. In that respect, Commissioner, I would seek the Commission to exercise its discretion to enable the certification of the agreement. I can assist the Commission by advising that during that period the workforce has remained stable and no relevant employees would be disadvantaged by the certification of the agreement in that regard.

PN8

THE COMMISSIONER: Yes, I'm not sure whether it's an issue of discretion. I think it's more possibly an issue of whether the agreement has nonetheless substantially complied with the requirements of the Act. Now, for the purpose of satisfying myself to that end, is there a reason for the delay, first of all?

PN9

MR McPHERSON: Commissioner, I wouldn't like to point the finger of blame at any particular party for the delay in the certification - - -

PN10

THE COMMISSIONER: Well, there's two unions bound by this agreement, isn't there, so it must be the one who is not here today.

PN11

MR McPHERSON: - - - and where you've got more than one union and given that one of those unions isn't here today, Commissioner, it may be easier to take aim at the absent party, but I'll avoid that temptation and simply say it does take time, Commissioner, where there are multiple unions, on occasion, to arrange for the appropriate official to execute the agreement and that's a dilemma that the parties faced.

PN12

THE COMMISSIONER: So the general reason is as a result of administrative delays owing to the multiple parties to the agreement.

PN13

MR McPHERSON: Well put, Commissioner.

PN14

THE COMMISSIONER: Okay, then. Was there industrial action taken over the making of this agreement at all?

PN15

MR McPHERSON: Not that I'm aware of, Commissioner.

PN16

THE COMMISSIONER: The reason I raise this, and I raise this with other parties, for the purposes of considering whether there has been substantial compliance with Section 170LM of the Act, the Commission needs to consider the implications of Section 170MS of the Act, which interacts with Section 170LM. So there is no issue in relation to Section 170MS of the Act as there was no - I think there was no bargaining period, in any event, from the statutory declaration, if I recall.

PN17

MR McPHERSON: That's correct, Commissioner.

PN18

THE COMMISSIONER: Right. Has the agreement been in formal operation since it was approved?

PN19

MR McPHERSON: Commissioner, I would think that, yes, it has been, but just from what date the parties may have agreed to apply it I couldn't assist the Commission with. The nature of the agreement is that it covers work that the company may get from time to time at the QAL site, so I'm just not aware whether they have been awarded any contracts that would enliven the agreement.

PN20

THE COMMISSIONER: I see. So it's only triggered when the work is being carried out, in effect. See, clause 21 says that these rates include the - it goes on to say:

PN21

These rates will be increased by a further 3.5 per cent effective from 1 November -

PN22

so there was an increase on the 1st - sorry. I don't think my question therefore is relevant, because the rates as specified were lifted on 1 November 2003 and the next adjustment isn't till the end of the year, this year. So for purposes of when the agreement kicks in, well, we presume that there's no issue as a consequence of backdating of availability.

PN23

There's the issue about whether the agreement has actually been formally in force, but again that's a question of whether there are people working under it. But, look, that said, I'm of the view that in all of the circumstances that there's substantial compliance with Section 170LM of the Act and in particular I'm persuaded in that view that there has been no industrial action underpinning the making and approval of this agreement. Now, do you have anything else to add to me, Mr McPherson?

PN24

MR McPHERSON: Nothing further, Commissioner.

PN25

THE COMMISSIONER: Can I just take you to - both parties - clause 27; that's the disputes procedure. There are, as we know, two union parties to this agreement and it would come as an absolute surprise to me if the workforce was 100 per cent unionised. The only requirement that I do need you to consider is that Section 170LT(8) of the Act requires that there be a grievance procedure and that grievance procedure needs to be applicable to all of the employees subject to the agreement.

PN26

Now, it would probably not be known to you necessarily whether or not there are employees who are to be covered by the agreement who are not members of either of the unions who are parties to the agreement. As it's structured, the disputes procedure is based on moving through the disputes escalation process via the - well, via either a procedural or representational role of the relevant unions. And the question to you is, for purposes of satisfying LT(8) of the Act, what does a person who is not a member of a union do in such circumstances? And that is, is that person also afforded the same procedural or representational rights? That is, does a member of a union quite simply - is able to access the same disputes procedure that's here specified or whatever is the case?

PN27

MR McPHERSON: Commissioner, if I could assist the Commission in respect of that query, I think the practical application of the disputes procedure would be such that any team member who had an issue that they wished to raise could do that and could progress that matter through the disputes procedure whether or not they chose to seek the representation of the delegate or the union in progressing the matter through the disputes procedure. So in essence, Commissioner, they're free to choose to utilise the assistance of the union in progressing the matter or not.

PN28

THE COMMISSIONER: Okay. No, that satisfies me. Can I take that as a form of - as an undertaking that's how the agreement - - -

PN29

MS D'ATH: Certainly from the AWUs point of view you could certainly take that as an undertaking, Commissioner.

PN30

THE COMMISSIONER: Good, thanks, Ms D'Ath. Mr McPherson, that's your position as well?

PN31

MR McPHERSON: Yes.

PN32

THE COMMISSIONER: Good, no, thank you.

PN33

MR McPHERSON: I will make that as an undertaking.

PN34

THE COMMISSIONER: That satisfies the requirements of Section 170LT(8) of the Act. You see what I mean, that it's a blanket clause. It means it has to cover everyone.

PN35

MR McPHERSON: Yes.

PN36

THE COMMISSIONER: And as a consequence you have to be satisfied that it does cover everyone for the purposes of the discretion to be satisfied. But that said, look, I have no other queries or difficulties with the agreement whatsoever. I'm satisfied, particularly in light of the undertaking, but also in a more general sense, that the agreement meets all the requirements of the Act and has been made in conformity with the rules of the Commission and I certify the agreement to operate on its own terms from today's date through to - pursuant to clause 4 of the agreement, if I recall, to operate through to 31 October 2005. I'm correct, I think, in that. We'd best check before I - - -

PN37

MR McPHERSON: The nominal expiry date is 31 October 2005.

PN38

THE COMMISSIONER: Yes, 31 October 2005, good. Okay, we're adjourned. Thanks very much.

ADJOURNED INDEFINITELY [10.26am]