AG2003/9993, Transcript of Proceedings [2004] AIRCTrans 104 (8 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N F057

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/9993

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Transport Workers' Union of
Australia-Western Australia Branch and
Another for certification of the Brambles
Western Australia Leinster-Leonora
Agreement 2003

PERTH

10.42 AM, TUESDAY, 16 DECEMBER 2003

PN1

MR. N.J. HODGSON: I appear on behalf of the Transport Workers Union of Australia, if it please the Commission.

PN2

THE DEPUTY PRESIDENT: Thank you Mr Hodgson, could you please commence.

PN3

MR HODGSON: Thank you. This is an application made pursuant to 170LJ of the Workplace Relations Act 1996 and what we are seeking to do, your Honour, is to certify an agreement known as the Brambles Western Australia Leinster-Leonora Agreement 2003. The parties to the agreement are the Transport Workers Union of Australia and Brambles Australia Limited trading as Brambles Industrial Services. The application was filed out of time, your Honour, therefore we request that the Commission exercise its discretion pursuant to section 111(1)(r) of the Act.

PN4

The reason the application was filed out of time was the difficulty in getting the agreement signed and the statutory declarations prepared by the employer and then our branch secretary in Western Australia and then the federal secretary of the TWU, who is located in Melbourne. We had difficulty in arranging all that documentation within the prescribed 21 days. I can say that the composition of the workforce has not changed significantly within that period, ie, the time when the agreement was approved by a valid majority on 3 October and when the application was filed.

PN5

In terms of the statutory declarations, the parties have filed those and lodged them in the Commission as indicated and we believe that the requirements of the Act and regulations have been met. In particular, the agreement relates to a constitutional corporation called Brambles Australia Limited trading as Brambles Industrial Services. The TWU has at least one member employed in the part of a single business to which the agreement relates and the union is entitled to represent the interests of that member.

PN6

We say that the agreement passes the no disadvantage test as at today's date as the terms and conditions of the agreement are superior to those in the award. Also, a valid majority of persons that are subject to the agreement have genuinely approved the agreement and that was put to the members on 3 October 2003. Now, prior to that, your Honour, reasonable steps were taken to ensure that a copy of the agreement was made available to the workers in accordance with the Act.

PN7

Meetings were held between the company, the union, officials and employees to negotiate the agreement and the union can assure the Commission that the employees understand the terms and conditions of the agreement, and as well we have explained the terms of the agreement in accordance with the Act. The agreement has a dispute settling procedure at clause 8 and it has a nominal expiry date of 30 June 2006, so we would submit on behalf of both parties, because I note there is no appearances in Sydney at this stage, that we submit - the party submit that the requirements of the Act have been met and therefore we would ask that the agreement be certified, if it please the Commission.

PN8

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Hodgson. First, in relation to the signatory clause of the agreement my understanding is that immediately prior to the hearing an amendment has been made as was required by the notice of listing and I understand that you have made those on behalf of the applicant and the respondent and I just seek your formal confirmation for the record.

PN9

MR HODGSON: Yes, your Honour. I can confirm that clause 22: Signatures, have been amended by including the correct name of the union which is the Transport Workers Union of Australia in two places, one for the signature of the branch secretary and one for the signature of the federal secretary. The name of the company has been amended to read: Brambles Australia Limited trading as Brambles Industrial Services and they were the parts of clause 22 that have been initialled and dated by myself today, your Honour.

PN10

THE DEPUTY PRESIDENT: Thank you, Mr Hodgson. In relation to a question in the employer statutory declaration which was number 7.4, the employer was required to confirm on transcript that indeed there is no reduction at all as per question 7.4 of the employer statutory declaration, given that the union response was answered thus. I wonder in the absence of the employer which is unfortunate, given that it was the employer statutory declaration, not the union's, if you would be able to, nevertheless, make some point of clarification about what appears to be an omission in its statutory declaration.

PN11

MR HODGSON: Yes. Well, I can refer you to the questions - or part 7.4 of the Transport Workers Union stat dec, I think I'm looking at it now. But I can confirm anyway, your Honour - sorry, if the paperwork is a bit incorrect, but I can confirm that on the Transport Workers statutory declaration at 7.4, we have indicated that there is no reduction in terms and conditions of the employers covered by the agreement, and we've indicated as such on our stat dec. So, I can only assume that the employer stat dec should read the same, because in my understanding there was no dispute about that particular part of the stat dec, so it appears it is just an omission on behalf of the employer.

PN12

THE DEPUTY PRESIDENT: Thank you. That addresses that point. In relation to the application for the extension of time, I note that approximately 34 days is a long period of time by way of an out of time application, given that the requirement is for 21 days after approval by a valid majority and I am aware from a written submission that there was a problem with the document being lost in the post. But, nevertheless, I would just draw that to your attention for your comment given that it is important for these applications to be dealt with as expeditiously as possible, given the commitments that are intended to apply in them.

PN13

MR HODGSON: I can assure the Commission that the Transport Workers' Union takes that part of the Act very seriously and we appreciate the requirements placed on the parties to have the documentation prepared expeditiously and within the time frame, but I think the problem in this case notwithstanding the things going missing in the post, was, we have a group of workers in Leonora, which is in the Gold Fields of Western Australia that have to do their part of business, if I can use that term, and it has got to come to both the West Australian branch of the TWU, the Federal branch of the TWU and Brambles in Sydney and I think that would explain part of the delay notwithstanding things going missing in the post.

PN14

But I understand the concern of the Commission in terms of that part of the Act, and for what it is worth, that is one area in the new year that the West Australian branch of the TWU will be examining to see if we can reduce - because I can't commit to completely being able to meet the 21 days, but we are definitely looking at systems in place within the union to try and reduce the number of out of time applications that are made by the West Australian branch.

PN15

THE DEPUTY PRESIDENT: Yes. Thank you for that assurance, that is helpful. Pursuant to section 111(1) of the Workplace Relations Act 1996 I grant an extension of time for the application for the reasons given by the applicant. I now turn to the agreement itself noting that it is an application pursuant to Part VIB, Division 2 of section 170LJ of the Act to certify an agreement to be known as the Brambles Industrial Services Leinster-Leonora Agreement 2003.

PN16

Having heard Mr N. Hodgson on behalf of the Transport Workers Union, the TWU and having read the statutory declarations filed by Mr J. Allan on behalf of the TWU and Ms B. Kestel on behalf of Brambles, I'm satisfied that the agreement filed relates to a constitutional corporation, namely Brambles Australia Limited, ACN 000 164 938. The TWU has at least one member employed in the part of the single business to which the agreement relates and is entitled to represent the industrial interests of the member.

PN17

The agreement passes the no disadvantage test; 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 it. The explanation of the terms of the agreement was appropriate and it includes procedures for preventing and settling disputes between the employer and employees whose employment would be subject to the agreement.

PN18

The agreement also specifies a nominal expiry date of not more than 3 years after the date on which the agreement would come into operation. I'm further satisfied that there are no reasons set out in section 170LU of the Act for refusing to certify the agreement. Thus, the agreement will be certified with effect from 16 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 [10.55am]