AG2004/1073, Transcript of Proceedings [2004] AIRCTrans 1233 (1 April 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1537

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/1073

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Acumen Electrical and Another for
certification of the Acumen Electrical
Enterprise Agreement South Australia 2004

ADELAIDE

11.03 AM, MONDAY, 22 MARCH 2004

PN1

MR PRIEST: I appear for the company. Appearing with me is MS SHARON McCANN.

PN2

MR GATEHOUSE: I am the employee representative.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Priest, I can advise you that I have read both of the statutory declarations and the agreement. The immediate question that I have for you, relative to the statutory declarations, is whether or not Acumen Electrical is a constitutional corporation. Can you advise me of that position?

PN4

MR PRIEST: Excuse me, sir. If by "constitutional corporation" you mean they are a Proprietary Limited company, as such I'm afraid, Acumen Electrical is not.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. You see, to be able to achieve a division 2 agreement, Acumen will need to demonstrate that it is a constitutional corporation. It need not necessarily be a Proprietary Limited company, but in terms of the Corporations Act, it will need to be able to establish to me that it has the status of a constitutional corporation.

PN6

MR PRIEST: Okay, sir. As this is my first experience with such a question, what types of evidence would need to be shown.

PN7

THE SENIOR DEPUTY PRESIDENT: Well, you will need to go to the Corporations Act in that regard. You see, division 2 of the Act is directed at agreements that are reached involving constitutional corporations. The Corporations Act of 2001, I think you will find, is the relevant Act in that regard. The option exists for an employer who is not a constitutional corporation to seek an agreement pursuant to division 3, but that does not appear to provide the option of an LK type agreement. It might be a question that is best left with you to research with your member.

PN8

MR PRIEST: Yes, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Simply put, if the employer is not a constitutional corporation, then pursuant to section 170LI of the Act, I'm not going to be able to progress the application.

PN10

MR PRIEST: Understood, sir.

PN11

THE SENIOR DEPUTY PRESIDENT: Section 170LI is of a character of being an underpinning provision, and without that foundation I can't take the application anywhere.

PN12

MR PRIEST: Certainly, sir.

PN13

THE SENIOR DEPUTY PRESIDENT: So we will need to leave that question aside. Subject to your answer, can I ask whether you are able to provide me with a copy of the notice of intention.

PN14

MR PRIEST: I am, sir, but not this morning unfortunately.

PN15

THE SENIOR DEPUTY PRESIDENT: I see.

PN16

MR PRIEST: That can be provided this afternoon if necessary but obviously pursuant to the answer to the first question.

PN17

THE SENIOR DEPUTY PRESIDENT: Do you know when that notice of intention was issued?

PN18

MR PRIEST: Yes, sir. Is it contained in the statutory declaration? It is my understanding that the letter was provided on 25 February 2004 and it was in a form prescribed by the Act.

PN19

THE SENIOR DEPUTY PRESIDENT: I take it that in accordance with that statutory declaration, there was no notification at all from a union?

PN20

MR PRIEST: That is correct.

PN21

THE SENIOR DEPUTY PRESIDENT: Was the agreement changed in any way subsequent to 25 February?

PN22

MR PRIEST: No, sir.

PN23

THE SENIOR DEPUTY PRESIDENT: I have no further questions of you relative to the process that was followed. Now, Mr Gatehouse, can you confirm to me that on or about 25 February, you received from your employer a notice of intention to make this agreement?

PN24

MR GATEHOUSE: That is true, sir.

PN25

THE SENIOR DEPUTY PRESIDENT: As I understand it, you are the only employee to be covered by the agreement at the present time?

PN26

MR GATEHOUSE: At the present time, yes, but there is another employee who we have just taken on board.

PN27

THE SENIOR DEPUTY PRESIDENT: You didn't ask for a union to be involved in the negotiation process, and the document given to you on 25 February, was it changed in any form?

PN28

MR GATEHOUSE: No, sir.

PN29

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Mr Gatehouse, I'm going to ask Mr Priest some questions about the agreement. As I've explained to Mr Priest, the extent to which I can consider this application will be entirely dependant upon whether or not the employer is of a legal standing so as to allow me to do that. My questions, they go now to the possibility that I will be able to consider the agreement and hence, I am seeking clarification of the intention of the parties relative to a number of provisions. I'm not inviting Mr Priest to rewrite the document in any way, but I'm inviting him to tell me the intention of the parties in relation to a couple of issues.

PN30

If you disagree with any of his answers, please feel free to hop up and tell me. Can I take it that you have got a copy of the agreement there? You have. If you want to clarify any of my questions, please also feel free to jump up and tell me. Mr Priest, can I take you to clause 2. I take it there that the agreement is intended to have application to all of Acumen Electrical's employees?

PN31

MR PRIEST: Yes, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 10, and to the last paragraph in clause 10? It commences with the words, "in the event that the above travelling allowance arrangement." What does that mean?

PN33

MR PRIEST: Essentially, sir, what that means is the employer and the employee concerned will enter into a commitment whereby the employee can use the company vehicle for private purposes after hours, consistent with perhaps shopping after hours using the van, taking kids to sports practice and things like that, and reasonable use on the weekends, sort of, within the city limits or around the place. They can use the company vehicle for those purposes.

PN34

THE SENIOR DEPUTY PRESIDENT: Is that concept of reasonable use documented?

PN35

MR PRIEST: It is not, at this stage certainly, what will be named as reasonable between the parties.

PN36

THE SENIOR DEPUTY PRESIDENT: If I look at appendix A, am I to take it that appendix A is, in effect, a stand alone document that each employee would sign?

PN37

MR PRIEST: Yes, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: Appendix A commences with the words, "this agreement", but in the sentence number one, it defines the agreement as the Acumen Electrical Enterprise Agreement.

PN39

MR PRIEST: Yes, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: So am I to understand that the reference in appendix A to this agreement is, in fact, a reference to the individual arrangement encompassed within appendix A, rather than to the certified agreement itself?

PN41

MR PRIEST: Yes, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Is appendix A the entirety of the arrangements relative to motor vehicle arrangements?

PN43

MR PRIEST: Yes, as far as documentation to be signed goes, yes, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Priest. I'm sorry. Look, there is one other question. Am I to understand then that wage rates would apply on the basis of the award rates?

PN45

MR PRIEST: As the minimum rates and entitlements? Yes, sir.

PN46

THE SENIOR DEPUTY PRESIDENT: Now, Mr Gatehouse, am I to understand that you agree with all Mr Priest's responses to me?

PN47

MR GATEHOUSE: Yes, sir.

PN48

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Mr Priest, what I propose to do is to give you a period of 1 week. Within that time, you will need to demonstrate to me by way of some form of documentation that the corporate status of Acumen Electrical is such that I can consider it, pursuant to section 170LK or division 2 of Part VIB. I will also need, if I am to consider the application, a copy of the notice of intention to be provided to me within that period. If I don't hear from you within that period, I will take it that the parties don't wish to proceed with the application. If I receive information from you and am still not able to be satisfied as to the status of the employer, then I will re-list the matter.

PN49

If, however, I am satisfied that the status of the employer is such that I can consider it to be a constitutional corporation, and I am satisfied that the notice of intention meets the requirements of the Act, then I can indicate to you now that on that basis, I would conclude that the requirements of section 170LK had been met, that the agreement itself is of a nature and character that meets the requirements of the Act, insofar as it is of a duration envisaged by the Act. It contains the necessary dispute resolution provision, does not contain provisions that are contrary to the Act, and meets the requirements of the no disadvantage test. The most critical issue then becomes that question of the status of the employer.

PN50

MR PRIEST: Yes, sir.

PN51

THE SENIOR DEPUTY PRESIDENT: Are you happy with that approach?

PN52

MR PRIEST: I am, sir, yes.

PN53

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Gatehouse, there is nothing further that you need to do at this stage. The ball is in Mr Priest's court. If I am in a position to certify the agreement, the certificate will be dated from the date upon which I receive that supporting information from Mr Priest. The certificate, when it is sent out to the parties, will identify the various clauses about which I sought clarification. It won't detail the answers I have been given because those are recorded on the transcript.

PN54

On the other hand, if I don't hear from Mr Priest or can't be satisfied as to the status of the application, the parties will need to look for another mechanism whereby the arrangement between them can be regulated. That may include an AWA. Clearly, the Act provides for that but that is a matter at the discretion of the parties. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [11.17am]