AG2004/2077, Transcript of Proceedings [2004] AIRCTrans 1288 (5 April 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1553

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2004/2077

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Transport Workers' Union of Australia
and Others for certification of the Hahn's
Haulage Enterprise Agreement 2004

ADELAIDE

9.45 AM, THURSDAY, 25 MARCH 2004

PN1

MR L. BELL: I appear on behalf of the Transport Workers' Union of Australia.

PN2

MR R. KUCZMARSKI: I appear for the Scott's Group of Companies.

PN3

MR BELL: Yes, Commissioner, before you today is an agreement signed by Craig Hahn for the company, Mr John Allen, the Federal Secretary and Mr Alex Gallacher the Branch Secretary. It has been lodged with the Commission under division 2, section 170LJ of the Australian Workplace Relations Act (1996). The TWU is the organisation legally entitled to represent interests of employees covered by this agreement. The Transport Workers' Award (1998) and the Transport Workers' Long Distance Drivers' Award (2000) are the awards which underpin this agreement. The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declaration signed by Mr Allen for the union and Mr Kuczmarski for the company.

PN4

The agreement does not, in relation to the terms and conditions of employment, disadvantage employees who are covered by this agreement and the agreement at clause 25 includes procedures for preventing and settling disputes between the parties and in particular allows the Industrial Relations Commission to settle any disputes that may arise at clause 25.5. The agreement only applies to part of a single business and employees covered by this agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote was taken on 25 February at which a majority voted in favour of the agreement.

PN5

The vote - the result of the ballot was that there was 42 participants - sorry, there was 42 eligible employees, 23 participated in the vote - 18 voted for and 5 against. In relation to the time-frame, Commissioner, I understand that this application may be out of time. It is my understanding that there has been no major change in the work force, except for one employee having left the company and he has not been replaced. The reason for the delay happens to be a mix-up in changes of postal addresses with our federal office. The agreement was sent off well and truly in time but ended up back in our office after time.

PN6

THE COMMISSIONER: Yes, and I think Mr Bell, the relevant dates are the - agreement was made 23 January according to the statutory declarations - 21 days from that would take us to 13 February. It was lodged on 5 March which means it is 21 days out of time so - I note there are 42 employees, according to the stat decs. Now, I understand your reasons. I accept those reasons - 42 employees in total. The ballot - have you got the result of the ballot?

PN7

MR BELL: Yes, I have just advised you of that. 23 participated in the ballot. They were all offered the opportunity to participate but we received 23 returns. Of that, 18 voted for and 5 against.

PN8

THE COMMISSIONER: Very low participation rate in the ballot.

PN9

MR BELL: It is the long distance industry, Commissioner, and these blokes live out of their trucks and they are not home often so - they have been given the opportunity and some of them, quite frankly, show a bit of apathy towards anything that goes on around the depot.

PN10

THE COMMISSIONER: Yes, and your understanding is that in that period of time, 13 February to 5 March, only one - one employee resigned, has not been replaced.

PN11

MR BELL: That is what I've been told.

PN12

THE COMMISSIONER: I mean, in that case that obviously would not have made any difference to the result so I'm inclined to grant that extension of time. I will hear from Mr Kuczmarski in a moment. Is there anything further?

PN13

MR BELL: Just that the agreement still provides for consultation with employees that for any changes during the life of the agreement at clause 7 in relation to section 170LT, there are four people under the age of 21 and five casual employees covered by this agreement. With the Commission's indulgence we seek this agreement be certified operative from today's date with an expiry date of 1 January 2005.

PN14

THE COMMISSIONER: Just looking at the statutory declarations on that last point, you said there's five casual employees, did you say?

PN15

MR BELL: Look, excuse - I apologise, Commissioner.

PN16

THE COMMISSIONER: Yes.

PN17

MR BELL: Obviously - - -

PN18

THE COMMISSIONER: The stat decs both say: one casual employee, no-one under the age of 21.

PN19

MR BELL: My apologies, Commissioner, whatever the statutory declarations say and I do have a copy of them here. I have not had a chance to peruse my notes this morning and I have got them wrong.

PN20

THE COMMISSIONER: And that is actually relevant because of something I want to raise in a moment which is not a big thing, but again, I will hear from Mr Kuczmarski first, I think.

PN21

MR BELL: Nothing further, Commissioner.

PN22

MR KUCZMARSKI: Thank you, Commissioner. We support the application by Mr Bell on behalf of the Transport Workers' Union. We also support the application for the extension of time. I can verify that only one employee has left during the period of the 21 days' notice. I am aware of the delay. It was due to an administrative error about mailing addresses so we support that application. I also confirm that there is only one casual employee involved in this - as per the statutory declaration prepared by myself and we seek to have this agreement certified.

PN23

THE COMMISSIONER: Yes, thanks. Can I just indicate then - just a couple of procedural things I would just like to clarify. In Mr Allen's statutory declaration, Mr Bell, 1.4 is answered - this is whether it applies to a part of the whole of a single business - it is answered - - -

PN24

MR BELL: Well, it is not answered, is it?

PN25

THE COMMISSIONER: Sorry:

PN26

Answer this question only if this agreement applies to part of a single business.

PN27

MR KUCZMARSKI: Excuse me sir, are you referring to 2.4?

PN28

THE COMMISSIONER: No, I am referring to 1.4 in Mr Allen - - -

PN29

MR KUCZMARSKI: I'm sorry.

PN30

THE COMMISSIONER: - - - where, in that - one takes from that - from Mr Allen's stat dec that the agreement operates in respect of part of a single business. Now, if I can compare that, Mr Kuczmarski, to 2.4 in your stat dec, and in 2.4 in your statutory declaration you indicate that the agreement applies to the whole of the business so there is technically a bit of a confusion here as to whether it is whole or part. Look, I think I understand where the parties are coming from. Probably they have got a different perspective in that it applies to part of A.A. Scott Proprietary Limited but the whole of Hahn's Haulage. I think that is probably - - -

PN31

MR KUCZMARSKI: If I can just address that, sir. The A.A. Scott Proprietary Limited has two training entities, one is called Hahn's Haulage and one is called McGlashen's Transport. It is different company than Scott's Transport Industries Proprietary Limited which covers the majority of our transport fleet. So in answer to their question I've said "hold" because it actually applies to the whole of Hahn's Transport.

PN32

THE COMMISSIONER: Whole of Hahn's Haulage but only a part of A.A. Scott.

PN33

MR KUCZMARSKI: Only a slight part.

PN34

THE COMMISSIONER: That is what I thought was the case and Mr Bell, that would be the case, wouldn't it, I think?

PN35

MR BELL: That is.

PN36

THE COMMISSIONER: It is just that I need to make that clear on the transcript because we have got - at the moment there are two stat decs that are slightly at odds with one another but I assume that that was a different perspective so as long as we have explained that, that is fine. In regard to 6.8 in Mr Kuczmarski's stat dec and 6.6 in Mr Allen's stat dec, that is about the:

PN37

Did the explanation of the terms of the agreement take place in ways that were appropriate having regard to the person's particular circumstances.

PN38

There is only person in a special circumstance and that is the one casual employee and the answer given in both instances is - and it is a bit awkward wording, but:

PN39

Provision were provided where it was appropriate to consider the individual's particular circumstances as, and if requested.

PN40

Now, there is only one employee concerned here and it is one casual employee. I just want to point out to the parties that - for the future record, that under section 170LT(7), there's a mandatory provision there where it says:

PN41

The explanation of the terms of the agreement must take place in ways that were appropriate having regard to the person's particular circumstances and needs.

PN42

So it is not a case of saying: well, look there is one casual employee here, that one casual employee didn't make a beep. We didn't hear anything from him, so therefore we didn't give him or her any special explanation. The fact is, under LT(7) you must. You know what I mean? So the answer that you have given in your stat decs that: well, provision was made to consider the individual's particular circumstances, if they requested it. Well, it is not "if they requested it", you have got to do it, but here we are talking about one casual employee and I would assume that, you know, you are probably lucky to have the casual employee voting anyway from the sound of it - I mean. Do you get my point, gentlemen? It is a mandatory requirement that is all.

PN43

MR KUCZMARSKI: May I address the Commission, please?

PN44

THE COMMISSIONER: Yes.

PN45

MR KUCZMARSKI: Just to say that, as part of my submission, I was also going to say that I would like to give a vote of thanks to Mr Dennis Gracie who was the employee representative on the negotiating committee who actually has done a commendable job in getting this agreement to where it is today. He would have actually spoken to that person.

PN46

THE COMMISSIONER: So he actually went around to speak to everyone, in the main?

PN47

MR KUCZMARSKI: Yes.

PN48

THE COMMISSIONER: I accept that as fine. I just wanted to make that point, really more for future agreements, Mr Kuczmarski, in answering those stat dec things there that it is a requirement. Now, the one other matter is in the agreement itself at clause 8.9.2. There is reference to:

PN49

This policy shall -

PN50

Drug and Alcohol policy -

PN51

This policy shall form part of this agreement as attachment B...

PN52

And I don't have it as attachment B on the file.

PN53

MR KUCZMARSKI: That is my fault sir. I mean, all employees are aware of that drug and alcohol policy. It is pinned up on the notice board so they are made aware of any changes to that.

PN54

THE COMMISSIONER: Yes. All I would suggest, Mr Kuczmarski, is could you provide a copy of attachment B for our records so it is on the formal file. I have a particular interest in drug and alcohol policies, a result of various matters that have come before me in recent times I would be most interested to have a look of that, and I - sort of a bit of a personal interest in any event. I need it for the record so that we have got a complete file here. So subject to you providing that I can indicate then as follows: that the Commission has before it an application under division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ.

PN55

The Commission has considered the application and the terms of the agreement is subject to the application. I note that the application is supported by statutory declarations that are on file from Ronald John Kuczmarski, Group Human Resources Manager, A.A. Scott Proprietary Limited, the employer in this matter and John Allen, Federal Secretary of the Transport Workers' Union of Australia. With some clarification from the parties this morning on the record, these declarations are in order and are in fact consistent with one another, despite the one or two technical matters that I have noted in those stat decs.

PN56

Having heard from the parties today in relation to an application to have the agreements certified under division 2 of Part VIB of the Act, I note firstly that the agreement has been lodged some 21 days out of time, having heard from the parties this morning as to the reasons for the delay in lodging the Agreement and also taking into account the result of the ballot. Only 23 of the 42 employees saw fit to participate in the ballot even though they were all given an opportunity to do so and the ballot result was 18 in favour, 5 against and having regard to the fact that in the 21 days between 13 February and 5 March, which was the period of time during which this agreement was out of time, during that period only one employee has actually resigned.

PN57

That employee has not been replaced. In other words, there has not been a significant change in the composition of the work force. Having regard to all of these matters I am prepared to exercise my discretion pursuant to section 111(1)(r) of the Act and grant the necessary extension of time to allow this application to proceed. I note in considering this agreement that the Transport Workers' Award (1998) and the Transport Workers' Long Distance Drivers' Award are the relevant awards for the purpose of the no disadvantage test and having compared the provisions of the agreement with those of the awards and I am satisfied that the agreement passes the no disadvantage test as required by section 170LT(2).

PN58

I note that the agreement at clause 25 includes procedures for preventing and settling disputes between the parties as required by section 170LT(8), the Commission is satisfied as also required by section 170LT that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate, having regard to the particular circumstances and needs of the relevant employees.

PN59

Accordingly, the Commission is pleased to certify the Hahn's Haulage Enterprise Agreement (2004) to be operative from today's date, 25 March 2004, and in accordance with clause 5 of the agreement, to remain in force until 31 July 2005, being a date that in accordance with section 170LT(10) is not more than 3 years after the date in which the agreement will come into operation. The necessary documentation covering certification will be forwarded to the parties in due course and I congratulate the parties on their agreement. I indicate that formal documentation will only come out to the parties once we have received that copy of schedule B for the record, to complete our files, and unless there is anything further from the parties then that disposes of the hearing of that matter.

ADJOURNED ACCORDINGLY [10.01am]