AG2004/2298, Transcript of Proceedings [2004] AIRCTrans 1424 (14 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6626

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

AG2004/2298

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and
Allied Services Union of Australia -
Electrical Division Southern States Divisional
Branch and Others for certification of the
ETU/AMWU Thyssenkrupp Elevator Construction
and Service Employees 2003 Certified Agreement

MELBOURNE

12.16 PM, THURSDAY, 1 APRIL 2004

PN1

MR S. McKAY: I appear for the CEPU Electrical Division.

PN2

MS K. WILD: I appear for the Australian Manufacturing Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr McKay.

PN4

MR McKAY: Yes, your Honour, this is an application under Division 2 of the Workplace Relations Act for certification of an enterprise agreement between an organisation of employees and the employer. We would submit to the Commission, your Honour, that the Metal, Engineering and Associated Industries Award of 1998 be the award to produce evidence to the Commission that we beat the no disadvantage test. We would rely on the statutory declarations given to the Commission for certification of this agreement, if the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr McKay, is the company respondent to that award?

PN6

MR McKAY: We believe they are, your Honour, yes.

PN7

THE SENIOR DEPUTY PRESIDENT: Ms Wild.

PN8

MS WILD: Thank you, your Honour. We would support certification of the agreement, and I have a signed copy of the agreement to hand up to you. In respect of the statutory declaration, I have a bit of a problem, I don't have one to hand up to you at the moment but I could undertake to get one to you.

PN9

THE SENIOR DEPUTY PRESIDENT: You support the certification?

PN10

MS WILD: Yes, and we do support the certification, thank you, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: In respect of this agreement, Mr McKay, who has the larger number of members, CEPU or the AMWU? Who is the biggest? What is the - where do the employees fall?

PN12

MR McKAY: I couldn't really tell you that off the top of my head, your Honour. I would have thought that it possibly would have been the AMWU.

PN13

THE SENIOR DEPUTY PRESIDENT: Okay. I require one of the unions, you can work out which one yourselves. There is a difficulty with clause 1.11 in that there is a lack of clarity about whether the clause also applies to non-members of the AMWU. Clause 1.16 about whether that clause also applies to non-union members. And clause 1.17 about whether such deductions will only be made with the authority of the relevant employee. If the employer was here we could overcome some of those with an undertaking, but they are not, and the undertaking I would require to be given is a matter on which the employer may not wish to give an undertaking because it may have cost implications for them.

PN14

What I propose to do is this, have either of you unions, and you can work out which one, send a letter by registered mail to the employer indicating the Commission required the following undertakings, and I will give you the words for them, in respect of the agreement and that, if they object to giving those undertakings, they should notify my chambers within seven days of the date the letter is sent by registered mail. And then you should forward to my chambers a copy of the letter and a copy of the registered mail posting receipt.

PN15

That will enable me to assume that if I don't receive any correspondence from the employer within the seven days that they have no objection to being bound by those undertakings. And the undertakings would be twofold; the first undertaking is that the company undertakes that the provisions of clauses 1.11 and 1.16 will also be available to employees of Thyssenkrupp Elevator Australia Pty Ltd who are not members of the AMWU or the CEPU, and an undertaking that the deductions in clause 1.17 will only apply with the authority of the relevant employee. You are clear on those?

PN16

MS WILD: Yes, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Subject to receiving or not receiving - receiving your evidence of letter and registered mail posting receipt, and not hearing from the employer, I will assume he undertakes me giving and certify the agreement from the appropriate date. I will then be satisfied that certifying the agreement was consistent with the requirements of the Act and the regulations and such certification would come into force from today's - from the date which is seven days after the letter goes out and shall remain in force until 28 February 2006. Are you clear on what needs to be done? Thank you.

ADJOURNED INDEFINITELY [12.31pm]