AG2004/1189, Transcript of Proceedings [2004] AIRCTrans 1538 (21 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 427

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/1189

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Recycling Company of WA Pty Ltd for
certification of the Recycling Company
of WA Pty Ltd Certified Agreement 2004

PERTH

3.57 PM, TUESDAY, 13 APRIL 2004

PN1

MR J. UPHILL: I appear with MR S. DRAKE-BROCKMAN on behalf of the applicant company, the Recycling Company of WA Pty Ltd.

PN2

THE DEPUTY PRESIDENT: Mr Uphill, please commence.

PN3

MR D. VICENCIO: I appear on behalf of the workers of the company.

PN4

THE DEPUTY PRESIDENT: Mr Uphill?

PN5

MR UPHILL: Your Honour, this is an application which seeks the registration of an agreement pursuant to section 170LK of the legislation. There are a number of issues I need to address in order to demonstrate that the agreement passes the no disadvantage test. Firstly, we say that the agreement is one that is with a constitutional corporation and that should be clear from the documentation that has been filed in the Commission. The agreement relates to, I think, approximately 52 people who are employees of the company at various locations. I can indicate to you that the agreement has been approved by a valid majority of employees. In fact, I understand that 44 of the 52 employees voted in favour of the agreement.

PN6

So, clearly, an overwhelming majority of employees have endorsed the agreement. Prior to a ballot being conducted, there was notification to employees of the company's intention to make an agreement. And that intention was expressed in a letter dated 12 February. And following that notification, which accompanied a copy of the agreement, of the proposed agreement, there were numerous meetings, as I understand it, to explain the terms of the agreement. And as part of that process, employees had the opportunity to have access to interpreters if they needed to have any particular aspects of the agreement explained in detail to them.

PN7

It should be clear as a result of various meetings that took place, the company has indicated it is prepared to amend certain of the terms of the proposed agreement and I will come to that in a moment. But I would submit that the content of the agreement does comply with the terms of the legislation. The agreement contains a disputes settling clause which is clause 178 of the agreement. Also, it is worthwhile noting that the agreement has a nominal expiry date and that is contained in clause 2 of the agreement, where in 2.1 it indicates that the agreement will be for 3 years from the date that it is registered by the Commission. Those aspects of the content of the agreement comply with the terms of the legislation.

PN8

The other aspect that is crucial is the no disadvantage test. And it is our submission that when you consider the undertakings that the company is prepared to give, the agreement, in our view, does meet the no disadvantage test. And the company has signed and handed to your Associate the written undertakings that it is prepared to give. And we believe that they are substantial changes to the document, which do add to the value of the agreement. We, therefore, submit, your Honour, that the agreement complies with the legislative requirements and we would seek to have the agreement operate according to its terms.

PN9

THE DEPUTY PRESIDENT: Thank you, Mr Uphill. I would like to thank the applicant for its thorough responses to all queries raised. In relation to clause 4.5 of the agreement, which makes a reference to various policies, procedures, etcetera, I wonder if you are able to confirm that the employees will be informed and given access to copies of those documents.

PN10

MR UPHILL: Your Honour, I can confirm that employees do have access to copies of policies, procedures and directions that are referred to in 4.5. I am instructed that there are regular tool box meetings and that the policies and procedures are available at each of the particular sites where employees work. So, clearly, we would submit that employees are aware of or have access to the required information.

PN11

THE DEPUTY PRESIDENT: Thank you for that. And can I take it from your submission that the agreement passes the no disadvantage test as of today's date?

PN12

MR UPHILL: Yes, that is our submission, your Honour.

PN13

THE DEPUTY PRESIDENT: Thank you. I have no further queries. I wondered if Mr Drake-Brockman may wish to submit his support for the certification of the agreement.

PN14

MR DRAKE-BROCKMAN: Yes, your Honour, I do. One of the things we require, I think there is a general need to up skill in the workforce. And I think one of the things we are finding is that all our systems and procedures need to be upgraded themselves, which we are doing. We have got - recently appointed a Human Relations Manager for the workforce. And so what we are doing is we are really just, I suppose, getting our act together in terms of all the procedures one needs to do in terms of, you know, workplace safety, which is a big issue these days. So, the machinery we are using is not complicated in itself but there is some sort of safety first things you should be aware of.

PN15

And so what we are doing is trying to have this sort of - because we have got three different sites, three locations, there is quite a difference in terms of how things are done at each site. So, we are trying to get a uniform, sort of, company policy and approach to everything. And so this enables us to do that. And it, sort of, reinforces all the other systems we are putting in place in terms of production systems, procedures. So, it is really dovetailing everything together and making it much more coherent and sensible and logical. So, yeah, that is why I am really for it myself. Is that we need to move down that path.

PN16

THE DEPUTY PRESIDENT: Thank you for that. That does assist.

PN17

MR DRAKE-BROCKMAN: Yes.

PN18

THE DEPUTY PRESIDENT: And I would like to ask Mr Vicencio if you would wish to express your position in support of the certification of the agreement by the Commission on behalf of the employees.

PN19

MR VICENCIO: Yes. Yes, your Honour. The general consensus throughout the workplace is that we are all supportive of the agreement and, yeah, we are glad to see it come through. And hope it will go ahead.

PN20

THE DEPUTY PRESIDENT: Thank you for that. I turn now to the application which is pursuant to Part VIB, Division 2, section 170LK of the Workplace Relations Act 1996 to certify an agreement to be known as the Recycling Company of WA Pty Ltd Certified Agreement 2004. Having heard Mr J. Uphill and Mr S. Drake-Brockman on behalf of Recycling Company of WA Pty Ltd, Recycling Company, and Mr D. Vicencio on behalf of the employees, and having read the statutory declaration of Mr D. Atkin on behalf of Recycling Company, I am satisfied that the agreement filed relates to a constitutional corporation, namely, Recycling Company of WA Pty Ltd, ACN 069339751.

PN21

The agreement was made in accordance with section 170LK. A valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved it. The explanation of its terms was appropriate. It includes procedures for preventing and settling disputes between the employer and employees whose employment would be subject to the agreement. It specifies a nominal expiry date of not more than 3 years after the date on which the agreement would come into operation. And on 9 March 2004 Mr Atkin, in his statutory declaration, indicated the employer's preparedness to give undertakings in relation to the agreement, to ensure that it satisfies the no disadvantage test.

PN22

In the light of the above, I prepared an undertaking and the applicant employer and the employee present have signed that undertaking. Taking all considerations into account, I am satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Thus, it will be certified with effect from 13 April 2004, to operate in accordance with its terms from that date. And the formal certificate, together with the undertaking, will issue in due course. These proceedings are adjourned.

ADJOURNED INDEFINITELY [4.09pm]