AG2004/2080, Transcript of Proceedings [2004] AIRCTrans 1556 (26 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N 439

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/2080

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia
and Another for certification of the
Toll Ipec Pty Ltd (Perth) Enterprise
Bargaining Agreement 2003

PERTH

12.18 PM, THURSDAY, 15 APRIL 2004

PN1

MR N. HODGSON: I appear on behalf of the Transport Workers' Union of Australia.

PN2

THE DEPUTY PRESIDENT: Thank you Mr Hodgson.

PN3

MR R. WALTERS: I appear with MR JOHN COLLINS for Toll Ipec Pty Ltd.

PN4

THE DEPUTY PRESIDENT: Thank you Mr Walters and Mr Collins. Mr Hodgson if you wish to commence?

PN5

MR HODGSON: Thank you your Honour. This is an application made pursuant to Part VIB, Division 2, section 170LJ of the Workplace Relations Act 1996. What we are seeking to do, your Honour, is to certify an agreement known as the Toll Ipec Pty Ltd (Perth) Enterprise Bargaining Agreement 2003. The parties to the agreement are the Transport Workers' Union of Australia and Toll Ipec Pty Ltd. There is one preliminary matter, your Honour and that is that I believe the application was filed out of time, so therefore the parties seek that the Commission use its discretion pursuant to section 111(1)(r), which enables the Commission to extend any prescribed time. The reason for the application being later than the required time, was that documents had to be signed here in Western Australia and in Victoria and that led to it not being able to be filed in time. We believe that you can exercise your discretion, with respect your Honour, because there has been no change in the composition of the work force covered by the agreement since the vote was taken and when the agreement was lodged.

PN6

The parties have provided statutory declarations that have been filed with the Commission in respect to the application and amongst other things it indicates that the agreement relates to a constitutional corporation, called Toll Ipec Pty Ltd and the union has at least one member employed in the business and the union is entitled to represent the interests of that member. We say that the agreement passes the no disadvantage test as of today's date and we are satisfied that the requirements - the other requirements of the Act have been satisfied and unless there are any questions your Honour, we would seek that the agreement be certified. If it please the Commission.

PN7

THE DEPUTY PRESIDENT: Thank you Mr Hodgson. I would seek first the submission of Mr Walters, in relation to the request to extend time.

PN8

MR WALTERS: Yes, your Honour, we would similarly request that the Commission use its discretion under section 111(r) and use that discretion so that the time can be extended.

PN9

THE DEPUTY PRESIDENT: Thank you. 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.

PN10

MR HODGSON: Thank you.

PN11

THE DEPUTY PRESIDENT: I now turn to some questions to the parties and would ask first for the employer party in relation to question 3.4 of the statutory declaration and ask Mr Walters to confirm the correct ACN number on the transcript.

PN12

MR WALTERS: Yes sir, your Honour, the correct ACN number is 084167666.

PN13

THE DEPUTY PRESIDENT: Did you say 167?

PN14

MR WALTERS: 167666. Correction your Honour, it is 084157666.

PN15

THE DEPUTY PRESIDENT: Thank you for that clarification. I turn to question 7.7 of the statutory declarations and ask the parties, Mr Hodgson first, to confirm that the nominal expiry date of the agreement is 1 February 2005, as specified in clause 4?

PN16

MR HODGSON: Yes, that is - sorry your Honour, yes that is correct your Honour.

PN17

THE DEPUTY PRESIDENT: Thank you Mr Hodgson. Mr Walters?

PN18

MR WALTERS: Yes your Honour, I can confirm that the correct date is February 2005.

PN19

THE DEPUTY PRESIDENT: Did you say February 2005, or did you say 1 February 2005?

PN20

MR WALTERS: The 1 February 2005.

PN21

THE DEPUTY PRESIDENT: Thank you. I turn to consideration of clause 4 in the agreement and seek both parties to confirm that all those - the agreement says that it comes into operation from 1 February 2003, that the certified agreement does not come into operation until it is certified by the Commission, Mr Hodgson?

PN22

MR HODGSON: That is correct your Honour, we say that the agreement comes into force when it is certified by the agreement and operates in accordance with the terms of the agreement. If it please the Commission.

PN23

THE DEPUTY PRESIDENT: Yes, thank you. Mr Walters?

PN24

MR WALTERS: Your Honour, we agree with Mr Hodgson.

PN25

THE DEPUTY PRESIDENT: Thank you. I turn to an important clause number 16 in the agreement and I refer to the matter raised in correspondence from the Commission to the parties in line 3, in relation to the word "commonality". I note that the response of the TWU in its letter of 1 April 2004 referred to by way of explanation of the word "similar", by way of explanation of "commonality". I note that the letter of the employer of 24 March 2004, refers to common clauses, by way of explanation of commonality. It occurs to the Commission that there are therefore two differing interpretations that have been provided and in order to attain the maximum amount of clarity and so as to prevent any future misunderstanding, it occurred to me that it may be prudent and helpful to the parties to seek - to use this opportunity by way of clarifying those two alternative interpretations, to a common position, if possible. I would invite first any view from Mr Hodgson.

PN26

MR HODGSON: Thank you your Honour. I think it is important to clarify that situation you've just described, so we would have no problem agreeing with the company's definition of what commonality means and either on the record, or by initialling the document, insert where common clauses occur to replace where commonality occurs, if the Commission thinks that would be appropriate.

PN27

THE DEPUTY PRESIDENT: Thank you. I will seek the view of Mr Walters on that.

PN28

MR WALTERS: Your Honour, as I think we cited in Mr Muller's letter of 24 March, that clause 16 - if common clauses are contained within the EBA and Toll heads of agreement then Toll heads of agreement wording of the clause takes precedent. So we see that as the position and it is - from the sound of Mr Hodgson he doesn't disagree with that position.

PN29

THE DEPUTY PRESIDENT: Thank you. I would ask both parties if they are satisfied that agreement on the words "common clauses", gives them the clarity and the precision that they need for the future in relation to the interpretation of that particular clause number 16, in the event of disputation arising. I understand that that is the case, but I will just simply seek for complete clarity confirmation of both parties that that would be the interpretation that would be given to the word "commonality" in clause 16, in the event of any future difference, rather than what was submitted in writing by the TWU to the Commission. Mr Hodgson?

PN30

MR HODGSON: Yes, that is correct your Honour, we are happy to insert those - that phrase if the - and I believe the employer is suggesting that in their letter of 24th, so we are prepared to accept the suggested amendment in the Toll Ipec letter of 24 March.

PN31

THE DEPUTY PRESIDENT: Thank you. Are you submitting that you believe it should be an amendment to the clause, or simply that the transcript reference is sufficient?

PN32

MR HODGSON: I think the transcript reference would be sufficient your Honour.

PN33

THE DEPUTY PRESIDENT: Thank you. Mr Walters?

PN34

MR WALTERS: Yes your Honour, we believe the transcript record would be sufficient also.

PN35

THE DEPUTY PRESIDENT: Thank you. That completes the queries of the Commission and I would simply invite any submission by Mr Walters in support of certification of the agreement in addition to those that you have already made.

PN36

MR WALTERS: Yes, your Honour, I think that I just refer you to the stat dec before you, sworn by Tony Consedine and subsequent correspondence from your office, dated 18 March, the Toll response dated 24 March from Kent Muller. Your document in reply dated 29 March, Kent Muller's reply to you dated 1 April and we believe that with these documents we now believe that the requirements of the Act have been met and ask that the agreement be certified your Honour.

PN37

THE DEPUTY PRESIDENT: Thank you for that. I turn now to the certification of the agreement, noting the application is pursuant to section 170LJ of the Act for an agreement to be known as the Toll Ipec Pty Ltd (Perth) Enterprise Bargaining Agreement 2003. Having heard Mr N. Hodgson, on behalf of the Transport Workers' Union, the TWU and Mr R. Walters, together with Mr J. Collins, on behalf of Toll Ipec Pty Ltd, Toll, and having read the statutory declarations filed by Mr J. Allen, on behalf of the TWU and Mr T. Consedine on behalf of Toll, I am satisfied that the agreement filed relates to a constitutional corporation, Toll Ipec Pty Ltd, ACN 084157666. 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 it.

PN38

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, as qualified by the discussion recorded on transcript today. The agreement includes procedures for preventing and settling disputes between the employer and the employees, whose employment would be subject to the agreement and it specifies a nominal expiry date of not more than 3 years after the date on which the agreement would come into operation.

PN39

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 15 April 2004, to operate in accordance with its terms from that date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [12.34pm]