AG2004/2498, Transcript of Proceedings [2004] AIRCTrans 1707 (5 May 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6867

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2004/2498

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Berkeley Challenge Pty Ltd and Another for
certification of the Berkeley Challenge Pty
Limited (Shell Oil Refinery - Geelong) Enterprise
Agreement 2004 - 2007

MELBOURNE

10.05 AM, MONDAY, 26 APRIL 2004

PN1

MR M. CUSACK: I seek leave to appear on behalf of Berkeley Challenge Proprietary Limited.

PN2

MS V. ILIAS: I appear on behalf of the LHMU.

PN3

THE COMMISSIONER: Thank you, Ms Ilias, I take it there is no objection to the leave being granted - - -

PN4

MS ILIAS: No, Commissioner.

PN5

THE COMMISSIONER: - - - and it is granted. Yes, Mr Cusack?

PN6

MR CUSACK: If the Commission pleases, this is an application pursuant to section 170LJ for certification of an agreement between Berkeley Challenge on the one hand, and the LHMU on the other. It seeks to provide terms and conditions of employment for persons employed by Berkeley Challenge performing cleaning duties at the Shell Oil Refinery. Commissioner, statutory declarations have been filed by Mr George Hallal on behalf of the company, and Mr Daley on behalf of the union.

PN7

From the company's perspective we seek to rely on those statutory declarations, state that the agreement satisfies the statutory requirements for certification. It passes the no disadvantage test. It was an agreement reached by a valid majority of persons employed at the time whose terms and conditions will be subject to the agreements. Their agreement was genuine. Arrangements were made as is indicated in the statutory declarations for an explanation of those terms and conditions of the agreement. The explanations were, we submit, satisfactory in the context of the persons who are to be employed - who are employed and are to be covered by the agreement.

PN8

The agreement includes provision for the preventing and settling of disputes between the parties and it contains a nominal expiry date which is not more than three years after the proposed date of making which, we would submit, should be on or after today, on the assumption that the Commission will be satisfied that the statutory requirements are met. We submit, sir, that there are no reasons pursuant to the Act why the Commission should refuse to certify the agreement, and accordingly we submit that it be certified with effect from today's date. If the Commission pleases.

PN9

THE COMMISSIONER: Thank you. Ms Ilias?

PN10

MS ILIAS: Yes, Commissioner, we would support the submissions that have been made this morning in relation to the certification of this enterprise agreement, to also say that the statutory declaration has been filed in support of the certification by Brian Daley, the secretary of the LHMU, and we would also seek certification from today's date, if it pleases the Commission.

PN11

THE COMMISSIONER: I thought, when I read agreement, that as far as the no disadvantage test was concerned, the only issue that could possibly arise was the comparison of the rates of pay. There didn't seem to be any terms and conditions of employment which varied from - or substantively varied from the terms of the award. Is that right?

PN12

MR CUSACK: That is correct, sir. It is substantially an agreement that incorporates the terms and conditions of the award, and is modified largely in the context of rates of pay and the allowance, and the manner in which those are calculated, sir.

PN13

THE COMMISSIONER: Right, the sick leave, it is just about under certification, isn't it?

PN14

MR CUSACK: The sick leave one goes more to the procedural requirements rather than the entitlement, sir.

PN15

THE COMMISSIONER: Yes, it is not about the level of entitlement, yes. That is right, that is what I thought. So - and when I looked at the wage rates it seemed to me that there was a significant margin between the award and the agreement rates, either with or without the site allowance.

PN16

MR CUSACK: That is correct, sir.

PN17

THE COMMISSIONER: In fact, if one took the grade one rate, my understanding is the difference is between 487.40 and 544.66. Would that be correct, Mr Cusack? Do you know that?

PN18

MR CUSACK: My calculation of the rate, sir, is slightly different but it is in the order of - - -

PN19

THE COMMISSIONER: All right, what is your calculation?

PN20

MR CUSACK: We have got a series of rates, sir, depending on the circumstances; but between 542 and 498 dollars, sir, depending on whether one looks at a Monday to Friday day rate, or a Monday to Friday shift penalty rate.

PN21

THE COMMISSIONER: But there is a shift - there is a shift work rate in the agreement?

PN22

MR CUSACK: Yes, sir.

PN23

THE COMMISSIONER: I see, but if you looked at the most basic which is the Monday to Friday rate in the schedules, what would you say the award rate was?

PN24

MR CUSACK: Just if I could beg the Commission's indulgence for a moment, sir.

PN25

THE COMMISSIONER: The award I was provided with shows a rate of 487.40.

PN26

MR CUSACK: That is correct, sir.

PN27

THE COMMISSIONER: Yes, whereas that rate - the equivalent rate in the agreement is 544.66, is it not?

PN28

MR CUSACK: That is correct, sir.

PN29

THE COMMISSIONER: Yes. And there is a shift work rate prescribed under the agreement. And in fact I just did some checking, for instance, on the Saturday time and a half rate under the award would be 19.24, whereas under the agreement it is 27.77. All right.

PN30

MR CUSACK: That is correct, sir.

PN31

THE COMMISSIONER: Yes, good, thank you. Yes, well I am satisfied this agreement has been made in accordance with the requirements of the legislation. I am also satisfied that the conditions necessary for the certification of the agreement have been met and I will therefore issue an order of certification operative from today's date, which will remain in force for the life of the agreement. I will publish this decision and the order in due course. Thank you.

ADJOURNED INDEFINITELY [10.13am]