AG2004/2609, Transcript of Proceedings [2004] AIRCTrans 2162 (9 June 2004)

AUSCRIPT PTY LTD
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ADMINISTRATOR APPOINTED

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TRANSCRIPT OF PROCEEDINGS

O/N 570

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/2609

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by aiM maintenance Limited
and Another for Certification of the
aiM maintenance Ltd Pilbara Regional
Agreement 2004

PERTH

2.36 PM, MONDAY, 31 MAY 2004

PN1

MS S. MADDERN: I appear on behalf of the applicant, aiM maintenance Limited, and appearing with me this afternoon is Mr N. Donkin. Perhaps I could add, also appearing in the Newman Shire Council's office - sorry, East Pilbara Shire's Council's office is Mr M. Wearne, who was one of the employees who submitted a statutory declaration in respect to this application and he is available here to answer any questions that the Commission might have of him.

PN2

THE DEPUTY PRESIDENT: Thank you, Ms Maddern. Where was the location? Could you confirm that for me?

PN3

MS MADDERN: I understand it is the Shire of East Pilbara in Newman.

PN4

THE DEPUTY PRESIDENT: In Newman?

PN5

MS MADDERN: Their Council offices, yes, yes.

PN6

THE DEPUTY PRESIDENT: Thank you. Good afternoon to you, Mr Wearne, in Newman.

PN7

MR M. WEARNE: Good afternoon.

PN8

THE DEPUTY PRESIDENT: Ms Maddern, please commence.

PN9

MS MADDERN: Thank you, Mr Deputy President. This is an application for certification of a section 170LK agreement made between the company and its employees. I would like to just briefly go through the general technical and procedural requirements. We submit that these have all been satisfied in respect to the agreement and in particular I rely on the supplementary statutory declaration that was provided to the Commission. Just briefly, the notice of intention was provided to the employees. They were given a clear 14 days notice in writing. The employees were given access to the proposed agreement at the time that that notice was given. A copy of the agreement was provided to all employees after some minor amendments had been made.

PN10

So, as was explained in the statutory declaration, during the consultation process employees were provided with what was then a draft agreement. There were a few minor amendments made. The agreement was finalised. That final version of the agreement was provided to all employees at which time the formal notice required by section 170LK(4) was also provided to the employees. In terms of an explanation of the agreement, that is set out in the supplementary statutory declaration and I would submit that the applicant has fulfilled all its requirements in that regard.

PN11

The agreement is a Division 2 agreement and the application states that as such, as does the supplementary statutory declaration. The agreement was lodged within 21 days, in fact it was lodged with the Commission on 22 April, some 19 days after the agreement was made and the agreement was actually made on 3 April, which was an initial error in the original statutory declaration which we corrected in the supplementary statutory declaration. I will come back in a moment, Mr Deputy President, to the no disadvantage test requirement but just briefly, to finalise in respect to the other technical requirements, the agreement was made with a valid majority genuinely supporting the agreement.

PN12

At the time the agreement was made 14 employees were to be covered by the agreement. Ten voted 'yes' and four voted 'no' but at the time that the statutory declaration was actually made there were only 13 employees who were covered by the agreement, hence that slight discrepancy. The requirement under section 170LK(7) to give an explanation of terms of the agreement, taking into account employees particular requirements, there wasn't any real need to take any additional measures as there weren't any employees from a non-English speaking background or of a minor age, for example.

PN13

There is a dispute settlement procedure included in clause 17 of the agreement and the nominal expiry date is three years from the date that the agreement comes into operation. And the last requirement, in terms of section 170LU, is that the agreement relate to a part of a single business and, Mr Deputy President, having previously certified a couple of agreements applicable to the company you would understand that the company has organised its operations on a regional basis. And so this particular agreement relates to the fabrication, refurbishment, maintenance, plant modification, etcetera, of the company's workshop that is in Newman and work that is undertaken within the region at various client work sites.

PN14

So we would say that the Commission can be satisfied that all of the technical procedural requirements of the Act have been complied with. The second issue I would like to cover now is the no disadvantage test which I submit on behalf of the company today that the agreement does pass the no disadvantage test and I would refer the Commission to the supplementary statutory declaration, in particular attachment (a), which is an Excel spreadsheet that compares the rates of pay that an employee will receive under the agreement versus what they would receive under the relevant award, which is the Metal Trades General Award which is a state award.

PN15

I would, however, take this opportunity to mention that, as the Commission is aware, since the agreement was made there was a national wage case decision awarding a $19 per week increase. Strictly speaking, the relevant award rates will not be increased by that amount until 4 June. You may be aware, sir, that the State Commission issued a decision and it will give effect to the national wage case decision by way of a general order and that wage increase will actually come into effect in four days time, on 4 June. Now, strictly speaking, the agreement wouldn't need to satisfy the no disadvantage test taking into account that increase.

PN16

However, I did ask Mr Donkin to do some calculations and even taking into account that additional wage increase, the rates under the proposed agreement would still pass the no disadvantage test. And I am in a position to hand up, via your associate, an amended spreadsheet which is in the same format as the original attachment (a) that you have received but taking into account the $19 per week, which will come into effect from this Friday and I have highlighted, using a pink highlighter, the comparisons between the award rates and the agreement rates. So, in respect of proceedings today, the Commission need only be satisfied that the agreement pass the no disadvantage test as at today's date and we submit that it clearly does so.

PN17

Finally, in respect to I guess the unusual aspect of the application today in that for the reasons that were explained in my written submission provided to the Commission by way of letter dated 17 May, we are seeking a retrospective date of operation for this agreement, namely 2 May. Mr Donkin, whilst here as a - representing the applicant, aiM maintenance, is now currently employed by Simon Engineering Australia Pty Ltd and is able to, if need be, attest to the fact that that company is fully supportive of a retrospective date of operation of the agreement and fully understands the implications of a decision, if made by the Commission, to grant a retrospective date of operation that it would then bind Simon Engineering Australia Pty Ltd from that date, given that there was a transmission of business on 3 May.

PN18

I do have a letter that I do wish to tender, Mr Deputy President. One original letter and a copy, if that is required, and this letter, Mr Deputy President, is from Andrew Ellison who is the Director and General Manager of aiM maintenance Limited, the applicant, who is also supportive of a retrospective date of operation, being 2 May, and confirms that if such a date is given that employees will be paid their entitlements under that agreement from 2 May 2004. I'm happy, Mr Deputy President, to address that issue or, indeed, any of the other issues that I've covered briefly this afternoon, if need be, if there are any further queries but otherwise, as mentioned, I would seek on behalf of the applicant that the agreement be certified with an effective date of operation of 2 May 2004. Thank you.

PN19

THE DEPUTY PRESIDENT: Thank you, Ms Maddern.

EXHIBIT #1 NDT COMPARISON OF aiM 170LK VERSUS AWARD ALLOWING $19 PER WEEK, AWARD INCREASE PENDING

EXHIBIT #2 LETTER TO DEPUTY PRESIDENT BLAIN DATED 27/5/2004 FROM MR ANDREW ELLISON

PN20

MS MADDERN: Thank you.

PN21

THE DEPUTY PRESIDENT: I have only one minor query which relates to the statutory declaration 6.1 in terms of the correct title of the award and I wonder if you can confirm for me that that is the Metal Trades General Award 1966?

PN22

MS MADDERN: Yes, Mr Deputy President, that is the correct award. Commonly, when referred to in a document, the year with most state awards is omitted, unlike federal awards, and we further identified the relevant award, being Part I, because there are in fact two parts to this award and Part II generally relates to construction sites and construction work. So, it is the Metal Trades General Award 1966, but Part I of that award.

PN23

THE DEPUTY PRESIDENT: Thank you for that.

PN24

MS MADDERN: Thank you.

PN25

THE DEPUTY PRESIDENT: Given the very comprehensive written submissions together with the clear and comprehensive verbal submissions that you have provided, I have no further queries. I would simply ask if Mr Wearne, representing the employees and speaking from Newman, would wish to express support for certification of the agreement and make any comment to that effect?

PN26

MR WEARNE: No, we have a positive 'yes' to that.

PN27

THE DEPUTY PRESIDENT: Thank you, Mr Wearne. Did you wish to add any further comments by way of explanation?

PN28

MR WEARNE: Any questions that we asked management were answered in an unbiased manner and we were encouraged to speak amongst ourself, as a group, upon the agreement and that is all I've got to say on it. Thank you.

PN29

THE DEPUTY PRESIDENT: Thank you for that, Mr Wearne, that is helpful to the Commission.

PN30

MR WEARNE: Thank you.

PN31

THE DEPUTY PRESIDENT: I now turn to the agreement itself noting that there is an application before the Commission pursuant to Part VIB, Division 2, section 170LK of the Workplace Relations Act 1996 to certify an agreement to be known as the aiM maintenance Ltd Pilbara Regional Agreement 2004. Having heard Ms S. Maddern on behalf of aiM maintenance Ltd, aiM, and Mr Wearne on behalf of the employees and having read the statutory declarations of Mr D. Hill on behalf of aiM and Mr R. Pengilly, Mr T. Hogan and Mr M. Wearne on behalf of the employees I am satisfied that the agreement passes the no disadvantage test.

PN32

It 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 the terms of the agreement was appropriate. It included procedures for preventing and settling disputes between the employer and the employees whose employment would be subject it and it specifies a nominal expiry date not more than three years after the date on which it would come into operation. The agreement filed in the Commission on 22 April 2004 related to a constitutional corporation, namely aiM maintenance Ltd, ACN086972401.

PN33

I note that on 3 May 2004 Simon Engineering Australia Pty Ltd purchased the business of aiM maintenance and has the right to use that trading name. Further, Simon Engineering Australia Pty Ltd, to be known as Simons, has offered employment to aiM employees on terms and conditions which are no less favourable than those at aiM. In the light of the above the applicant provided comprehensive written and oral submissions that I can certify the agreement with a retrospective operation to 2 May 2004. For the following reasons, by virtue of section 170MB(2), Simons will become bound by the agreement effective from 3 May 2004 as the successor to the relevant part of aiMs business. All relevant parties to the application consent to a retrospective date of operation. It is not against the public interest to certify the agreement with a retrospective date of operation.

PN34

Certifying the agreement with a retrospective date of operation would further the objects of the Act. I am assisted by the decision of Munro J in National Fleet Network v AMWU, PR 918894. Whilst not on all fours with this matter, this decision provides authority for the certification of an agreement involving a transmission of business. Taking into account the submissions made by the applicant and the relevant circumstances of the matter I am satisfied that I am able to certify the agreement with a retrospective operative date of 2 May 2004.

PN35

I am further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, it will be certified with effect from 2 May 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 [2.58pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 NDT COMPARISON OF aiM 170LK VERSUS AWARD ALLOWING $19 PER WEEK, AWARD INCREASE PENDING PN20
EXHIBIT #2 LETTER TO DEPUTY PRESIDENT BLAIN DATED 27/5/2004 FROM MR ANDREW ELLISON PN20