AG2004/5014, Transcript of Proceedings [2004] AIRCTrans 2510 (7 July 2004)

AUSCRIPT PTY LTD
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ADMINISTRATOR APPOINTED

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TRANSCRIPT OF PROCEEDINGS

O/N 1883

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2004/5014

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Transport Workers Union of Australia
and Another for certification of the Whiteline
Transport (Australia) Pty Limited Enterprise
Agreement 2004

ADELAIDE

9.55 AM, FRIDAY, 25 JUNE 2004

PN1

MR BELL: I appear on behalf of the Transport Workers Union of Australia.

PN2

MS MIDDLETON: I am Director of Whiteline Transport (Australia).

PN3

THE COMMISSIONER: Thank you. Mr Bell?

PN4

MR BELL: Yes, Commissioner. Before you today is an agreement signed by Ms Middleton, the Director of the company; Mr John Allen, the Federal Secretary; and Mr Alex Gallacher, the Branch Secretary. It has been lodged with the Commission under Division 2, section 170LJ of the Australian Workplace Relations Act (1996). The TWU is the organisation legally entitled to represent the interests of employees covered by this agreement. The Transport Workers (Long Distance Drivers) Award 2000 is the award which underpins this agreement. The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declaration signed by Mr Allen, for the union, and Ms Middleton, for the company.

PN5

Commissioner, I understand that there is an issue with the statutory declaration from the company. Ms Middleton will address that during her time. Further, the agreement does not, in relation to the terms and conditions of employment, disadvantage employees who are covered by this agreement. The agreement, at clause 7, includes procedures for preventing and settling disputes between the parties and, in particular, allows for referral to the Australian Industrial Relations Commission for settlement at clause 7.6. The agreement only applies to part of a single business. Employees covered by this agreement have been consulted at meetings conducted at the work site.

PN6

Draft copies of the agreement were circulated to employees, and a formal vote was taken on 3 May, 2004 at which the majority voted in favour of this agreement. The result of the ballot was 10 for and 0 against. The total number of employees covered by the agreement is 29, and of those employees, 1 is a female employee. Commissioner, pursuant to Part VIB, Division 4, section 170LT of the Act, we seek the Commission to certify this agreement referred to as the Whiteline Transport Agreement, operative from today's date and expiring on 1 July, 2006. We also ask that the Commission exercises its discretion in keeping the schedules, appendix A and appendix B, from the public arena, if that is possible, as they are confidential.

PN7

THE COMMISSIONER: Appendix A and appendix B?

PN8

MR BELL: Yes, which incorporate the rates that are applicable to this agreement. They should be attached to all the copies.

PN9

THE COMMISSIONER: Yes. Well, I will note that request, Mr Bell. Mr Bell, the reason for the delay in submitting this is?

PN10

MR BELL: I wasn't quite sure, as my normal paperwork has not returned to me, so we have the usual complexity of getting the Federal Secretary to sign this and he was out of the State for a while. We had some delays so we ask - - -

PN11

THE COMMISSIONER: I notice Mr Williams had to sign it in Queensland, so I presume that might have been the reason?

PN12

MR BELL: Yes, so if you could - obviously, my submissions are incorrect as well then.

PN13

THE COMMISSIONER: Yes. Well, just for the record, the agreement was approved by a majority on 5 May, 2004. 21 days from that will take us to 26 May. The agreement itself, however, was lodged on 9 June, so I think we are some 14 days out of time but I did notice that Mr Williams, the Federal President of the union, rather than the usual National Secretary, signed the stat dec so I presumed there might have been some difficulties there.

PN14

MR BELL: Yes, sir, there has been, Commissioner. My usual response from the Federal office has not come to me, so I've had to rely on what I have left in my office.

PN15

THE COMMISSIONER: Well, I will hear from Ms Middleton in a moment. Do you know, Mr Bell, whether there was any change in the composition of the workforce from 26 May to 9 June?

PN16

MR BELL: Not as I'm aware, Commissioner.

PN17

THE COMMISSIONER: That ballot again - I mean, 14 participants - not even half the employees participated, and I know that is all legal, and I know the difficulties in getting people to vote but were there any particular issues here?

PN18

MR BELL: No. All the employees - there's some employees in Western Australia. They all had mailed to them the ballot and the agreement, and they were given the opportunity, by reply post, to send it back to us. We put a date of close-off and we even extended that a couple of days due to the mail process to make sure that everything came in but we didn't get any more, even after we closed the ballot.

PN19

THE COMMISSIONER: So even after you closed the ballot, there were no further ones that have come through?

PN20

MR BELL: No.

PN21

THE COMMISSIONER: I mean, the Act makes it clear that if people are given the opportunity to vote, they don't have to vote but they have got to be given the opportunity. If they don't, well that is too bad but it does - I know the difficulty in getting everyone to vote but, you know, we are in a situation where, in this case, 14 out of 29 employees bothered to vote and it wasn't unanimous, it was 10:4.

PN22

MR BELL: None against, sir.

PN23

THE COMMISSIONER: You know, I always prick up my ears when I hear those things.

PN24

MR BELL: It is particularly difficult in this sector, which is the long distance sector, because the employees are all out of town a lot of the time, and we don't usually have this problem when we have local agreements.

PN25

THE COMMISSIONER: Yes.

PN26

MR BELL: As you can understand, most of them are on the road 24 hours a day, 7 days a week.

PN27

THE COMMISSIONER: No, I understand the difficulty. Okay, that is all. I have no further questions, Mr Bell, for you. Ms Middleton, anything you want to say about this?

PN28

MS MIDDLETON: No, other than the union in WA were involved in the process as well, so the WA employees had a point of contact in the West as well, so I can't really understand why the ballot was like it was. I mean, as Les has explained, they were all given the same opportunity, so it purely is in their interests to - - -

PN29

THE COMMISSIONER: I think we just put it down to democracy.

PN30

MS MIDDLETON: Yes.

PN31

THE COMMISSIONER: Now, Ms Middleton, in your statutory declaration - I presume it is your statutory declaration?

PN32

MS MIDDLETON: Yes.

PN33

THE COMMISSIONER: Mr Bell alluded to this.

PN34

MS MIDDLETON: Yes, we have brought the corrected version.

PN35

THE COMMISSIONER: That is your signature at the end there, obviously? I couldn't quite make out the signature either.

PN36

MS MIDDLETON: It just comes from signing so many cheques every day.

PN37

THE COMMISSIONER: No, that is fine. That is okay. Now, the agreement was, as I indicated to Mr Bell, lodged out of time by some 14 days. Was there any change in the composition of the workforce between 26 May and 9 June? By that I mean were there any new employees coming into the business to be covered by this agreement, or any of the employees who were to be covered, did they resign? Was there any change like that?

PN38

MS MIDDLETON: There would have been probably a couple of drivers that would have come and gone, for sure.

PN39

THE COMMISSIONER: Only a couple?

PN40

MS MIDDLETON: Yes, I would have to verify that but not any great change, no.

PN41

THE COMMISSIONER: Yes. You see, my concern is that the ballot was 10:4. If there were some new employees - let us suppose there were 7 new employees who came.

PN42

MS MIDDLETON: No.

PN43

THE COMMISSIONER: Well, let us just suppose there were between 26 May and 9 June, and those 7 employees are all to be covered by this agreement. Well then, if they had the opportunity to vote, they might have voted against it to make it 11:10 against. Do you see what I mean?

PN44

MS MIDDLETON: Yes.

PN45

THE COMMISSIONER: That is what I'm trying to work through. I mean, they might have not voted at all, but those 7 might have replaced 7 of the 10 who voted in favour of the agreement.

PN46

MS MIDDLETON: There certainly wasn't that kind of volume of change. If we are talking any change at all, it would have been 1 or 2, as I said, but I'm not even sure that did happen in that time. I would have to check my records. I wasn't aware of this timing issue problem, so I would have come a little bit better prepared had I known that. I mean, we tend to keep the people that we've got. We don't have any real major changes in our workforce.

PN47

THE COMMISSIONER: Are you quite certain that any change in the composition of the workforce would have been only probably a couple at the most?

PN48

MS MIDDLETON: Yes.

PN49

THE COMMISSIONER: It wouldn't have been any more to alter that vote - - -

PN50

MS MIDDLETON: No.

PN51

THE COMMISSIONER: - - - or to the result of the ballot?

PN52

MS MIDDLETON: No, I feel quite confident.

PN53

THE COMMISSIONER: You are quite certain of that?

PN54

MS MIDDLETON: Yes.

PN55

THE COMMISSIONER: Mr Bell?

PN56

MR BELL: Yes, we are confident on that, Commissioner. The company has a good relationship with its employees, and they are well informed. Most of the employees have been long-term employees.

PN57

THE COMMISSIONER: All right. Anything further, Ms Middleton?

PN58

MS MIDDLETON: No. I think we are done, thank you.

PN59

THE COMMISSIONER: Thank you. Again, I indicate that the Commission has an application for certification of an agreement pursuant to section 170LJ. The agreement is supported by statutory declarations from Sharon Lee Middleton, Director of Whiteline Transport (Australia) Proprietary Limited, the employer in this matter, and Hughie Williams, Federal President, Transport Workers Union of Australia. Those declarations now appear to be in order. I note, firstly, that the agreement has been lodged some 14 days out of time.

PN60

Having regard to the explanations of the parties this morning in regard, firstly, to the reason for the delay, being the necessity to get the Federal President to sign the statutory declaration rather than the National Secretary who was unavailable and usually signs these things and, secondly, the fact that if there was any change to the composition of the workforce, it was only very minimal and not such as to affect the result of the ballot and, thirdly, the result of the ballot itself which was a clear majority, 10:4, in favour of the agreement - albeit only 14 employees out of the 29 elected to participate in the ballot - having regard to those factors, I am satisfied that I can grant the necessary extension of time.

PN61

MR BELL: Excuse me, Commissioner, it is 10:4 and none against.

PN62

THE COMMISSIONER: I'm sorry. 10 in favour?

PN63

MR BELL: Yes.

PN64

THE COMMISSIONER: Sorry, Mr Bell, when you said 10:4, I thought 10 in favour, 4 against so you were probably wondering - - -

PN65

MR BELL: I was wondering whether you had another piece of paper that I didn't have.

PN66

THE COMMISSIONER: You were probably wondering what I was talking about. That has happened before actually, so I thought it was 4 against. 10 in favour, none against?

PN67

MS MIDDLETON: 10 in favour.

PN68

THE COMMISSIONER: Well, that makes a considerable difference, so you were probably wondering about my mathematics earlier about the 7 workers that I talked about. I thought 4 plus 7 equals 11, you see?

PN69

MS MIDDLETON: Yes, because I had spoken - - -

PN70

THE COMMISSIONER: Okay. Well, having regard to those matters, I'm satisfied that we can grant an extension of the time that is necessary, and I do so pursuant to section 111(1)(r) of the Act. I note that the Transport Workers (Long Distance Drivers) Award 200 is the relevant award for the purposes of the no disadvantage test, and I'm satisfied that that test has been met. The agreement, at clause 7, includes procedures for preventing and settling disputes between the parties. I am satisfied that the other requirements of section 170LT of the Act have been met.

PN71

Accordingly, the Commission certifies the Whiteline Transport (Australia) Proprietary Limited Enterprise Agreement 2004 to be operative on and from 1 July, 2004 and, in accordance with clause 17 of the agreement, it will remain in force for a period of 2 years from that date in accordance with the provisions of the Act. The necessary documentation will be forwarded to the parties over the next few days. Unless there is anything further from the parties, that concludes the hearing of that matter.

ADJOURNED INDEFINITELY [10.08am]