AG2004/2989, Transcript of Proceedings [2004] AIRCTrans 2512 (7 July 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 1882
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2004/2989

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Scott's Transport Industries Pty Limited
for certification of the Scott's Tasco Bulk
Tanker Operations Certified Agreement 2004

ADELAIDE

9.43 AM, FRIDAY, 25 JUNE 2004

PN1

MR KUCZMARSKI: I represent the Scott group of companies.

PN2

THE COMMISSIONER: You can speak to this application?

PN3

MR KUCZMARSKI: Yes. Thank you, sir. This application is made under Division 2, Part VIB of the Act. We are seeking certification of the Scott's Tasco Bulk Tanker Operations Certified Agreement 2004. There are a number of matters that I need to deal with in the communications I've had with your office, sir. You have asked for a statutory declaration from one of the employees. These employees are based in Victoria. I have with me a copy of the statutory declaration and the signature page of that statutory declaration. Because of the timeframe, I'm waiting for the original statutory declaration for your file to be delivered to my office, and that should be on Monday.

PN4

THE COMMISSIONER: Yes. I should just point out the rules. Rule 49, under which these statutory declarations are made - and I will just point this out for the record - rule 49(2) provides that:

PN5

The following persons must lodge with the application a statutory declaration in accordance with form R30, made by the person or another person authorised by that person to do so: (a) the employer -

PN6

as you have done, Mr Kuczmarski, or as subsection 170LB(2) of the Act applies -

PN7

each employer or corporation, as the case requires.

PN8

That is fine here. Then it says:

PN9

(b) If the agreement was negotiated by an employee acting on his or her own behalf, and on behalf of other employees, that employee.

PN10

Now, my understanding here is that in this case, this was not negotiated by a consultative committee, as such. It was negotiated with all the employees. I presume it does sometimes happen in this industry. Therefore, technically under the rule, a statutory declaration is not actually required. However, the difficulties we have - well, I have sometimes with LKs is one does take some comfort in having a separate statutory declaration there, at least from - well, I suppose it is only one employee, of course, but there could be others who might have a different view. One does take some comfort from having at least one employee statutory declaration on file, so I will peruse that and presume that that is in order. Sorry, you continue.

PN11

MR KUCZMARSKI: Well, sir, I was just going to comment on that. My understanding of that rule is similar to yours and that is, henceforth, why I didn't provide the statutory declaration of the one employee because there's three depots involved. There's 13 employees involved, and there's 5, 4 - whatever the composition of it is to make 13. We actually went to each of the depots and because there's only small numbers of employees at each of the depots, we actually had a group meeting to discuss the EBA and their concerns.

PN12

That is why, henceforth, we didn't have a consultative committee as such. I would agree with you that if we had had a consultative committee and an employee representing the interests of the other employees, then I would have provided a statutory declaration as per the rules.

PN13

THE COMMISSIONER: Yes, so just to make it clear, I'm only seeking it just for, as I say, some comfort from the Commission's point of view really.

PN14

MR KUCZMARSKI: The other thing, sir, that you haven't got in the application are, obviously, copies of the enterprise agreement. What I have here are the original signature pages because you only have a photocopy attached to the original enterprise agreement. Because of the distances, I wasn't able to get the original copies to be lodged with the documentation.

PN15

THE COMMISSIONER: So we have the originals there?

PN16

MR KUCZMARSKI: I've got the original signatures of each of the employees for your file. If I may, sir, as I've already mentioned, there are 13 employees covered by this agreement.

PN17

THE COMMISSIONER: 13 or 14?

PN18

MR KUCZMARSKI: 13, the statutory declaration says 13 - - -

PN19

THE COMMISSIONER: Okay.

PN20

MR KUCZMARSKI: - - - unless I've miscounted them. I think I've only got 13 signatures. Yes, I've only got 13 signatures.

PN21

THE COMMISSIONER: Yes, just a moment. No, you are correct, 13.

PN22

MR KUCZMARSKI: The agreement contains provisions for dispute settlement procedures which includes referring any unsettled disputes to the Commission. The enterprise agreement terms and conditions are as per the Transport Workers Oil Distribution Award (2001). That is the relevant award. Unless there are any other issues I can help the Commission with, we seek to have the agreement certified.

PN23

THE COMMISSIONER: A couple of questions, Mr Kuczmarski. The dispute settlement procedure in clause 23 says, in the second paragraph:

PN24

The following procedure will apply in the event of an industrial issue arising.

PN25

23.1:

PN26

The matter should first be discussed between the employee and the local manager or supervisor.

PN27

23.2:

PN28

If not settled, the delegate shall consult...

PN29

Who is the delegate?

PN30

MR KUCZMARSKI: Well, as I understand your comments there, the delegate is referred to as the local yard delegate, if there is a Transport Workers Union delegate on site.

PN31

THE COMMISSIONER: If there's not?

PN32

MR KUCZMARSKI: Then it will be handled by the branch manager and the individual, and then it would be referred onwards.

PN33

THE COMMISSIONER: So if there is no TWU delegate on site, then we go from 23.1, where it is first discussed between the employee and the local manager, and if they can't resolve it, we go straight to 23.3?

PN34

MR KUCZMARSKI: Yes, and that also includes further discussion with the senior levels of management. Then the next one says, 23.4, that it refers it again - that there is the union representation onto the sites.

PN35

THE COMMISSIONER: Yes. The only reason I raise that is because the term "the delegate" in 23.2 - - -

PN36

MR KUCZMARSKI: Does not explain it properly.

PN37

THE COMMISSIONER: It is out there on its own. I assumed it was a TWU delegate but, of course, there is no delegate at present anyway in this organisation.

PN38

MR KUCZMARSKI: At present? That is right.

PN39

THE COMMISSIONER: Now, in 6.4 of your statutory declaration - well, first of all, if you just go back to 6.2:

PN40

Would certification result, on balance, in a reduction in overall terms and conditions?

PN41

You answered that, "no." Then in 6.3:

PN42

Please identify, by referring to specific clauses in the agreement, any reductions.

PN43

Well, that is not applicable, as you have said. 6.4:

PN44

Please identify, by referring to specific clauses in the agreement, any terms and conditions which result, on balance, in there being no reduction.

PN45

You mentioned clause 10. Now, technically speaking, you need not have answered that, I suppose, 6.4, but you have answered that. Presumably, you are just highlighting that particular clause, clause 10, the wages?

PN46

MR KUCZMARSKI: That is correct, sir. 10.1.1 is really what we are highlighting.

PN47

THE COMMISSIONER: Yes, you are just highlighting that as providing remuneration in excess of award remuneration. You are not suggesting that there is any other element of the agreement that provides anything inferior in the award?

PN48

MR KUCZMARSKI: No, sir, no.

PN49

THE COMMISSIONER: I mean, I don't think there is, having looked at the agreement myself but I thought I would clarify that.

PN50

MR KUCZMARSKI: If I may, sir, this operation is very similar - well, identical to an operation we run in Adelaide called the Motrex agreement, and that agreement was recently certified before the Commission a couple of weeks ago.

PN51

THE COMMISSIONER: Is this agreement a first agreement or a rollover?

PN52

MR KUCZMARSKI: A first agreement for this part of the company, yes.

PN53

THE COMMISSIONER: Yes. What is its connection with Motrex?

PN54

MR KUCZMARSKI: It is just that it is the type of operation. It is a rural distribution, where we deliver to farm sites all over so we have Motrex which is an Adelaide-based company that delivers to farm sites, and Tasco is in the Mildura, Swan Hill, and Bendigo areas, and they do exactly the same type of work.

PN55

THE COMMISSIONER: Yes, and the agreements pretty well match up?

PN56

MR KUCZMARSKI: The agreements are identical. They are identical.

PN57

THE COMMISSIONER: I remember the Motrex agreement.

PN58

MR KUCZMARSKI: That is right, sir.

PN59

THE COMMISSIONER: You have included a wages schedule, haven't you, I think, in the agreement? That is at the back. The wages schedule is included?

PN60

MR KUCZMARSKI: Yes.

PN61

THE COMMISSIONER: That is well set out there. Those wages are, as you indicate, well in excess of the award rate. 13 employees, what was the result of the ballot?

PN62

MR KUCZMARSKI: All in favour, sir.

PN63

THE COMMISSIONER: When we say "a ballot", there was an indication - - -

PN64

MR KUCZMARSKI: There was an indication in each yard. Each depot manager conducted a meeting, and the employees all voted at that meeting.

PN65

THE COMMISSIONER: Yes. No further questions, Mr Kuczmarski.

PN66

MR KUCZMARSKI: Thank you, sir. We seek to have the agreement certified.

PN67

THE COMMISSIONER: I indicate then, for the record, that this application for an agreement is made pursuant to Division 2 of Part VIB of the Act, a certification of agreement pursuant to section 170LK. I have perused the statutory declaration of Ronald John Kuczmarski, Group Human Resources Manager, Scott's Transport Industries Proprietary Limited, the employer in this matter. I have also been handed today a statutory declaration from one of the workers, William J. Blair, local road transport driver from Swan Hill. A quick perusal of that declaration indicates that that is consistent with Mr Kuczmarski's declaration except, of course, that I've got a photocopied signature at the bottom. Do you have the original?

PN68

MR KUCZMARSKI: As I mentioned, sir, the signature block was only signed yesterday by a Justice of the Peace in Swan Hill. That original is coming to my desk today or Monday morning, and I will forward it on to the Commission for its file.

PN69

THE COMMISSIONER: Well, subject to looking at the final version of that statutory declaration, the declarations appear to be in order and supportive of this application. I note that the Transport Workers Oil Distribution Award (2001) is the relevant award for the purpose of the no disadvantage test. The agreement, at clause 23, includes procedures for preventing and settling disputes between the parties. I'm satisfied that a valid majority of persons employed at the time genuinely approved the agreement, and that the explanation of the terms of the agreement took place in ways that were appropriate.

PN70

Accordingly, the Commission certifies the Scott's Tasco Bulk Tanker Operations Certified Agreement 2004 with effect from today's date, 25 June 2004, the date of certification, and in accordance with clause 5, to remain in force until 31 July, 2005 being a date that, in accordance with the Act, is not more than 3 years after the date on which the agreement will come into operation. We will provide the necessary documentation in due course, Mr Kuczmarski, after we receive the original version of that statutory declaration from Mr Blair. I don't think there's anything further, unless there's anything further for the record? No? In that case, that concludes the hearing of this matter.

PN71

MR KUCZMARSKI: Thank you, sir.

ADJOURNED INDEFINITELY [9.55am]