AG2004/2820, Transcript of Proceedings [2004] AIRCTrans 2544 (8 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 12112

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

AG2004/2820

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Carnival plc t/as P&O Cruises Australia
for certification of Carnival plc Enterprise
Agreement 2004

SYDNEY

2.20 PM, MONDAY, 28 JUNE 2004

PN1

MR D. DAVIES: I'm a consultant and I seek leave to appear on behalf of Carnival plc trading as P&O Cruises.

PN2

THE COMMISSIONER: Yes. Leave is granted, Mr Davies.

PN3

MS N. ARROWSMITH: I appear for the Australian Services Union.

PN4

THE COMMISSIONER: As intervener at this stage?

PN5

MS ARROWSMITH: We wish to become a party to the LK agreement, Commissioner.

PN6

THE COMMISSIONER: Mr Davies?

PN7

MR DAVIES: Can I say two things, Commissioner. Also present in the Court with me are MS PLUME, the company's human resources manager, and MS BLAZEVIC and MS LOCKE, who are two employees of the 160 people covered by this agreement. In relation to Ms Arrowsmith's appearance, we had a brief discussion prior to these proceedings and it appears as though Ms Arrowsmith will be making an application pursuant to section 170M of the Act that the union become a party to the agreement without seeking to change its terms.

PN8

In the overall scheme of things there seems to be a 180 degree change in the union's view, from my instructions. Nevertheless, I'm aware of the provisions of 170M and, notwithstanding the fact that we don't have an application in writing from the union on this occasion, I'm not objecting to Ms Arrowsmith being here.

PN9

THE COMMISSIONER: Yes. Well, the intervention is granted, Ms Arrowsmith. Yes, Mr Davies?

PN10

MR DAVIES: Commissioner, we seek approval today of the Carnival plc Enterprise Agreement 2004. Carnival plc is a company which trades as P&O Cruises of Australia and we seek that the agreement be made pursuant to section 170LK of the Act. Commissioner, various documents have been filed in this matter as required by the provisions of the Act and we say that the documents that were filed with the Commission, those being an application, relevant original and copies of the agreements and a statutory declaration of Mr Gavin Smith, the company's chief executive officer, meet the requirements of the Act and, indeed, the agreement itself meets the technical requirements of the Act. The agreement expresses in clause 4 a term which expires on 31 December 2005 and it also contains a disputes procedure clause, that being clause 36.

PN11

The background to negotiations is somewhat chequered and is set out in Mr Smith's affidavit and we rely on that. But briefly stated, let me say that this agreement replaces a 170LJ agreement which had been negotiated with the ASU in previous years. Negotiations between my client and the ASU at a local, that is a delegate level, and then subsequently official level commenced during the second half of 2003, but a hiatus was reached earlier this year and, notwithstanding I would suggest valiant attempts by my client to get the negotiations going again, there seemed to be a lack of enthusiasm from the other side.

PN12

Now, Ms Arrowsmith can't respond to this because she hasn't been with the union long enough. I'm not seeking to make any criticism of the union or, indeed, certainly not of her. Nevertheless, the company changed horses in midstream and indicated to employees by memorandum on 18 May that it intended to make an application for an agreement pursuant to section 170LK. Copy of the agreement was given to the employees at the time. They were advised that if they were members of an organisation they were entitled to have the organisation represent you in negotiating the agreement.

PN13

The agreement was given to the employees. They had it for the requisite 14 days. A vote was taken on 1 June and of the 160 employees covered by the agreement, my instructions are that 102 people voted and the vote was 92 in favour and 10 against. There were some typographical errors in the enterprise agreement which were subsequently removed, but the company was of the view that as the errors were just that, errors, and in fact the resultant changes benefited the employees that it would not put the agreement out for a further 14 days.

PN14

Commissioner, notwithstanding the chequered career of this agreement, we ask the Commission to certify the agreement in terms of the documents that have been filed. If it please the Commission.

PN15

THE COMMISSIONER: Yes. Ms Arrowsmith?

PN16

MS ARROWSMITH: Thank you, Commissioner. As stated by Mr Davies, the Australian Services Union were involved originally with the negotiations for this agreement. I have with me copies of two documents. One of them is a request for representation from a union member at P&O and the other is a letter to Mr Gavin Smith, Managing Director, signed by Christian Thompson, the Branch Secretary of the Australian Services Union indicating that the ASU still wishes to be participating in the negotiations.

PN17

The request for representation was dated 25 May 2004. The letter from Christian Thompson is dated 1 June 2004. The ASU has strong membership at P&O. We don't object to the content of the agreement, as was partly negotiated by the union. We seek to become a party of that agreement.

PN18

THE COMMISSIONER: Yes, thank you. First of all, notwithstanding that there has been no application in writing from the union, although there is some communication in writing been referred to, notwithstanding that, the Commission proposes to exercise its wide powers contained in section 111 in a way that ensures that, given the circumstances now, that the ASU does wish to become bound by the agreement and it will be so bound.

PN19

In respect of the agreement itself, the Commission is satisfied that the relevant requirements of the Act and of the rules of the Commission have been complied with. It's normal that the Commission will in an LK matter hear from employees, but in the circumstances of what I've heard from the ASU, I don't think it's particularly necessary. Consequently, as I predicted, the Carnival plc Enterprise Agreement 2004 will be certified. It will come into force from 28 June 2004 and will remain in force until 31 December 2005. On that basis, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [2.27pm]