AG2004/3590, Transcript of Proceedings [2004] AIRCTrans 2775 (19 July 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220
(ADMINISTRATOR APPOINTED)
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 702

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/3590
AG2004/3593
AG2004/3594

APPLICATIONS FOR CERTIFICATION
OF AGREEMENT

Application under section 170LL of the Act
by Stolt Offshore Pty Ltd and Another for
certification of the Stolt Offshore
Pty Diving Agreement 2004.

Application under section 170LJ of the Act
by Technip Oceania Pty Ltd and Another for
certification of the Technip Oceania Pty
Diving Agreement 2004

Application under section 170LJ of the Act
by Global Offshore Pty Ltd and Another for
certification of the Global Offshore Pty
Ltd Diving Agreement 2004

AG2004/3592

APPLICATION FOR DETERMINATION OF
DESIGNATED AWARD FOR CERTIFIED
AGREEMENT

Application under section 170XF of the Act
by Technip Oceania Pty Ltd and Another for
determination of designated award in
relation to the Technip Oceania Pty
Diving Agreement 2004

PERTH

2.09 PM, THURSDAY, 8 JULY 2004

PN1

MS N. WAINWRIGHT: I appear on behalf of Stolt Offshore, Technip Ocean and Global Offshore in these matters.

PN2

THE DEPUTY PRESIDENT: Thank you, Ms White.

PN3

MS J. WHITE: I appear on behalf of the Maritime Union of Australia.

PN4

THE DEPUTY PRESIDENT: Thank you, Ms White. My apologies, Ms Wainwright. Ms Wainwright, please commence?

PN5

MS WAINWRIGHT: Thank you, Deputy President. I understand that we're dealing with the XF application initially this morning. The application is seeking to designate the Professional Divers Maritime Union of Australia Award 2002 as the relevant award for the certified agreements. That award covers work of a similar nature to that undertaken by these employees and it applies to employers who undertake similar businesses within the industry. This award has also been accepted by Commissioner Raffaelli as designation in enforcing similar agreements which were registered on 11 July. If that satisfies the Commission, that ceases my submission on the XF application.

PN6

THE DEPUTY PRESIDENT: I have no further questions at this point, Ms Wainwright. Ms White?

PN7

MS WHITE: Your Honour, I accept and adopt the submissions of the applicant. I would ask that you do designate the Professional Divers Maritime Union of Australia Award 2002 in determining the no disadvantage test. If the Commission pleases.

PN8

THE DEPUTY PRESIDENT: Thank you. By application filed on 31 May 2004, Technip Oceania Pty Ltd sought for the purposes of Part VIE of the Workplace Relations Act 1996, the Act, a determination of the appropriate award to be used for the purpose of deciding whether the agreement passes the no disadvantage test. Having heard Ms N. Wainwright on behalf of the applicant and Ms J. White, I determine pursuant to section 170XF of the Act that the following award is the appropriate award. Professional Divers Maritime Union of Australia Award 2002. This determination will take effect from 8 July 2004. Please continue with the subsequent applications, Ms Wainwright.

PN9

MS WAINWRIGHT: Thank you, Deputy President. The remaining applications deal with the request for certification of the agreements. There are two LJ agreements and one LL application. The application by Stolt Offshore is made as a Greenfields applications as there were no employees at the date of making the agreement. The LJ applications have been made in accordance with the Act and a valid majority of employees did agree with the making of these certified agreements. The Deputy President requested some additional information in addition to that supplied by statutory declarations, which I trust you have received.

PN10

In regards to that additional information, you requested that we address in relation to clause 4 of the agreement the date that the agreement takes effect. The parties understand that under the Workplace Relations Act, the certified agreement will take operation and legal effect from the date of certification by the Commission. The date specified in the agreement is the date that the parties began to administratively apply the agreements. For example, providing wage increases to the employees concerned where there were employees. Between 3 May and the date of certification, we understand that the agreement is not a certified agreement under the Workplace Relations Act and does not have operation under that Act.

PN11

We hope that satisfies the Commission with respect to that question. The employers assert that the agreements meet the requirements under the Workplace Relations Act for certification and that evidence is supported by other statutory declarations and the additional information supplied. If it pleases the Commission, that is my submission. Thank you.

PN12

THE DEPUTY PRESIDENT: Thank you, Ms Wainwright. In relation to the no disadvantage test, are you able to confirm that the agreement passes the no disadvantage test as of today's date?

PN13

MS WAINWRIGHT: I am.

PN14

THE DEPUTY PRESIDENT: In relation to the question of extension of time, do you wish to deal with that?

PN15

MS WAINWRIGHT: Thank you, Deputy President. The issue in relation to the extension of time was dealt with by my colleague Ms White in relation to the earlier hearing before Commissioner Raffaelli, which were predominantly surrounding the same circumstances. I accept and adopt her submissions in relation to that if she would like to repeat them today.

PN16

THE DEPUTY PRESIDENT: Thank you. Yes, Ms White?

PN17

MS WHITE: Your Honour, I accept and adopt the submissions made by the applicant and in particular we would request an extension of the statutory period for filing the documentation. We would ask the Commission to exercise its discretion under section 11(1)(r) of the Act. There was some difficulty encountered in executing the agreement and preparing the documentation. The union requires a majority of national counsellors to endorse all agreements before the national secretary can execute the agreement. Unfortunately a lot of our officers were overseas at that time and it took me some time to maintain that majority. I have to say that the number of employees governed by the agreement has not changed since the date it was approved, so other than that explanation, we would commend the document for certification today.

PN18

THE DEPUTY PRESIDENT: Thank you. There being no further submissions, the Commission deals with the application to extend time pursuant to section 111(1) of the Workplace Relations Act 1996. I grant an extension of time for the application, for the reasons given, that the application is only approximately 7 days late and that some union officials were away overseas at the time. However, at the same time I do note that section 170LM does set a 21-day time limit and as a general rule, as I'm sure all parties are aware, all parties should use their best endeavours to ensure compliance with it.

PN19

I turn to the applications themselves, noting that there are three applications pursuant to Part VIB, Division 2, Section 170LJ and Section 170LL of the Workplace Relations Act 1996 to certify three agreements to be known as the Technip Oceania Pty Ltd Diving Agreement 2004, Global Offshore Pty Ltd Diving Agreement 2004 and Stolt Offshore Pty Ltd Diving Agreement 2004. Having heard Ms N. Wainwright on behalf of those three employers and Ms J. White on behalf of the Maritime Union of Australia and having read the statutory declarations filed by Mr A. Bolton on behalf of Technip Oceania, Mr R. Barton on behalf of Global Offshore Pty Ltd, Mr M. Forbes on behalf of Stolt Offshore Pty Ltd and Mr M. Doleman on behalf of the MUA, I'm satisfied that the agreements pass the no disadvantage test, were made in accordance with either section 170LJ or 170LL, include procedures for preventing and settling disputes between the employer and employees whose employment would be subject to them and specify a nominal expiry date not more than 3 years after the date in which they would come into operation.

PN20

I am further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreements. Accordingly the agreements will be certified with effect from 8 July 2004 to operate in accordance with their terms from the same date. Formal certificates will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [2.19pm]