AG2004/5488, Transcript of Proceedings [2004] AIRCTrans 3128 (11 August 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 776
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/5488

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Kanowna Belle Gold Mines Limited and
Another for certification of the Placer Dome
Asia Pacific Kalgoorlie Operations 170LK
Certified Agreement 2004 - Kanowna Belle
Underground Mining and Maintenance Operations

PERTH

4.21 PM, THURSDAY, 29 JULY 2004

PN1

MR R.H. GIFFORD: May it please the Commission, I appear on behalf of the applicant companies, they being, Kanowna Belle Gold Mines Limited and Placer Dome Kalgoorlie Ltd, both being part of the Placer Dome Asia Pacific Group. Also appearing with me is DELWYN SKINNER who is on the telephone connected to these proceedings.

PN2

THE DEPUTY PRESIDENT: Thank you, and Ms Skinner?

PN3

MS SKINNER: Yes, hello.

PN4

THE DEPUTY PRESIDENT: Good afternoon to you.

PN5

MS SKINNER: Good afternoon. I have just one comment, it's just very - it is quite hard to hear you.

PN6

THE DEPUTY PRESIDENT: I wonder if that is better. We have just changed the position of the microphone?

PN7

MS SKINNER: Yes, that is much better, thank you.

PN8

THE DEPUTY PRESIDENT: Thank you. And Mr Gifford, can you hear clearly?

PN9

MR GIFFORD: Yes, I can. Thank you, Deputy President.

PN10

THE DEPUTY PRESIDENT: Thank you. And I wonder, is there with you in Kalgoorlie, Ms Skinner, Mr Lucas?

PN11

MS SKINNER: Yes, there is, I will introduce MR BRIAN LUCAS who is sitting right next to me.

PN12

THE DEPUTY PRESIDENT: Thank you. Good afternoon, Mr Lucas.

PN13

MR LUCAS: Good afternoon.

PN14

THE DEPUTY PRESIDENT: Please commence, Mr Gifford.

PN15

MR GIFFORD: Yes, thank you, Deputy President. This is an application by the applicant companies in which they seek the certification of a section 170LK agreement. And they seek the certification pursuant to section 170LT. The agreement to be known as the Placer Dome Asia Pacific Kalgoorlie Operations 170LK Certified Agreement 2004 - Kanowna Belle Underground Mining and Maintenance Operations. And the Commission, of course, having a copy of that agreement, will note that clause 3 sets the application of the agreement, that is to the applicant companies and to all employees who fit within the position classifications as outlined in appendix A. And I won't take the Deputy President to them but it is also to be noted that this is an agreement that is to operate in accordance with the terms set out in clause 4, that is, for a 3 year term commencing from the date of certification, presuming of course, it is to be certified as a result of these proceedings.

PN16

The Deputy President will have before him a statutory declaration that has been signed and witnessed by Delwyn Skinner, the HR Superintendent of the company. There was an issue in one of your directions, Deputy President, about the witnessing of that but I would like to think that that matter has been resolved by virtue of my colleague, Natasha Wainwright, her fax to the Commission of 26 July.

PN17

Whilst it may suffice for me merely to suggest to you, Deputy President, that that statutory declaration addresses all of the statutory requirements and obligations in relation to certification process, that notwithstanding, I did just want to highlight some aspects of that statutory process just by way of reinforcement, if I may. And clearly, if there are questions of detail, Delwyn Skinner, because of her direct involvement in the process, will, I am certain, be able to assist the Commission should that be necessary.

PN18

Firstly, in relation to the vital question as to whether there has been a valid majority voting in favour of the agreement in terms of those employees who were employed at the time of the approval of it, there was a further issue that was raised in your directions as to some confusion in your mind in relation to that. I would like to believe on the basis of further advice that you have now received in the fax of 26 July, and attached to it a letter from the Returning Officer from the Australian Electoral Commission who was responsible for conducting the ballot, his letter, or fax if you like, to Delwyn Skinner dated 26 July and the attached document, we would like to submit, properly clarifies the question as to whether in relation to the vote taken under his supervision, whether it did constitute a valid majority of those voting.

PN19

And the schedule that attaches to his letter clearly sets outs the numbers that were involved in the ballot, the detailed break down. I don't need to take you to it, but the actual voting results, those in favour and those against and any informal. And at the bottom of that you will note his declaration in these terms - - -

PN20

THE DEPUTY PRESIDENT: I should interrupt at that point to say that I don't actually have a copy of that fax on the file.

PN21

MR GIFFORD: Oh, is that so?

PN22

THE DEPUTY PRESIDENT: I am not sure that my Associate received it and hence, if you would wish, perhaps to just summarise the relevant provisions, they will certainly be recorded on the transcript.

PN23

MR GIFFORD: Well I do regret that you don't have a copy of that. It was sent to fax number 9464 5171, which I think is the Australian Commission fax but obviously I can have copies made of these for the file. But certainly the essence of the fax was that in terms of clarifying your question as to whether there had been a proper valid majority voting in favour of the agreement, that this letter, and in fact, I should really put it immediately before you, Deputy President, so that you can see what the Returning Officer says.

PN24

THE DEPUTY PRESIDENT: Thank you.

PN25

MR GIFFORD: And I think I have perhaps outlined the essence of it.

PN26

THE DEPUTY PRESIDENT: Did you wish to tender this formally?

PN27

MR GIFFORD: I certainly do. I certainly do.

EXHIBIT #1 FAX FROM RETURNING OFFICER
FROM THE AUSTRALIAN ELECTORAL COMMISSION

PN28

MR GIFFORD: Thank you very much. Although I no longer have that - sorry, I will let you read that, Deputy President.

PN29

THE DEPUTY PRESIDENT: Yes, I have indeed now read the, I believe, the ultimate paragraph.

PN30

MR GIFFORD: Yes.

PN31

THE DEPUTY PRESIDENT: Which is the one which gives the clear confirmation of approval by a valid majority.

PN32

MR GIFFORD: Yes, indeed. Indeed. Thank you for that. And having indicated that I would tender that, I would also confirm that I will ensure that a copy of the fax is on the file as well because clearly, it is very important that the record confirm that the directions that you sought to be answered, were in fact answered prior to these proceedings. And I do regret that for reasons that I can't explain, it did not reach you as it should.

PN33

THE DEPUTY PRESIDENT: Well I would simply just perhaps by way of clarification say that the Commission usually receives faxes but it doesn't always and it may be that there was something in the transmission that conspired against it actually being received in the Chambers.

PN34

MR GIFFORD: Okay, well thank you, Deputy President. So there is that vital question and we would submit that certainly the report of the Returning Officer makes it very clear indeed, that the valid majority requirements that the legislation lays down, were entirely satisfied in relation to the voting arrangements that occurred over that period, 21 to 25 June. The next important consideration in terms of the legislation is whether the relevant employees received a notice of intention to make an agreement from the employer. And in terms of the statutory declaration that has been provided by Delwyn Skinner at 5.4, there is clear confirmation that such advice was provided to each employee.

PN35

This is set out, I might say, in appendix B to the information that was tendered when the application was filed. That

PN36

being a letter of 2 June 2004. And whilst I have a copy, I do trust that you do have a copy, Deputy President, headed appendix B.

PN37

THE DEPUTY PRESIDENT: Indeed. It is certainly on the file.

PN38

MR GIFFORD: Headed, Notice of Intention. Thank you very much and the terms of it are self evident but I would further confirm though in the context of the legislative requirements that the company allowed employees to consider the information that was contained there through to 20 June 2004 in order that they might address the question of whether they wished to approve it or not. And we say that that is a greater than the 14 day period that the legislation lays down. And confirmation of this is set out in Delwyn Skinner's stat dec at point 5.10.

PN39

And finally, the other important question laid down in the legislation of the employees being advised of the right to engage an organisation to represent them. That is a matter in terms of the letter, the Notice of Intention letter, that is clearly set out in the final dot point in that letter and it confirmed, by Delwyn Skinner, in her stat dec at point 5.6. So we say that obligation has been entirely met. In terms of the obligation for the company or the companies to meet and confer with an organisation that might act as, or seek to act as a representative, that was unnecessary because there was no such right sought to be exercised. That is at point 5.7 in the statutory declaration.

PN40

In terms of employees having access to the agreement, which is another important requirement legislatively, each employee did receive a copy of the agreement, and certainly a statement dealing with its key benefits, together with more specific detail on the stock purchase plan and the corporate health plan. And there was other information provided and all of the details of that are set out in the statutory declaration at point 5.5. And I won't take the Deputy President to that in any further detail.

PN41

In terms of the steps that were taken to explain the terms of the agreement to the employees concerned, again, I won't take the Deputy President to the details of that but Delwyn Skinner sets that out at point 5.8. So far as the no disadvantage test is concerned, another important requirement, clearly that has been carried out by the companies in terms of doing that test in accordance with the offers of employment advocate NDT calculator, which is not a requirement that has to be followed but it is a very convenient and objective requirement. And all of the relevant information the Commission has before it in the appendix C documents. And certainly, as confirmed, in the statutory declaration of Delwyn Skinner at point 6.3. The outcome of that test was clearly that as at the date of the agreement being approved it was well and truly passed. And indeed, it is fair to say that if one looks at the relevant annual figures comparing the award calculation and the AWA calculation, there is a very substantial difference in favour of the AWA outcome.

PN42

THE DEPUTY PRESIDENT: Did you say, "AWA outcome?"

PN43

MR GIFFORD: Did I say, "AWA?" I certainly didn't mean AWA outcome because I picked that up from the form.

PN44

THE DEPUTY PRESIDENT: Yes, indeed.

PN45

MR GIFFORD: And that is why it was used, the 170LK outcome.

PN46

THE DEPUTY PRESIDENT: Indeed, thank you.

PN47

MR GIFFORD: Thank you for confirming that. There are other matters that don't fit quite the importance of the issues that I have already outlined but are otherwise dealt with in the statutory declaration and I won't take the Commission to any further of those. But suffice to say that in the context of the totality of the obligations that are laid down in the legislation, we say those obligations have been entirely met and satisfied and that the agreement that has been proposed and entered into, it represents a genuine agreement in the way in which the legislation intends.

PN48

The agreement, just in a technical sense, contains the dispute resolution clause that is required, that the stat dec at 6.6.2 confirms this, and of course, the nominal expiry date is evidence by virtue of the clause I have already referred to that sets out the term of 3 years from the certification date. And that is also confirmed in the statutory declaration. So in light of what has just been outlined, Deputy President, I would respectfully request on behalf of the applicant companies that this particular 170LK agreement be certified pursuant to the relevant section 170LT provisions of the Act. And on the basis of my having sought that, I think that concludes all I need to put to the Commission. And as I say, Delwyn Skinner is available to clarify any further matters. Thank you, Deputy President.

PN49

THE DEPUTY PRESIDENT: Thank you, Mr Gifford. Can you confirm that the agreement passes the no disadvantage test as of today's date?

PN50

MR GIFFORD: As of today's date, certainly, Deputy President.

PN51

THE DEPUTY PRESIDENT: Thank you. And perhaps I could ask for your confirmation of what I understand to be the position.

PN52

MR GIFFORD: Certainly.

PN53

THE DEPUTY PRESIDENT: In relation to the name of the employer, and I wondered if you were able in particular, to confirm pursuant to the relevant questions and answers in the statutory declaration and relevant clauses in the agreement, that it would be your understanding that there is compliance with sections 170LB(2A) of the Act, in that there would be a joint venture or common enterprise as per that provision. And in relation to 170LB(2B) that in relation to the reference to the Corporations Act, that there is, in fact, one employer and that this is the case with this application?

PN54

MR GIFFORD: It is certainly my understanding that this application deals with one employer in the sense that the two-named organisations are directly related in the way in which that is set out in the statutory declarations and the statutory declaration where the following is said:

PN55

The above constitutional corporations are related corporate entities in that they are all wholly owned subsidiaries of Placer Dome Asia Pacific Limited.

PN56

and are therefore related corporations for the purposes of that relevant section, that is, section 50 of the Corporations Act 201. So in terms of it then constituting a common enterprise for the purposes of those parts of the legislation, we submit that in fact that requirement has been satisfied.

PN57

THE DEPUTY PRESIDENT: Thank you for that.

PN58

MR GIFFORD: Thank you.

PN59

THE DEPUTY PRESIDENT: That indeed does provide the confirmation that I was seeking. Thank you.

PN60

MR GIFFORD: Thank you, Deputy President.

PN61

THE DEPUTY PRESIDENT: I have no further questions to you, Mr Gifford, but I would ask Ms Skinner in Kalgoorlie.

PN62

MS SKINNER: Yes.

PN63

THE DEPUTY PRESIDENT: If perhaps you would be able to confirm the date and the place of your statutory declaration?

PN64

MS SKINNER: Yes, I signed that in front of the Pharmacist at Crawford Soul Paterson's Chemist, which is in Hannah Street in Kalgoorlie. And I signed that agreement - sorry, yes - yes, I did signed that agreement, that statutory declaration, and I will just confirm the date, going into my calendar. Bear with me. Friday, 2 July.

PN65

THE DEPUTY PRESIDENT: Thank you for that. The statutory declaration did actually mention Crawford's Soul Paterson Chemist but gave no further details which you have now supplied.

PN66

MS SKINNER: Yes.

PN67

THE DEPUTY PRESIDENT: That answers those questions. Thank you, Ms Skinner, and this is, of course, an opportunity if you wish to express your support for the certification of the agreement by the Commission, if you would so wish?

PN68

MS SKINNER: Are you directing that question to me, sir?

PN69

THE DEPUTY PRESIDENT: Yes, I am just simply saying since I am speaking to you and you have now made the submission to the Commission, if you would wish to add any comments to support the application for certification, this is opportunity, if you so wish.

PN70

MS SKINNER: Sir, I mean, nothing specific that I can add. You know, I have been involved in the process over a very long period of time and I am confident in myself that we have met all the legislative requirements.

PN71

THE DEPUTY PRESIDENT: Good, thank you. Thank you for that clarification and confirmation and I would invite in Kalgoorlie also, Mr Lucas, if you would wish to express your view, that could be helpful to the Commission.

PN72

MR LUCAS: Yes, being a - on the receiving end of the agreement, everything was then presented to us on time and requests were followed, and yes, more than happy with it.

PN73

THE DEPUTY PRESIDENT: And you would wish to see to certified by the Commission?

PN74

MR LUCAS: Yes, sir.

PN75

THE DEPUTY PRESIDENT: Thank you. The Commission has no further question and unless there is any further matter to be raised, I turn to the application which is pursuant to Part VIB, Division 2, section 170LK of the Act, to certify an agreement to be known as the Placer Dome Asia Pacific Kalgoorlie Operations 170LK Certified Agreement 2004 - Kanowna Belle Underground Mining and Maintenance Operations.

PN76

Having heard Mr R Gifford, together with Ms D Skinner on behalf of Placer Dome Asia Pacific Limited and Mr B Lucas on behalf of the employees, and having read the statutory declarations of Ms D Skinner on behalf of Placer Dome Asia Pacific Limited, I am satisfied that the agreements filed relate to the following constitutional corporations. Kanowna Belle Gold Mine Limited, ACN 010 511 789 and Placer Dome Kalgoorlie Limited, ACN 009 712 092.

PN77

The agreement passes the no disadvantage test. 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 its terms was appropriate. It includes procedures for preventing and settling disputes between the employer and the employees whose employment would be subject to the agreement. And it specifies a nominal expiry date not more than 3 years after the date on which the agreement would come into operation.

PN78

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 29 July 2004 to operate in accordance with its terms from that date. The formal certificate will issue in due course. These proceedings are adjourned.

ADJOURNED INDEFINITELY [4.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 FAX FROM RETURNING OFFICER PN28