AG2004/6207, Transcript of Proceedings [2004] AIRCTrans 3281 (20 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 12977

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2004/6207

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Tyco Australia Pty Limited and Another
for certification of the ADT Customer Care
Centre Rydalmere Enterprise Agreement 2004-2006

SYDNEY

11.39 AM, TUESDAY, 10 AUGUST 2004

PN1

MR P. DARBY: I represent the company in this matter and with me, Commissioner, is MR EDWARDS who is an employee representative for the committee, MR BROWN, Manager of ADT Call Centre and MR RIGNEY, the HR Manager.

PN2

THE COMMISSIONER: Yes, thank you, Mr Darby. This is a section 170LJ agreement?

PN3

MR DARBY: It is, Commissioner.

PN4

THE COMMISSIONER: Okay. There is no representation from the union?

PN5

MR DARBY: Commissioner, I got a late call coming down from Newcastle that that would certainly be the position, that they wouldn't appear. I've asked Mr Rigney to get in contact with them and send a fax to yourself stating that they agree with the specific document to be registered. That is number 1. I think there are some issues on hand too, Commissioner.

PN6

THE COMMISSIONER: Well, one of the difficulties I have is that I don't have a signed agreement.

PN7

MR DARBY: I mean, Commissioner, I can understand that position, only from this basis, that your associate rang me on two separate occasions. I did make contact with Mr Rigney in respect to such a request.

PN8

THE COMMISSIONER: Well, a requirement.

PN9

MR DARBY: A requirement, and I believe up until today that the union believes that the document has been signed and the statutory declaration has been signed and forwarded to the Commission. Now, I can't answer for them. I can only relay the position, Commissioner.

PN10

THE COMMISSIONER: We don't have an original - well, the original statutory declaration filed was missive but by the union was, on my personal file, missing the last two pages. Then the Registrar would say the Registry contacted the union and then we received a fax on 30 July which has the statutory declaration and would appear to have been signed by the union. It is not an original statutory declaration but I take it that I have a statutory declaration for union. Then my associate, as you say he has been trying to chase this agreement up and getting some sort of structure to it, forwarded out on 2 August, which was a copy to you, Mr Darby, correspondence to the union stating what we needed in regards to certification.

PN11

MR DARBY: That is correct.

PN12

THE COMMISSIONER: Then we didn't actually get anything from the union until - well, evidentially in response to your call, somebody or the company has called the union, this morning at about 4 minutes to 11, we get an email from a Mr Stan Kolouris stating they agree with the agreement. It is not signed or anything. I don't have a signed agreement. The rules in 48(2) says that the application must be accompanied with the agreement signed by the parties and of course there are other requirements but I don't have an agreement signed by the parties.

PN13

MR DARBY: Yes, Commissioner, I agree with everything you have said. Your associate did email to me - as soon as I received that email, I made contact with the HR manager and requested him to make contact with the union and to follow that email through and he did that. I don't know what has happened from the union's perspective but we have got employees waiting for, obviously, for payment. I can see the predicament from the Commission's point of view. I might suggest that we go back to square one and that would be for me to prepare the documentation again and resubmit it will out of the 21 days, Commissioner, but I'm sure the Commissioner has rights in respect to that and could exercise those rights.

PN14

I think that is our only alternative and on that basis, I think what we will do is pay the employees. That is a bit dangerous for us, I suppose, if we don't get agreement out of the union but I'm pretty sure - I might say this an agreement that has come together over several meetings. It is not something that has been done in the back room. We have had a committee that has been established and so on and so on. So I'm very confident. I just don't think one hand knows what the other hand is doing in respect to the other party.

PN15

THE COMMISSIONER: Well, Mr Darby, I have a suggestion for you and it might not be as drastic as your suggestion. I will put on the record that I am not impressed at all with the union's - from my perspective - disrespect of this Commission. My associate went to great lengths to try and assist the parties. It would appear that - well, from the union's perspective - it is not appreciated. I acknowledge that we have evidently got an email saying they consent to the agreement. What I would have liked was a signed copy of the agreement in accordance with the rules of this Commission.

PN16

I don't want a fax of it either. I want the original. I will hear your submissions for certification, Mr Darby. I have no intention of disadvantaging your company, nor the employees employed by the company because someone decides they don't have time to present themselves in this Commission and at least have the decency to forward in original documentation. I will hear your submissions. If your submissions satisfy me that the statutory requirements for certification have been met, I will certify the agreement from today's date.

PN17

However, unless I receive an original signed agreement from the union within 7 days, I will determine that I will not waive the requirements of the rules and I will not certify the agreement. Is that fair enough?

PN18

MR DARBY: Yes, that is more than fair, Commissioner. Thanks very much.

PN19

THE COMMISSIONER: Mr Darby, you will put your order in for transcript in this matter please?

PN20

MR DARBY: I will, Commissioner.

PN21

THE COMMISSIONER: Can I charge you with the duty of advising the union when I conclude this matter that I require a signed copy of the agreement from the union, with the official authorised to sign such a documentation?

PN22

MR DARBY: I will do it in person, Commissioner.

PN23

THE COMMISSIONER: Thank you. That is to be in my office by no later than close of business, Tuesday, 17 August.

PN24

MR DARBY: A day before my birthday, Commissioner.

PN25

THE COMMISSIONER: Happy birthday. You are a Leo also, Mr Darby?

PN26

MR DARBY: I am, a leader, in this respect I've failed.

PN27

THE COMMISSIONER: You can't beat a Leo, Mr Darby. All right. Now, I think we are clear. Can I have your submissions please?

PN28

MR DARBY: Yes, Commissioner. As stated by the Commissioner and accepted by ourselves, this is an agreement that is lodged under 170LJ of the Workplace Relations Act (1996). The agreement has been negotiated with the union and a consultative committee that was formed by an election by employees. The agreement, Commissioner, does not disadvantage any employee that is bound by the agreement. The agreement also has a dispute settlement procedure, clause 11, that relies on the Commission at the end to resolve disputes.

PN29

THE COMMISSIONER: By arbitration, I note, Mr Darby?

PN30

MR DARBY: Yes, Commissioner. The agreement has a termination date which is September '06. We say that the agreement meets the regulations of the Commission and the Workplace Relations Act. I might say that an election - a vote was taken by all employees that would be potentially bound by the agreement or are bound by the agreement and, of course, that vote was in excess of 50 plus 1.

PN31

THE COMMISSIONER: When was the vote taken, Mr Darby?

PN32

MR DARBY: It should appear on the stat dec, Commissioner. Because of the shift work it was over the three days, 12, 13 and 14 July.

PN33

THE COMMISSIONER: Then the agreement was made on 15 July?

PN34

MR DARBY: It was.

PN35

THE COMMISSIONER: Employees were given at least 14 days?

PN36

MR DARBY: All employees had access to a document, and had 14 days cooling off prior to the making of the agreement, Commissioner.

PN37

THE COMMISSIONER: All right. When was the document provided to the employees, Mr Darby?

PN38

MR DARBY: Well obviously, Commissioner, the drafts were provided on an ongoing basis because there were several meetings and several changes to that document. The document was supplied 14 days prior to the 14th.

PN39

MR RIGNEY: Correct.

PN40

MR DARBY: 14th? Sorry, the first day.

PN41

MR RIGNEY: 30 June.

PN42

MR DARBY: 30 June.

PN43

THE COMMISSIONER: The agreement was not made until 15 July?

PN44

MR DARBY: That is correct.

PN45

THE COMMISSIONER: Thank you.

PN46

MR DARBY: I might also state that the agreement was also made available on the lunch room wall, just for ready access if someone didn't receive it. So on that basis, Commissioner, and on the basis that the union must fall within 7 days by 17 August - their document, I would ask the Commission to certify that agreement from today's date.

PN47

THE COMMISSIONER: Well, what I want is an original signed copy of the agreement from the union for my file.

PN48

MR DARBY: Yes.

PN49

THE COMMISSIONER: Yes. Can I just ask you, the agreement is to apply to a distinct part of a single business. Is that a geographical or operational part?

PN50

MR DARBY: Both, operational and geographical.

PN51

THE COMMISSIONER: Both. Could you explain that to me?

PN52

MR DARBY: It is a bit difficult - the operational part of the business is the call centre of ADT Security. It monitors incoming and outgoing calls. It is geographical because it is only binding on Rydalmere which is a New South Wales operation of our business. But I might say, Commissioner, we do not have another call centre operating in Australia, full stop.

PN53

THE COMMISSIONER: If you did, then that call centre would have its own agreement?

PN54

MR DARBY: It would. Certainly.

PN55

THE COMMISSIONER: Yes. All right. The award for the purpose of the no disadvantage test?

PN56

MR DARBY: Is the Security Award New South Wales.

PN57

THE COMMISSIONER: So it is the State New South Wales award, not the Federal Award.

PN58

MR DARBY: Yes. it is the close - well, the Federal Award I believe Commissioner, is just going through the throws of - that is the call centre award is in the throws of coming out, I thought.

PN59

THE COMMISSIONER: No. You are relying upon the security of New South Wales?

PN60

MR DARBY: Yes.

PN61

THE COMMISSIONER: So your organisation is not bound by the Federal Award?

PN62

MR DARBY: That is correct.

PN63

THE COMMISSIONER: Yes. All right, that is your submission?

PN64

MR DARBY: That is our submission.

PN65

THE COMMISSIONER: Of course, your submission is, on balance there is no disadvantage?

PN66

MR DARBY: I raised that in the first issue.

PN67

THE COMMISSIONER: Yes. That is an application by Tyco Australia and the LHMU for certification of the agreement made pursuant to section 170LJ of the Act. The agreement is to be known as the ADT Customer Call Centre Rydalmere Enterprise Agreement 2004-2006. On the basis of the material of the filed and the submissions made by Mr Darby this morning, I am satisfied that the statutory appliance of certification have been met. The application is granted with effect from today's date and that determination of the Commission, is on the basis by close of business 17 August 2004, the Commission receives from the LHMU an original signed agreement in accordance with the rules of the Commission.

PN68

I have made it plain on transcript to Mr Darby that if I do not receive that material by close of business 17 August I am not inclined to waive the requirements of the rules, and on that basis certification will be refused. If there is nothing further? Thank you, Mr Darby.

ADJOURNED INDEFINITELY [11.54am]