AG2004/6081, Transcript of Proceedings [2004] AIRCTrans 3350 (26 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 798

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/6081

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia
and Another for certification of the
SCT Forrestfield (CUB Site), Perth
WA Agreement 2004

PERTH

2.52 PM, TUESDAY, 10 AUGUST 2004

PN1

MR N. HODGSON: I appear on behalf of the Transport Workers Union of Australia.

PN2

MR K. LEWIS: I appear on behalf of the Specialised Container Transport.

PN3

MR T. SCAGLIONE: I appear on behalf of Specialised Container Transport.

PN4

THE DEPUTY PRESIDENT: Mr Hodgson?

PN5

MR HODGSON: Thank you, Deputy President. The matter before us is an application to certify an agreement known as the SCT Forrestfield (CUB Site) Perth WA Agreement 2004. The parties to the agreement are the Transport Workers Union of Australia and Twentieth Superspace[sic] Nominees Pty Ltd. The statutory declarations have been filed by the parties in respect to the applications, I believe, and they indicate that the agreement relates to a constitutional corporation that I have just referred to. The union has at least one member employed in the part of the business to which the agreement relates. And we are also entitled to represent the interests of that member.

PN6

And we also say that the agreement passes the no disadvantage test as of today's date in the sense that the rates contained in the agreement are far in excess to those that are contained in the parent award which is the Transport Workers Award 1998. The other requirements of the Act, we believe, have been met. Unless there are any questions, we would seek that the agreement be certified. If it please the Commission.

PN7

THE DEPUTY PRESIDENT: Thank you, Mr Hodgson. Is the name of the employer Superpace or Superspace?

PN8

MR LEWIS: It is Superpace.

PN9

THE DEPUTY PRESIDENT: It is Superpace.

PN10

MR LEWIS: Pace. Yes.

PN11

THE DEPUTY PRESIDENT: Thank you. And from your submission, Mr Hodgson, the employer concerned is a part of a single business. Is that correct?

PN12

MR HODGSON: Yes, that is correct.

PN13

THE DEPUTY PRESIDENT: In relation to the commencement of the agreement, I wonder if you are able to confirm for me that despite the reference in clause 34, it is understood that the agreement comes into operation - - -

PN14

MR HODGSON: Yes.

PN15

THE DEPUTY PRESIDENT: - - - when it is certified by the Commission?

PN16

MR HODGSON: Yes, that is correct, your Honour. The agreement, as is prescribed in the Workplace Relations Act - I can't recall what section it is off the top of my head. But the agreement will commence on date of certification which hopefully will be today. But it will operate in accordance with its terms.

PN17

THE DEPUTY PRESIDENT: Yes. Thank you. Yes, I have no further questions.

PN18

MR HODGSON: Thank you, your Honour.

PN19

THE DEPUTY PRESIDENT: And I would ask Mr Lewis if he wished to make a submission in support of the certification of the agreement by the Commission.

PN20

MR LEWIS: Well, really only to concur with what the TWU have just put forward and request that the Commission certify the agreement as of today.

PN21

THE DEPUTY PRESIDENT: Thank you.

PN22

MR LEWIS: Thank you.

PN23

THE DEPUTY PRESIDENT: I understood that Mr Warchomij who swore the statutory declaration is unable to be present and you are attending the Commission in his stead. Is that correct?

PN24

MR LEWIS: That is correct, yes.

PN25

THE DEPUTY PRESIDENT: I wish to raise with you the concern of the Commission that some of the answers given by Mr Warchomij were not correct, which you are aware of, I understand, and have, indeed, given to the Commission in writing the correct answers.

PN26

MR LEWIS: That is correct, yes.

PN27

THE DEPUTY PRESIDENT: I wondered if you were aware and if so I would seek your assurance that you would pass on to Mr Warchomij of the importance in the future of ensuring that his answers to questions in statutory declarations are accurate. There is a very heavy penalty for wilful statements in a statutory declaration that are false. I am not suggesting that in this case that it was wilful but I think it is important that you be aware of that. And I wonder if you could give me your comments and assurances to that effect.

PN28

MR LEWIS: Yes, certainly I can assure the Commission that Mr Warchomij would not have wilfully made any false statements. From going through the questions, much of the statements were actually omissions from some of the answers rather than necessarily false statements as such. But, yes, I certainly understand the importance of statutory declarations being complete and accurate and fully correct and I will certainly pass on the Commission's comments today to Mr Warchomij for future reference.

PN29

THE DEPUTY PRESIDENT: Thank you. In particular, questions 6.1 which relates to the valid majority of employees and 7.3 which relates to a no reduction in the overall terms and conditions of employment, are two particularly important questions.

PN30

MR LEWIS: Yes.

PN31

THE DEPUTY PRESIDENT: You are aware of that, are you?

PN32

MR LEWIS: Yes, yes, most definitely.

PN33

THE DEPUTY PRESIDENT: Yes. Thank you. I accept your assurance that you will pass that on in the circumstances.

PN34

MR LEWIS: Okay. Thank you.

PN35

THE DEPUTY PRESIDENT: Mr Scaglione, I wonder if you would have any comments to make to the Commission in support of the certification of the agreement.

PN36

MR SCAGLIONE: No further comments.

PN37

THE DEPUTY PRESIDENT: Do you support the certification?

PN38

MR SCAGLIONE: Yes. Sorry. Yes.

PN39

THE DEPUTY PRESIDENT: Yes.

PN40

MR SCAGLIONE: I concur with Mr Lewis' comments.

PN41

THE DEPUTY PRESIDENT: Yes, thank you. And with those of Mr Hodgson?

PN42

MR SCAGLIONE: And that of Mr Hodgson.

PN43

THE DEPUTY PRESIDENT: Thank you. Mr Hodgson, I think the section you might have been referring to was 170LX.

PN44

MR HODGSON: Thank you for that, your Honour.

PN45

THE DEPUTY PRESIDENT: Is that correct?

PN46

MR HODGSON: I will note that.

PN47

THE DEPUTY PRESIDENT: To your knowledge, that is correct?

PN48

MR HODGSON: Yes. Thank you.

PN49

THE DEPUTY PRESIDENT: I now turn to the application which is pursuant to Part VIB, Division 2, section 170LJ of the Act to certify an agreement to be known as the SCT Forrestfield (CUB Site) Perth WA Agreement 2004. Having heard Mr N. Hodgson on behalf of the Transport Workers Union of Australia, the TWU, and Mr K. Lewis of behalf of Twentieth Superpace Nominees Pty Ltd, Specialised Container Transport, SCT, and having read the statutory declarations filed by Mr J. Allan on behalf of the TWU, and Mr I Warchomij on behalf of SCT, I am satisfied that the agreement filed relates to a constitutional corporation which is Twentieth Superpace Nominees Pty Ltd, ACN 005855327.

PN50

The TWU has at least one member employed in the part of the single business to which the agreement relates and is entitled to represent the industrial interests of the member. The agreement passes the no disadvantage test. Was made in accordance with section 170LJ. A valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved it. The explanation of the terms of the agreement 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 of not more than 3 years after the date on which the agreement would come into operation.

PN51

I am further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify it. Accordingly, it will be certified with effect from 10 August 2004 to operate in accordance with its terms from that date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [3.02pm]