AG2003/10682, Transcript of Proceedings [2004] AIRCTrans 338 (23 January 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 8800

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2003/10682

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia and
Another for certification of the Advantage
Petroleum Transport (Metropolitan) Agreement 2003

SYDNEY

2.33 PM, THURSDAY, 15 JANUARY 2004

PN1

THE COMMISSIONER: Could I take appearances please?

PN2

MR G. NIGHTINGALE: Commissioner, I am from the Transport Workers' Union of Australia, New South Wales Branch.

PN3

MR R.W. RIDDING: May it please the Commission, I appear as agent for the employer.

PN4

THE COMMISSIONER: Seeking leave to appear, Mr Ridding?

PN5

MR RIDDING: Yes.

PN6

THE COMMISSIONER: Do you have a view on that, Mr Nightingale?

PN7

MR NIGHTINGALE: I have no objection.

PN8

THE COMMISSIONER: Yes, leave is granted, Mr Ridding.

PN9

MR RIDDING: Thank you.

PN10

THE COMMISSIONER: Gentlemen, has it been decided who will address the application for me? Yes, thank you, Mr Nightingale, when you're ready.

PN11

MR NIGHTINGALE: This is an application under 170LJ of the Act. The Transport Workers' Union believes it meets all the requirements of the Act. Regulations and Rules of the Commission have been met in making this agreement. You should have a statutory declaration to that effect from John Alan for you in the Commission. It passes the no disadvantage test and it's been approved by the majority of the employees. The terms and conditions of the agreement were explained to all the employees and it also contains a dispute settlement clause in clause 13 of the agreement. It has a nominal expiry date of 31 March 2005 at clause 4 of the agreement.

PN12

This agreement is underpinned by the Transport Workers' Oil Distribution Award, 2001 and it has a couple of issues. I believe it was brought to the attention by the Commission of clause 3(1)(c), I believe.

PN13

THE COMMISSIONER: Well, 3C.

PN14

MR NIGHTINGALE: 3C and 5(1)(c), Commissioner. I have spoken to Mr Ridding. We have come to an agreement that 3C, there were some words missing. We have rectified that and we can present particular wording on that clause and 5(1)(c), we agree that it is basically a duplication of what was said in 3C, so we've omitted 5(1)(c) from the agreement.

PN15

THE COMMISSIONER: Well, I don't know that we can necessarily omit something from the agreement, Mr Nightingale. This is an agreement that has gone before employees. Let's just step back a little bit.

PN16

MR NIGHTINGALE: Certainly.

PN17

THE COMMISSIONER: Clause 3C is part of clause 3 which is scope application operations. Clause 3C states:

PN18

The provisions of this agreement shall prevail over the prescribed terms and conditions of the Transport Workers.

PN19

Then quite obviously there is something missing. There is a line missing, because then it goes on to say:

PN20

Regard the union shall not unreasonably withhold.

PN21

Do you have a replacement page?

PN22

MR NIGHTINGALE: I certainly have a replacement for that.

PN23

THE COMMISSIONER: Yes, could I have a look at that please, because I don't know really that we need to touch 5. 5 is a general clause and clause 5C simply says:

PN24

The terms of the agreement in this document shall be read in conjunction with ...(reads)... shall override the award.

PN25

MR NIGHTINGALE: I understand what the Commission is saying.

PN26

THE COMMISSIONER: Yes, I would be reticent. I believe that it is within power to amend a document. In regards to an agreement, I take the view that any amendment the parties seek in a hearing, it would have to be a very minor typographical amendment. If it was of any sort of substance or form, then my view would be that it would have to go back to employees again to approve.

PN27

So, therefore, I have no concern after I read your amendment to 3C. I think that possibly will not cause me any great concern, but I think I would have concern if I just whipped a paragraph out of an agreement, unless there's ambiguity. But just allow me a moment, gentlemen. So it's page 2 and I see now that at the top of page 2 the words that should be there prior to "regard", should be "Oil Distribution Award 2001 Federal and in this" and then it goes on, "regard the union shall", yes.

PN28

MR NIGHTINGALE: Certainly. The union's copy, that line was not omitted so it was obviously - that's where the concern was, Commissioner, that I'd read the document and I had that line included in our - so it's obviously through some form of electronic transfer that it was omitted.

PN29

THE COMMISSIONER: Yes, I plan to just go off the record for a moment, gentlemen. I'll just talk out a couple of issues, then we can return.

OFF THE RECORD [2.39pm]

RESUMED [2.53pm]

PN30

THE COMMISSIONER: Yes, I've been in conference with the parties. Due to the fact that when I looked at the replacement page the parties sought to put before me and clause 3C in the agreement and clause 5.1C, quite clearly there is, one could argue, a form of typographical error and possibly due to the fact of cutting and pasting and I've discussed this issue with the parties. It is quite clear to me and I think the parties don't dispute this, that clause 5.1C of the agreement which is found at page 4 has inadvertently been placed in the general section of the agreement.

PN31

It goes to the application of the award in relation to the agreement and quite logically that should sit in clause 3 which is scope application and operations. Then, on the other hand, what is quite obviously missing at clause 5.1B, which talks about efficiency, productivity and change, was attempted to be placed in clause 3C of the agreement and, of course, the missing words to that particular clause which the parties have handed up to me this morning, really goes to the fact that the Transport Workers' Union would not unreasonably withhold any consent in supporting structural change, flexibility at the enterprise level, which in my view and the parties say it is quite clearly it sits under the general provisions of the agreement.

PN32

We've discussed the parties providing to the Commission replacement pages which would be page 1 and 2 and page 3 and 4 and the parties would seek leave that they are allowed to amend the agreement, but of course not in any substantial manner, simply to rectify an error which could, in essence, lead to ambiguity between the parties during the life of this agreement. There's some commitments that I needed to get from the parties in regards to members and employees understanding of what the provisions of this agreement meant. I think, Mr Nightingale, you're prepared to advise the Commission in regards to your members' understanding of those particular provisions.

PN33

MR NIGHTINGALE: Yes, Commissioner, the TWU will seek the leave of the Commission to allow us to amend those pages on the basis of your explanation. But our members were fully aware of the agreement. At all times they had knowledge that it overrides the award and the award is the Transport Workers' Oil Distribution 2001 Award. Also the members understand that the agreement allows for the flexibility and structural changes within the life of the agreement and they fully understand that and it does not try to remove any of the provisions of the existing award.

PN34

On that basis, if we could amend pages 1, 2, 3 and 4, basically moving the context, and not removing any of the words, the general clause will be put into the 3C productivity clause and I think our members would fully understand and endorse them.

PN35

THE COMMISSIONER: Yes, and of course your members were fully aware that the unions have made a commitment that they wouldn't unreasonably withhold any consent and supporting any change envisaged by clause 5 of the agreement, Mr Nightingale?

PN36

MR NIGHTINGALE: No, our members would not unreasonably withhold any consent to change any of the productivity.

PN37

THE COMMISSIONER: And that's their understanding?

PN38

MR NIGHTINGALE: And that's the understanding now undoubtedly.

PN39

THE COMMISSIONER: Yes, Mr Ridding, just on that point?

PN40

MR RIDDING: Yes, my instructions are that the copies of the agreement containing the wording were made available to employees. Meetings were held with management. The document was fully discussed and despite the fact that as the Commission rightly points out, certain clauses were inappropriately placed within the general structure of the document, nevertheless, the understanding of those clauses, as I am informed, were quite well understood in fact by the employees and we would undertake and seek leave to have those pages redone, putting the appropriate clauses with the appropriate sections and have that forwarded to the Commission within, probably, 24 hours.

PN41

THE COMMISSIONER: No later than Monday, 19 January, gentlemen, but if you can do it earlier than that, that's fine.

PN42

MR RIDDING: I should imagine it will be done tomorrow.

PN43

THE COMMISSIONER: Yes, well gentlemen before I hear the remainder of your submissions, on that particular point that we've discussed, having considered what's been put to me and even on the plain reading of the document and the headings under which those particular clauses fall, I think it's appropriate that I do exercise my discretion to allow the amendment of those particular clauses. I'm quite satisfied that they're not substantial amendments to an agreement which employees have considered and voted upon. It's quite logical to me that there has simply been an error and I don't think that the employees have misunderstood the concept and philosophy behind those particular clauses.

PN44

If there's nothing more on that point, I'll allow the amendment to the pages by no later than Monday the 19th. I don't know that I've heard any other submissions, did I?

PN45

MR NIGHTINGALE: Yes, I wanted to put one more thing to the Commission, if you don't mind.

PN46

THE COMMISSIONER: Thank you, Mr Nightingale.

PN47

MR NIGHTINGALE: Commissioner, as we understood the submission that was underpinned by the Transport Workers 2000 Award. There has been some history to this agreement and it has taken some two years to come to closure with this agreement since the taking over of J and B Petroleum by Advantage. The one thing that I'd like to put on transcript is that the company have agreed to pay, from 1 April 2003, the percentage increase once this document is ratified. So I just thought I'd need to put that on transcript, Commissioner. Bearing all that in mind and thank you for the assistance of the Commission here today, that the TWU is seeking the agreement to be certified on that basis.

PN48

THE COMMISSIONER: Yes, and Mr Nightingale, while you're on your feet, the agreement applies to a distinct part of a single business being the Parramatta Terminal which would be a distinct geographical part?

PN49

MR NIGHTINGALE: It is as a metropolitan operation, distinctive of their country arrangement, because they have a country enterprise agreement under the State Act and there is 14 employees working out of the Parramatta Terminal.

PN50

THE COMMISSIONER: Yes, so it's a distinct geographical part of a single business or possibly operational as well, I'm not too sure, maybe Mr Ridding might address that. It's 15 employees, Mr Nightingale?

PN51

MR NIGHTINGALE: Fourteen, I'm led to believe.

PN52

MR RIDDING: Fifteen at the last count, we understood.

PN53

MR NIGHTINGALE: Fifteen, Commissioner.

PN54

THE COMMISSIONER: All full time employees. Mr Nightingale, the TWU has at least one member employed in the business and you're entitled to represent their industrial interest.

PN55

MR NIGHTINGALE: We have them, and yes.

PN56

THE COMMISSIONER: Thank you, and the nominal expiry date is 31 March 2005. Yes, thank you Mr Nightingale. Mr Ridding?

PN57

MR RIDDING: Yes, Commissioner, the agreement applies to 15 employees who are based at the Parramatta Terminal and service the greater metropolitan area and hence we have entitled it The Metropolitan Agreement. A previous agreement was entitled Sydney Agreement, but this is a more appropriate description. However, they are identified as being the drivers who work from the Parramatta Terminal. As mentioned, the employees have been involved in consultation with the company as well as having the support of the union in the consultations regarding this agreement.

PN58

In good faith, we have recognised the requirement under the negotiations to provide an increase as from 1 April last year and we would seek to have that part endorsed, even though it does involve some retrospectivity. But in the interests of industrial harmony and the fulfilment of an undertaking, we are quite prepared to make that sort of adjustment. Is there anything else that I should address, Commissioner? We support the union's application in this matter and seek the certification of the agreement.

PN59

THE COMMISSIONER: All right, the agreement actually advises that the first three percent is operative from 1 April 2003. It's not for the Commission to - I don't know that retrospectivity necessarily in regards to a certified agreement - the agreement comes into operation once it's approved, but if the parties agree to a particular increase or something that occurs before certification, I really don't know that under the legislation I'm barred from certifying the agreement. I think what you're doing, gentlemen, is you're putting on record, and I'm sure you've ordered a copy of transcript, you're putting on record a commitment that has evidently been made between the parties which the members and employees are aware of.

PN60

So it remains for me just to consider the statutory requirements for certification and that's my concern and also the issue of the replacement pages which I have to be satisfied that this was not a substantial change to the concept and intent of the agreement as employees and members voted upon it, which, of course, I'm satisfied upon. Anything further at all, Mr Ridding?

PN61

MR RIDDING: No, I don't think so, Commissioner, thank you.

PN62

THE COMMISSIONER: Nothing at all, Mr Nightingale?

PN63

MR NIGHTINGALE: Nothing at all, Commissioner.

PN64

THE COMMISSIONER: All right, you have your order in for transcript, gentlemen, don't you?

PN65

MR NIGHTINGALE: We will.

PN66

THE COMMISSIONER: Yes, well thank you for that, gentlemen. This is an application by Advantage Petroleum Pty Limited trading as Shell Direct New South Wales and the Transport Workers' Union of Australia for certification that an agreement made pursuant to section 170LJ of the Act. The agreement is to be known as the Advantage Petroleum Transport Metropolitan Agreement 2003 and on the basis of the statutory declarations filed and the submissions made by Mr Nightingale and Mr Ridding this morning, I am satisfied that the statutory requirements for certification have been met in this regard.

PN67

The agreement satisfies the requirements of the no disadvantage test in that it does not result, on balance, in a reduction the overall terms and conditions of employment under the relevant award or laws. The agreement specifies a nominal expiry date of 31 March 2005 which is not more than three years after the agreement comes into operation. The application is granted with effect from today's date pending, of course, receipt of the material that the parties have been granted leave to file with me and formal certification will issue after the receipt of that material.

PN68

If there is nothing further, gentlemen. Thank you for your attendance. The Commission stands adjourned.

ADJOURNED INDEFINITELY [3.08pm]