AG2004/1231, Transcript of Proceedings [2004] AIRCTrans 342 (23 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 5860

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2004/1231

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of
the Act by The Australian Workers' Union
and Another for certification of the
Halliburton Australia Pty Ltd Bass Strait
Offshore Cementing Services Agreement 2003

MELBOURNE

3.00 PM, THURSDAY, 15 JANUARY 2004

PN1

MS S. McDONALD: I appear on behalf of Halliburton Australia Pty Ltd.

PN2

MR C. WINTER: I appear on behalf of the Australian Workers' Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Winter. What do you say about the - - -

PN4

MR WINTER: Thank you, your Honour. This is an agreement under section 170LJ of the Act between Australian Workers' Union and Halliburton Australia Pty Ltd to cover its offshore cementing services. The agreement before you, if I could deal with the first issue, was lodged slightly out of time. You will notice on the statutory declaration the vote took place I think on 11 December, but the actual lodgment was outside the 21 day time period. Now, I would ask you to use your discretion in that regard. It was clearly administrative issues in regard to lodging it. Statutory declarations had to be signed and the person - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. It is not that far outside. It is five days I think, but - - -

PN6

MR WINTER: That is right, and the agreement itself only covers five individuals.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MR WINTER: And there has been no change whatsoever.

PN9

THE SENIOR DEPUTY PRESIDENT: No.

PN10

MR WINTER: And I would ask you to use your discretion and - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. I will extend the time.

PN12

MR WINTER: So as the agreement only covers the five individuals, four of those individuals are in fact involved in the negotiation, so everyone is quite aware of what the agreement contains. The agreement does contain a period of operation. It is to run for 36 months from 1 August 2003, that is from today's date if it is certified. It does contain a disputes settlement procedure. It clearly does pass the no disadvantage test. The award used in that regard is the AWU-FIME Halliburton Australia Award 1994. Unless you have any questions I would rely on the statutory declaration that was forwarded with the agreement and seek certification. I have gone through the agreement with Ms Angus who was involved in this negotiation. She is not working today and I couldn't see anything that would prevent it.

PN13

THE SENIOR DEPUTY PRESIDENT: Is Ms Angus still with the AWU?

PN14

MR WINTER: Yes. She works one day - she is doing law at the moment, so she works one day a - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, I thought she was going up to - - -

PN16

MR WINTER: One day a week, she works Fridays. So I couldn't see anything within the agreement that would prevent it being - not being certified and therefore seek certification.

PN17

THE SENIOR DEPUTY PRESIDENT: I have just got a couple of matters.

PN18

MR WINTER: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: The first page has got "without prejudice".

PN20

MR WINTER: Yes. That clearly should be removed.

PN21

THE SENIOR DEPUTY PRESIDENT: At the top of the page. Do you think we could get a replacement page without that on it?

PN22

MR WINTER: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: Because I find it a bit difficult certifying an agreement that says "without prejudice".

PN24

MR WINTER: Yes, I will get a replacement page for that. No problem.

PN25

THE SENIOR DEPUTY PRESIDENT: All right. The other thing, or one of the other things is on the second page, in paragraph or clause 1.2(c) the award referred to there is the AWU-FIME Halliburton Australia Pty Ltd Award 1994 as at 1 July 1999.

PN26

MR WINTER: Yes.

PN27

THE SENIOR DEPUTY PRESIDENT: That award was simplified by the late Honourable Senior Deputy President Polites on 27 June 2000, and the award as simplified was The Australian Workers' Union Halliburton Australia Award 2000. I am just wondering does that in fact mean the 1994 award or - - -

PN28

MR WINTER: Yes. It is a pre-simplified award that would apply.

PN29

THE SENIOR DEPUTY PRESIDENT: So is that the award though for the purpose - - -

PN30

MR WINTER: The award for the no disadvantage test used was the recent award, the simplified - - -

PN31

THE SENIOR DEPUTY PRESIDENT: The 2000 award?

PN32

MR WINTER: Correct.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. Right. I was going to say it wouldn't - - -

PN34

MR WINTER: But the award that would apply in regard to the agreement - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MR WINTER: - - - where the matters fall silent is the pre-simplified award.

PN37

THE SENIOR DEPUTY PRESIDENT: All right, and I take it the commencement date as far as the operation of the agreement is concerned being 1 August 2003 is because of increases that occurred some time shortly thereafter, did they?

PN38

MR WINTER: Correct. The agreement was negotiated - even though it only covers five people I think there were some lengthy negotiations in putting this document together.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I see that the first page has got 29 August 2003 on it, and I take it that was when it was being put to the employees or - - -

PN40

MR WINTER: It was - the four employees involved in negotiations.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR WINTER: Four out of the five, and there was numerous drafts put together and then it was finalised and forwarded to a mass - or a meeting of the five on 11 December.

PN43

THE SENIOR DEPUTY PRESIDENT: All right. When could you get me a replacement page for the first page?

PN44

MR WINTER: I should be able to get it within 24 hours.

PN45

THE SENIOR DEPUTY PRESIDENT: Right.

PN46

MR WINTER: It is just a matter of getting it up on the computer.

PN47

THE SENIOR DEPUTY PRESIDENT: Right.

PN48

MR WINTER: I am pretty sure - I think Ms Angus produced this or - - -

PN49

MS McDONALD: I am not sure, to be honest, because - yes.

PN50

MR WINTER: I should be able to get - Ms Angus will be available tomorrow so I should be able to get it tomorrow.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Okay. Thank you. Yes, Ms McDonald. Did you want to say anything?

PN52

MS McDONALD: If the Commission pleases I only want to confirm that the nominal expiry date is 31 July 2006.

PN53

THE SENIOR DEPUTY PRESIDENT: The nominal expiry date is 31 July 2006, is it?

PN54

MS McDONALD: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes. Do you want to say anything else?

PN56

MS McDONALD: No. I support the submissions of the AWU and respectfully request that the agreement be certified from today's date.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, and you agree that the 1994 award is the applicable award so far as clause 1.2(c) is concerned?

PN58

MS McDONALD: Yes, we do.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes. All right, thank you.

PN60

MS McDONALD: Thank you.

PN61

THE SENIOR DEPUTY PRESIDENT: This is an application pursuant to Part VIB division 2 section 170LJ of the Workplace Relations Act to certify an agreement to be known as The Halliburton Australia Pty Ltd Bass Strait Offshore Cementing Services Agreement 2003. The application was made more than 21 days after the date on which the agreement was approved. I am satisfied that there was no change of consequence in the composition of the employees who approved the agreement in the period after the expiration of 21 days of making the application. Accordingly, pursuant to section 111(1)(r) of the Act I extend the time for making the application to 6 January 2004.

PN62

Having heard Mr C. Winter on behalf of the Australian Workers' Union and Ms F. McDonald on behalf of Halliburton Australia Pty Ltd, and having read the statutory declarations filed by Ms Ali Angus on behalf of the Australian Workers' Union, Mr Ralph Eckard Mankey on behalf of Halliburton Australia Pty Ltd, I am satisfied that the agreement filed relates to a constitutional corporation, namely Halliburton Australia Pty Ltd, ACN009000775. I am also satisfied that the Australian Workers' Union 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.

PN63

I am also satisfied that the agreement passes the no disadvantage test. The agreement is made in accordance with section 170LJ and a valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved the agreement. The explanation of the terms of the agreement was appropriate. The agreement includes procedures for preventing and settling disputes between the employer and the employees who will be subject to the agreement. The agreement specifies a date as the nominal expiry date which is not more than three years after the date on which the agreement will come into operation.

PN64

I am satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, the agreement will be certified with effect and in accordance with its terms from 15 January 2004, and will remain in force until 31 July 2006. Any other matters?

PN65

MR WINTER: No, your Honour.

PN66

MS McDONALD: No, thank you.

PN67

THE SENIOR DEPUTY PRESIDENT: I congratulate the parties on their outcome. Have a nice day.

ADJOURNED INDEFINITELY [3.08pm]