AG2003/8557, Transcript of Proceedings [2004] AIRCTrans 375 (28 January 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 5885

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2003/8557

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Barry Bros Pty Ltd and Another for certification
of the Barry Bros Specialised Services, Queensland
and Northern New South Wales Enterprise Bargaining
Agreement 2003-2006

MELBOURNE

4.12 PM, MONDAY, 19 JANUARY 2004

PN1

MR J. DOUGLAS: I seek leave to appear for the applicant in this matter.

PN2

MR C. PHILLIPS: I appear for the Australian Workers Union.

PN3

THE VICE PRESIDENT: No objection to the application for leave to appear?

PN4

MR PHILLIPS: No objection, your Honour.

PN5

THE VICE PRESIDENT: Leave is granted. I note the application states it has been made under division 2 of part VIB. There is some confusion about whether it was filed within the 21 day time period. Do I understand what happened correctly, that the employer and the employees and the union went through the process leading up to the approval of the agreement, some sort of error took place. So they went through the process again and the statutory declarations, I think, refer to the first process time period and then when the matter was lodged, but in fact the agreement was approved by a valid majority on 8 December and the application was lodged on 23 December last year, so it was actually within the 21 day time period. Is that the - - -

PN6

MR DOUGLAS: I think even with - well, firstly, your Honour, your version of events is entirely correct. What occurred was that the process was followed, the documents were then - I then received instructions in relation to the matter. I noted that the agreement was executed by an organiser of the union who didn't have the authority to execute the agreement on behalf of the union and so the matter was resubmitted to the employees. I am then further instructed that a vote took place to approve the agreement on 8 December 2003, the documents were then lodged on 23 December. On my arithmetic I think that is one day out, your Honour, I think it is 15 days and - - -

PN7

THE VICE PRESIDENT: It is a 21 day time period.

PN8

MR DOUGLAS: Twenty-one days - - -

PN9

THE VICE PRESIDENT: Yes.

PN10

MR DOUGLAS: - - - so it is within time. The statutory declarations filed, if you refer to paragraph 6.2 of the statutory declaration, they refer to a date of 11 September 2003. That in fact was the date that the employees originally approved the agreement.

PN11

THE VICE PRESIDENT: So that should really be 8 December 2003.

PN12

MR DOUGLAS: That is correct, your Honour, yes.

PN13

THE VICE PRESIDENT: Yes, I see. Okay. And is the employer party to the agreement a constitutional corporation within the meaning of the Act?

PN14

MR DOUGLAS: It is, your Honour.

PN15

THE VICE PRESIDENT: I note that a written copy of the agreement has been submitted for certification, is it about matters pertaining to the employment relationship?

PN16

MR DOUGLAS: Yes, your Honour.

PN17

THE VICE PRESIDENT: And the agreement applies in respect of part of a single business, is that right?

PN18

MR DOUGLAS: Yes, your Honour.

PN19

THE VICE PRESIDENT: And how is that part of the business delineated?

PN20

MR DOUGLAS: It is a geographic part of the business, your Honour. My client operates throughout Australia and this agreement applies to that part of Australia, which is Queensland and northern New South Wales.

PN21

THE VICE PRESIDENT: And, Mr Phillips, does your organisation have at least one member employed in the part of the single business whose employment would be subject to the agreement?

PN22

MR PHILLIPS: As I understand, your Honour, that is the case, the AWU does have members employed by Barry Bros.

PN23

THE VICE PRESIDENT: And is your organisations entitled to represent the industrial interests of those members?

PN24

MR PHILLIPS: And I understand, through our eligibility rules, the AWU has coverage of these employees employed by Barry Bros.

PN25

THE VICE PRESIDENT: Mr Douglas, was a vote taken of the employees employed at the time whose employment would be subject to the agreement, about whether they approved the agreement?

PN26

MR DOUGLAS: Yes, your Honour.

PN27

THE VICE PRESIDENT: And did each employee employed at that time have an opportunity to cast a vote?

PN28

MR DOUGLAS: Yes, your Honour.

PN29

THE VICE PRESIDENT: And were a majority of the valid votes cast in favour of approving the agreement?

PN30

MR DOUGLAS: Yes, your Honour.

PN31

THE VICE PRESIDENT: Okay. Just in relation to the no disadvantage test, is your client bound by the Australian Workers Union Construction and Maintenance Award 2002?

PN32

MR DOUGLAS: No, it is not, your Honour, nor is it a party to it.

PN33

THE VICE PRESIDENT: So you seek a 170XF determination?

PN34

MR DOUGLAS: Yes, your Honour.

PN35

THE VICE PRESIDENT: And is the work performed by the employees who would be covered by this agreement similar to that - - -

PN36

MR DOUGLAS: Yes, your Honour, it is.

PN37

THE VICE PRESIDENT: - - - the work that is covered by the award?

PN38

MR DOUGLAS: Yes, your Honour, and in that regard I draw the Commission's attention to a similar agreement, unfortunately I don't have the reference number with me, but an agreement that covers the same work in Victoria also had - the Commission has determined this award for the purposes of the no disadvantage test.

PN39

THE VICE PRESIDENT: All right. You support the XF application, Mr Phillips?

PN40

MR PHILLIPS: Your Honour, my instructions are that our Queensland branch supports the certification of this agreement and we would suggest that we would support the application as sought by the company for a designated award.

PN41

THE VICE PRESIDENT: I grant the XF application, Mr Douglas, and the Australia Workers Union Construction and Maintenance Award 2002 will be the relevant award for the purpose of assessing the no disadvantage test. I note that there is a reduction in the casual loading in the agreement, vis-a-vis the award. It is said that that is offset. Would you like to elaborate on that issue?

PN42

MR DOUGLAS: Yes, your Honour. I - again, unfortunately, I don't have the award with me but the rates of pay in the agreement are significantly in excess of the rates of pay for similar work performed under the award, and in any event, the reduction in the casual loading is minimal. It is of - in the order of 1 or 2 per cent, compared - - -

PN43

THE VICE PRESIDENT: So is it the case that when you, for any given classification, if you apply the casual loading under the award with the award rate and you come up with a sum, and then you apply the casual loading under the agreement with the agreement rate, you are better of under the agreement?

PN44

MR DOUGLAS: That is precisely correct, your Honour.

PN45

THE VICE PRESIDENT: I note too there is a dispute settlement clause in clause 7 that provides for matters to be submitted to the Commission for resolution. Does that mean that if a matter was submitted to the Commission it is the intention of the parties that the Commission would deal with by means of conciliation and, where necessary, arbitration?

PN46

MR DOUGLAS: Yes, your Honour.

PN47

THE VICE PRESIDENT: I note the agreement specifies a nominal expiry date, being 30 June 2006. In relation to termination of employment, are any provisions of the agreement inconsistent with a provision of division 3 of part VIA, an order by the Commission under that division, or any injunction granted, or order made by a Court under that division?

PN48

MR DOUGLAS: No, your Honour.

PN49

THE VICE PRESIDENT: In relation to negotiating conduct, are there any matters under section 170LU, subsection 3, which would lead me to refuse to certify the agreement?

PN50

MR DOUGLAS: No, your Honour.

PN51

THE VICE PRESIDENT: Do any provisions of the agreement discriminate against and employee whose employment would be subject to it, because of, or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN52

MR DOUGLAS: No, your Honour.

PN53

THE VICE PRESIDENT: Does the agreement contain any objectionable provisions within the meaning of section 170LU, subsection 2A?

PN54

MR DOUGLAS: No, your Honour.

PN55

THE VICE PRESIDENT: Just bear with me for a moment, Mr Douglas. No, that is fine. That is all I had. Mr Phillips, do you agree with the answers that Mr Douglas has given to the questions I have put to him?

PN56

MR PHILLIPS: Your Honour, we would not dispute any of the answers that Mr Douglas has put to you with respect to the questions asked concerning the agreement.

PN57

THE VICE PRESIDENT: Well, on the basis of those answers and material filed - - -

PN58

MR DOUGLAS: Your Honour, just before you do - - -

PN59

THE VICE PRESIDENT: Yes.

PN60

MR DOUGLAS: - - - perhaps if I could hand up, in accordance with the rules of the Commission, the originals of the agreement, they were lodged electronically.

PN61

THE VICE PRESIDENT: Right. Thank you, Mr Douglas. Well, having regard to the answers to the questions put and the material filed in support of the application, I am satisfied that the application meets the relevant statutory test and I will issue a certificate certifying the agreement. Nothing further? I will adjourn.

ADJOURNED INDEFINITELY [4.20pm]