AG2004/1245, Transcript of Proceedings [2004] AIRCTrans 382 (28 January 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 5886
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2004/1245

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Boral Masonry Limited and Another for
certification of Boral Masonry Site Agreement -
Deer Park

MELBOURNE

4.33 PM, MONDAY, 19 JANUARY 2004

PN1

MR J. SNADEN: I seek leave to appear on behalf of the employer, Boral Masonry Limited.

PN2

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

PN3

THE VICE PRESIDENT: Do you have any objection to the application for leave to appear?

PN4

MR WINTER: No, your Honour.

PN5

THE VICE PRESIDENT: Which of you would like to answer questions relating to the relevant statutory tests? Looks like you are it.

PN6

MR SNADEN: I can, if you wish, your Honour.

PN7

THE VICE PRESIDENT: I note the application states it has been made under division 2 of part VIB, and it was filed within the 21 day time period. Is the employer party to the agreement a constitutional corporation within the meaning of the Act?

PN8

MR SNADEN: Yes, your Honour.

PN9

THE VICE PRESIDENT: I note that a written copy of the agreement has been filed for certification. Is the agreement about matters pertaining to the employment relationship?

PN10

MR SNADEN: It is, your Honour.

PN11

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

PN12

MR SNADEN: That is correct.

PN13

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

PN14

MR SNADEN: It is a geographically distinct part of the business at Deer Park operations.

PN15

THE VICE PRESIDENT: Right. Mr Winter, do you have at least one member - does your organisation have at least one member employed in the part of the business whose employment would be subject to the agreement?

PN16

MR WINTER: Yes, we do, your Honour.

PN17

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

PN18

MR WINTER: Yes, we are, your Honour.

PN19

THE VICE PRESIDENT: Okay, thank you. I note what is said about the consultation period, or process rather. 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?

PN20

MR WINTER: Yes, it was.

PN21

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

PN22

MR WINTER: Yes, they did.

PN23

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

PN24

MR WINTER: Yes, they were.

PN25

THE VICE PRESIDENT: Okay, thank you. The relevant award is Cement and Concrete Products Award 2000, is that right?

PN26

MR SNADEN: That is correct, your Honour.

PN27

THE VICE PRESIDENT: I don't think the question in paragraph 7.4 of the statutory declaration is answered inasmuch as that is:

PN28

Would certification of the agreement result in any reductions under any relevant award?

PN29

It is put that on balance there is no reduction in the overall position, but are there any reductions at all?

PN30

MR SNADEN: That has just come to my attention, your Honour. I believe that there are not. Mr Winter may have some additional comments.

PN31

THE VICE PRESIDENT: Mr Winter?

PN32

MR WINTER: I have also noticed that matter and I looked through the agreement and compared it to some provisions of the award. The only one that could be possibly seen as a reduction - and I don't believe it is - is in relation to roster arrangements. If you look at clause 19 the day shift is looking at commencing at 5.30 am where the normal start time, where the spread of hours may be 6 to 6 in the award, but again with the flexibility provisions of the award anyway that wouldn't have too much effect. But if you compare the other provisions, not only the wage increases but the long service leave provisions, the redundancy provisions, on balance they clearly outweigh those issues.

PN33

THE VICE PRESIDENT: All right, thank you. I note there is a dispute settlement clause at clause 13, and that a nominal expiry date is specified being 30 September 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?

PN34

MR SNADEN: No, your Honour.

PN35

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

PN36

MR SNADEN: No, your Honour.

PN37

THE VICE PRESIDENT: In relation to discrimination, do any provisions of the agreement discriminate against an 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?

PN38

MR SNADEN: No, your Honour.

PN39

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

PN40

MR SNADEN: No, sir.

PN41

THE VICE PRESIDENT: Mr Winter, do you agree with the answers that have been given to the questions that I have put?

PN42

MR WINTER: Yes, I do, your Honour.

PN43

THE VICE PRESIDENT: Okay. On the basis of those answers and the material filed in support of the application, I am satisfied that the agreement meets the relevant statutory tests and I will issue a certificate certifying the agreement. Thank you for your attendance.

ADJOURNED INDEFINITELY [4.39pm]