AG2003/10397, Transcript of Proceedings [2004] AIRCTrans 388 (28 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 8838

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

AG2003/10397

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
for certification of Frankipile Australia
New South Wales Workshop Agreement 2003

SYDNEY

10.47 AM, MONDAY, 19 JANUARY 2004

PN1

HIS HONOUR: This is a matter AG10397 of 2003. It is an application lodged on 9 December 2003 under section 170LK of the Act seeking the certification of an agreement to be known as the Frankipile Australia New South Wales Workshop Agreement 2003. Could I have appearances please?

PN2

MR B. POTOCKI: I appear for the Master Builders Association of New South Wales, representing the member company who is Frankipile Australia Pty Limited. With me this morning, your Honour, is MR BUSKELL from the company and MR LANGENBERG, an employee from the company.

PN3

HIS HONOUR: Yes, thank you, Mr Potocki. I note that the agreement is made between Frankipile and its employees, some six of whom are referred to in the statutory declaration that's been signed by Mr Buskell and I can't read the signature of the employee representative but that may be you, Mr Langenberg, is it? Did you sign the agreement on behalf of the - - -

PN4

MR POTOCKI: No, he did not, your Honour. Mr Jenkins did.

PN5

HIS HONOUR: So Jenkins' signature I can read, yes. I note that the application and scope of agreement clause states in 4(1):

PN6

The agreement is made between Frankipile and the employees.

PN7

4(2) states:

PN8

This agreement shall apply throughout Australia to employees as defined.

PN9

Then clause 3 defines employees as:

PN10

New South Wales workshop employees of Frankipile Australia Pty Limited.

PN11

It is a pretty convoluted way of defining what is the single business to which the agreement is to apply. I take it there is only one workshop, Mr Potocki?

PN12

MR POTOCKI: Yes, your Honour. This agreement applies to the workshop in New South Wales. The reference to Australia-wide refers to, if these employees travel to another location, that is in another state.

PN13

HIS HONOUR: Yes. Well, I note at least for future purposes the application of the agreement should be much more specifically defined to identify what is the single business in which the employment is to occur. What needs to be guarded against is the possibility that negotiations have being conducted with seven employees at New South Wales and that Frankipile then starts to operate all over the country on the basis of conditions that have been negotiated with people who have never been part of it but I'll treat what you have said as binding. The agreement applies unequivocally to the New South Wales workshop employees as part of a single business of Frankipile and it operates in relation to those employees throughout Australia.

PN14

Frankipile is a constitutional corporation engaged in the business of equipment repairs and maintenance. The agreement was approved on 22 September. It was not lodged until 9 December. It is 57 days out of time. There will be a need for an application for an extension of time. There are six employees engaged at the time. How many are currently engaged?

PN15

MR POTOCKI: Still six, your Honour.

PN16

HIS HONOUR: There's still six. The questions that I need satisfaction on are extension of time and the section 170LK(4) notice. Do you have a copy of that with you, the notice of intention to make the agreement?

PN17

MR POTOCKI: Yes, I do. I thought that was filed. Is that the notice to the employee?

PN18

HIS HONOUR: It may have been. If it is, I've missed it though. Is it appended to the statutory declaration? No. I don't think so.

PN19

MR POTOCKI: Is that the notice you are referring to your Honour?

PN20

HIS HONOUR: Yes.

PN21

MR POTOCKI: Yes.

PN22

HIS HONOUR: I'll mark as - that can be MBA1. This is a notice given on 4 September. Yes I accept that as in compliance with section 170LK(4) and could I have an application for extension of time?

EXHIBIT #MBA1 NOTICE GIVEN

PN23

MR POTOCKI: Yes, your Honour. We seek that the Commission use its discretion under 111(1)(r) of the Workplace Relations Act. The issue here, your Honour, is that by the time the statutory declarations were prepared it was some period of time after the actual vote had occurred and due to other problems that occurred in locating management, it was also difficult to get signatures and unfortunately after they were received, completed and witnessed, they languished someone in the MBA premises and it was discovered that they hadn't been lodged and of course they were then lodged in December, now the aspect of our application is that there has been no change in the composition of the work force, that is, the number or the employees themselves.

PN24

There has been no change in the Enterprise Agreement during that period of time, so we seek that the Commission uses discretion if it pleases.

PN25

HIS HONOUR: Yes I'm satisfied I should exercise the discretion. I note that the wage rates provided under clause 8 are not time sensitive, referable to the certification of the agreement they apply respectively from 1 March 2004 and from 1 July 2003 so no prejudice to the employees perhaps at all, or at most beyond delaying the date from which payment is made has occurred by the lateness in the application being lodged. Otherwise I'm satisfied that the agreement is made in conformity with the requirement in the Act and Rules. The basis of that satisfaction is to be found in a check list compiled by me and completed and signed by me following my perusal of the proposed agreement.

PN26

The check list is retained as part of the file and is a component of the decision in the matter. I note that there is no empowerment for purposes of section 170LW in the relevant clause of the agreement covering dispute settlement procedures. I certify as agreement 831177 in print 942110, the agreement as proposed which has been signed and the certificate has been sealed. A copy of that certificate will be provided to the representatives in attendance prior to the calling of the next matter. That must include Mr Langenberg. The agreement comes into force from today and remains in force until 31 October 2005.

ADJOURNED INDEFINITELY [10.56am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MBA1 NOTICE GIVEN PN23