AG2004/7654, Transcript of Proceedings [2004] AIRCTrans 4214 (29 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 2375
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2004/7654

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Transport Workers Union of Australia
and Another for certification of the Transitplus
Agreement 2004

ADELAIDE

2.10 PM, WEDNESDAY, 20 OCTOBER 2004

PN1

MR G.J. SLATER: I appear on behalf of Business SA. With me, sir, I will introduce again a friend of the Commission, MR M. DUNLOP, the General Manager.

PN2

MR I. GALLACHER: I appear for the Transport Workers Union.

PN3

THE COMMISSIONER: Thank you. Mr Slater.

PN4

MR SLATER: Sir, my friend was going to lead off. It is his application.

PN5

THE COMMISSIONER: Mr Gallacher.

PN6

MR GALLACHER: Commissioner, before the Commission today is an agreement signed by Mr Mark Dunlop, general manager for the company, Mr John Allen, the Federal secretary and Mr Alex Gallacher the branch secretary of the Transport Workers Union, which has been lodged with the Commission under division 2 section 170LJ of the Australian Workplace Relations Act 1996. The Transport Workers Union is the organisation legally entitled to represent the interests of the employees covered by this agreement. The Transport Workers Passenger Vehicles Award 2002 is the award which underpins this agreement.

PN7

The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declarations signed by Mr John Allen and Mr Mark Dunlop. The agreement does not, in relation to their terms and conditions of employment, disadvantage the employees who are covered by the agreement. The agreement at clause 8 includes procedures for preventing and settling disputes between the parties and in particular allows for referral to the AIRC for settlement at clause 8.5.

PN8

The agreement applies only to part of a single business. Employees covered by this agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote was taken on 24 September 2004, of which a majority voted in favour of this agreement. The result of that ballot was 55 for, 5 against. The total number of employees covered by the agreement is 69. In respect to section 170LT(7) of the Act, there are relevant employees to be considered. There are 8 women, 29 part-time employees, 2 casual employees.

PN9

Pursuant to Part VIB division 4, section 170LT of the Act, we seek the Commission to certify an agreement referred to as the Transitplus Agreement 2004, operative from today's date and expiring on 30 June 2006. If the Commission pleases.

PN10

THE COMMISSIONER: Yes, I have got some questions, Mr Gallacher, but I will come to those in a moment. Perhaps I will hear from Mr Slater.

PN11

MR SLATER: Thank you, sir. Sir, I endorse the comments of my friend. The agreement has been a long time coming in the negotiation phase. We were just saying before the commencement of these proceedings that we did start negotiations September of 2003, so it has been a good 12 months. You would be aware of the 127 application earlier this year which has really brought the parties together and I think put together a fairly good document in respect of those negotiations.

PN12

Sir, this is the second agreement for the company and the union in the last 4 or 5 years. Certainly my friend has alluded to the Federal Award, the Transport Workers Passenger Vehicles Award 2002 underpins this agreement. The important thing I suppose at this stage, it certainly underpins the enterprise culture of Transitplus, particularly the sites at Mount Barker and Sterling. There is an overall thrust of safety and providing efficient and effective transport and bus operations for the travelling public of South Australia.

PN13

That has certainly inbuilt in this particular document, there is a fairly good emphasis on health and safety. Sir, the agreement itself was voted up on 24 September 2004, as my friend alluded to. Fairly significantly, in terms of favour of the agreement, 55 yes votes and 5 no, and no informal votes. So where it was over the years in terms of ballots and everything else, that is a fairly significant, good ballot in favour of the agreement.

PN14

Sir, it is our recommendations that the agreement be certified today in respect to its operational date being today's date of hearing. The agreement will run for about 18 months and expire on 30 June 2006. I have nothing further to add, sir, other than I did allude to discussions with the company and Mr Gallacher yesterday in respect to some questions raised in the Commission and I would seek leave at this time, sir, to amend our application slightly by producing a new page 21, with effectively clause 41.2 deleted from that page.

PN15

THE COMMISSIONER: Now, on what basis would you do that though, Mr Slater?

PN16

MR SLATER: On the basis that it may offend the previous High Court decision, the Electrolux decision.

PN17

THE COMMISSIONER: But the issue is surely what agreement went to the workers, what agreement did they vote on?

PN18

MR SLATER: Well, this is the advice I got from your associate yesterday, that there were some questions raised into the legality of the document.

PN19

THE COMMISSIONER: Yes, but what I am saying is that there was a document that was voted on by the employees and that document included clause 41 and actually there is another clause too. Can I just advise the parties, clause 40 as well, the noticeboard clause, I have some doubts about that as well. If I could just explain this. Normally a simple noticeboard clause wouldn't have any problems, of course, but it does specify in the terms there that it is a union noticeboard and so far that might be all right:

PN20

...will be provided at the company's depots for the purpose of posting of notices and other forms of correspondence. Such documents must be authorised by accredited union officials or depot delegates.

PN21

I think it is arguable that that clause, because it does not qualify the terms "notices and other forms of correspondence" in any way, it might simply be purely union notices and other forms of correspondence, or it might be notices and other forms of correspondence that are not in any way related to the employment relationship. And because of that, I suspect that clause 40 itself, the way it is currently drafted, may offend the Electrolux principles.

PN22

I have to say, I think it is borderline but I have got to let you know about that, and the other one is 41(2). Of course as I did mention to you, I think there is a problem with 41(2) the way I read the Electrolux decision and the issue then of course, Mr Slater, is simply this. It is not just a case of saying: well, look, sorry about page 21 of the agreement containing those clauses, here is another page and just approve that. I mean, I van only approve what the employees voted on.

PN23

MR SLATER: Well, it is not that simple from our perspective because we had to reach agreement yesterday between the parties before we came here today of an alternative method of dealing with that issue. And we are going to informally maintain the status quo in respect of 41(2), albeit it is not in the agreement. So the provisions of that particular document, albeit are silent in the agreement, will be maintained. We need to do that for harmonious industrial relations.

PN24

Because it was in the first agreement, there's an issue about this in the second agreement and to just totally disregard it and say: that is not going to apply now, will cause further disputation. That is not the intention of the Commission's decision or the High Court's decision in Electrolux, for it to cause further disputation. And in respect of clause 40, well, I think, you know the noticeboard itself relates to health and safety matters and relates to company correspondence. So it is just not purely a union notice board and again it has been a situation that has been in place for nearly 5 years now. And again, I know what the Electrolux decision says but we are not going to circumvent what has been in place.

PN25

THE COMMISSIONER: Can I just perhaps go off the record for the time being?

OFF THE RECORD

PN26

THE COMMISSIONER: Can I indicate that there have been discussions off the record about the agreement. The Commission has expressed concerns about clause 41.2 of the agreement which relates to union deductions from pay, and I have expressed concerns about that in regard to the Electrolux decision of the High Court, that we have talked with the parties about the implications of that decision for that particular clause. I have also expressed some concerns in regard to clause 40, which is the noticeboard provision. I have indicated to the parties that as the agreement stands at the moment, it is my view that I am unable to approve the agreement as it stands.

PN27

It has been agreed that we will adjourn these present proceedings, that the parties will give consideration to putting a new agreement with the necessary amendments to those clauses that I have mentioned, the new agreement to the employees for another ballot, show of hands or approval and that that application will come before the Commission in due course. If that does happen, then this current file would be withdrawn at that particular point and closed. But that is up to the parties to determine in any further discussions they have. I think for the time being, unless there is anything further for the record from either of the parties - - -

PN28

MR SLATER: No, sir, thank you for your advice.

PN29

THE COMMISSIONER: - - - then I think we will adjourn the proceedings for the time being.

ADJOURNED INDEFINITELY [2.40pm]