AG2004/7706, Transcript of Proceedings [2004] AIRCTrans 4281 (4 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
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TRANSCRIPT OF PROCEEDINGS


O/N 14529
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

AG2004/7706

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Dentcrane Management Pty Ltd and Another
for certification of the Dentcrane Management
Pty Ltd Port Kembla and Westernport Enterprise
Agreement 2004

SYDNEY

9.24 AM, TUESDAY, 26 OCTOBER 2004

PN1

THE COMMISSIONER: Yes, could I have the appearances please?

PN2

MR W. GIDDINS: Commissioner, I appear for the Maritime Union of Australia who are the applicant in this proceeding.

PN3

MR M. O'LEARY: If it pleases the Commission, I appear for Dentcrane Management Pty Ltd in this matter.

PN4

THE COMMISSIONER: Yes, Mr Giddins?

PN5

MR O'LEARY: Commissioner, this is an application pursuant to Division 2 of Part VI of the Act to certify the agreement known as Dentcrane Management Pty Ltd Enterprise Agreement 2004 as it applies to Port Kembla and Westernport. The agreement applies to the provision of maintenance services to stevedoring equipment operated by Toll Stevedoring in providing stevedoring services to Bluescope Steel at Port Kembla Westernport. The MUA filed the application in this matter on 5 October 2004. The agreement was approved by a valid majority of employers on 28 May 2004. As such, the application has been filed out of time.

PN6

It appears that shortly after the agreement was approved by employees the parties had an industrial difference in respect to a collateral matter involving superannuation and that had some impact on several employees that may have been taking redundancy as a result of changes arising from the agreement. The parties mutually reached an acceptable position where they thought that it was in the interests of all that the agreement not proceed to certification subject to that industrial difference being resolved. I am pleased to indicate that that difference was solved in late September.

PN7

As a result, the MUA on behalf of both parties filed the application on 5 October. I can advise the Commission that in respect of the agreement it has been in no way altered or affected by the period of time between when the valid majority approved it and when the application was filed. Other than two employees who had indicated prior to the approval process that they sought to leave in redundant circumstances the make-up of the remaining workforce remains unchanged. The nature of the work they perform remains unchanged and the way work has performed hasn't altered. I have to say informally one of the circumstances that occurred was that there was to be a change of roster under the new agreement and in fact that roster was implemented by people departing which is some time in later May.

PN8

So, for all intents and purposes, the agreement would have to be implemented by the parties whilst we tried to resolve the other collateral issue. So there's no effect at all other than the mere delay of following the agreement. As I was saying, on the basis of what I said about the delay in filing the application, there is a discretion vested in the Commission to waive the time under section 111(1)(r) of the Act and we would ask that the Commission do so and rely on a decision of the Commission in TNT Logistics Sabco Warehouse Agreement 1996 which can be found at print P0442.

PN9

I am mindful in quoting that authority that Vice President Ross in that matter one of the elements that he considered that weighed in him exercising his discretion was that the delay was not so great and we accept that on this occasion the delay is great but the effect of the delay has not in any way unduly influenced or affected the interest of the employees of the company. So, given the objects of the Act and the objects of this part we would press that you do exercise your discretion and extend the time. The agreement is supported by two statutory declarations; one sworn by myself and one sworn by Mr David Latham who is the general manager of the company. We rely on those.

PN10

Additionally, we say that the agreement and the supporting documentation is consistent with the requirements of the Act, in particular section 170LI, 170LJ and 170LT. We've had a good look at the agreement and we've cognisant of the decision of Vice President Ross last Friday in the K.L. Ballantyne decision about these matters flowing from the Electrolux decision and handed down by the High Court. We think that the agreement that's before you this morning complies with section 170LI. Other than that we submit that the Act has been complied with. We press that you exercise your discretion and urge you to certify the agreement. The agreement in terms is to apply for two years from the date of certification. Other than any questions you may have, those are my submissions.

PN11

THE COMMISSIONER: Mr Giddins, on page 16 at the top there's a right given to delegates to address new employees about the benefits of union membership at the time that they enter employment. That doesn't seem to accord with Vice President Ross' tick. I think he specifically found difficulty with that; paragraph 170 of his decision. Paragraph 151 says in relation to delegates:

PN12

44.4: The union will be given an opportunity to recruit workers as members ...(reads)... as soon as practicable.

PN13

I would have thought that is not dissimilar to what is put here and then at paragraph 170 he says that it does not pertain.

PN14

MR GIDDINS: I accept that you've drawn to our attention one of the two issues that Vice President Ross indicated to the MUA and other parties would mean that the agreement as such would not meet the requirements of section 170LI. Could I just have one moment, Commissioner?

PN15

THE COMMISSIONER: Can I hear from Mr O'Leary in the meantime? Leaving that matter aside what do you say about the agreement, Mr O'Leary?

PN16

MR O'LEARY: If it pleases the Commission, Dentcrane Management support the union's submissions about the certification of the agreement and supports also its comments about the delay and we seek to prevail on the Commission to register the agreement in the terms set out notwithstanding the issue that's been raised now.

PN17

THE COMMISSIONER: Yes, thank you.

PN18

MR GIDDINS: I have to say, Commissioner, I'd like to make submissions that suggested that the provision that you've addressed us to dealt with paid leave or paid non-working time but considering the words of both the provision that you've referred us to and also the words that were contained in the Ballantyne Laverton Agreement they're very very similar and it's hard to distinguish them. I'm also mindful of Vice President Ross re-affirming the position of Atlas Steels in respect of whether an undertaking could be given or whether an amendment to the document could be made. It's truly unfortunate, I thought I'd looked at all of the provisions. There were about six provisions that I was concerned about in advance of us coming. In the circumstances I think there's little choice. I suspect you're not going to, other than for this matter, you're not going to be able to certify the agreement because it does not appear to be an agreement in compliance with section 170LI. In those circumstances could I suggest the following?

PN19

Having heard the submissions made this morning and cognisant that it appears that the provision that you've referred to, which is the singular dot point on the top of page 16, may be an offending provision, to use that acronym, I'm wondering whether you'd be prepared to grant us liberty to resubmit the agreement to the employees and get endorsement for the document with that singular dot point excised from the agreement and for us to advise you by way of a short affidavit of the circumstances that have occurred. Both parties would submit such an affidavit and then I was wondering whether you might be prepared to certify the agreement in chambers or by telephone conference given that the document you will receive which will need to be signed again by the parties will be one which we would then say does comply with section 170LI. Perhaps you need to think about that and we could speak off record but that was a way I thought we might be able to conclude this matter without having to inconvenience all of the parties and yourself with a further list of submissions in that regard.

PN20

THE COMMISSIONER: Mr Giddins, my concern is this, two things of course. The agreement only covers seven people and I guess there are some ongoing - there's an agreement one would think on foot irrespective of the formality of this document. Obviously the Act doesn't require - it requires the satisfaction of the employees who support the agreement. The Act has never said that it has to be done necessarily in a particular way. There just needs to be support. I'm happy to proceed down that path, good and well. However, I am not convinced that Vice President Ross is correct in respect of matters like leave to deal with union matters. He's taken the view that it's leave and, therefore, leave from an employment pertains to the relationship and I think is words were, it is unimportant the purposes for which the leave is taken.

PN21

To my mind that is a view which basically goes to almost the black letter without worrying about what it actually means and in areas such as award simplification I thought the Commission took the view that we favoured looking at the practical, what a provision actually means rather than how it is crafted. I haven't turned my mind completely to it but I am not sure that I am comfortable with the other matters but, more importantly, it may be that the decision of the Vice President is appealed.

PN22

Given the interest and the importance of the concepts raised or the issues raised I would have thought that if there is to be an appeal it will be dealt with speedily and that will certainly give us some guidance so I am not saying the Vice President is right or wrong, I just note that approach of his perhaps is not one that has always been taken, possibly not even by him. Anyway, I will leave that for others to explain.

PN23

Given that it's seven persons and that, presumably, there is on the job agreement between the parties, there is a shaking of the hands and I think everybody accepts that people adhere with what's agreed, I just caution whether or not it would be best to wait to see further developments rather than speeding something through and finding that we are back to where we are without an agreement that has any legal force so, Mr Giddins, it is into your hands or the hands of Ms O'Leary and yourself.

PN24

MR GIDDINS: I am only concerned, having raised the matter or the prospect of an appeal, it may be that when I find that this matter is not one that is dealt with but some others as well and we could find that at least a decision of last week is changed - - -

PN25

THE COMMISSIONER: I would hate you to go to the trouble of balloting the membership to pull out one paragraph and then finding that some weeks later you might have to do the same and if it's not areas of massive employment it might be that some caution before we step might be - - -

PN26

MR GIDDINS: Can I go back to the proposition that I advanced a little earlier. I accept what is foreshadowed as a distinct possibility. At this stage we would ask to stand the matter over, we don't proceed with the application. In the event that an appeal does proceed and there is greater clarity I go back to what I said earlier, would you be minded to accept the proposal that was put about the way of dealing with it to rectify whatever may be the problem or if there was no problem.

PN27

THE COMMISSIONER: Yes, providing that it is done in accordance with the Act. You will probably need to file further statutory declarations but the matter might be dealt with in Chambers if it is at all satisfactory, if it saves everyone the time but, anyway, perhaps we are a little way from there at this stage. So, yes, Mr Giddins.

PN28

MR GIDDINS: So, Commissioner, you will stand this matter over. If we subsequently advise you that we are withdrawing it we will do that by contacting your associate.

PN29

THE COMMISSIONER: Or you might consider that I am wrong and you just press the Commission to make the agreement voted on by the employees without that provision. As I said, I am not ruling on it but given that you need, basically, to basically re-ballot the employees, I am just cautioning that I am not sure that that's the only problem with it. Anyway, we will see. On that basis these proceedings are now adjourned.

ADJOURNED INDEFINITELY [9.41am]