AG2004/8068, Transcript of Proceedings [2004] AIRCTrans 4481 (18 November 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

AG2004/8068

APPLICATION FOR CERTIFICATION OF GREENFIELDS AGREEMENT (DIVISION 2)

Application under Section 170LL of the Act by
Thiess Pty Ltd and Others for certification
of the Thiess Curragh North Certified Agreement
2004

BRISBANE

2.00 PM, MONDAY, 8 NOVEMBER 2004

PN1

MR M. CUTHBERTSON: Mark Cuthbertson on behalf of Thiess Pty Ltd.

PN2

MR R. BARKER: For and on behalf of the CFMEU Mining and Energy Division. And appearing with me MR T. CONROY and MS H. PEACE.

PN3

THE COMMISSIONER: Thank you, Mr Barker. Mr Cuthbertson?

PN4

MR CUTHBERTSON: Thank you, Commissioner. Commissioner, the application before you seeks the certification of a Section 170LL Greenfields Agreement entitled the Thiess Curragh North Certified Agreement 2004. Commissioner, there has been two statutory declarations which have been filed, one on behalf of the union, which has been executed by Mr Vickers. And also one on behalf of Thiess, which has been executed by myself.

PN5

For the purpose of the application I would seek to rely upon the affidavits as filed, and respectfully seek that the certified agreement be certified as from today's date with a nominal expiry date of three years from the date of certification. If the Commission pleases.

PN6

THE COMMISSIONER: Very well, thank you, Mr Cuthbertson. Mr Barker?

PN7

MR BARKER: Thank you, Commissioner, I concur with the submissions that have been made by Mr Cuthbertson on behalf of the employer. Statutory declarations have been filed in accordance with the Workplace Relations Act, and the agreement has been duly signed by the organisation. I would seek its certification.

PN8

THE COMMISSIONER: Very well, thank you. Mr Cuthbertson, can I hear from you, please, in relation to clauses 16 and 17 and 18? The employer's views about whether those matters pertain to the employer/employee relationship as discussed in the Electrolux decision.

PN9

MR CUTHBERTSON: Commissioner, whilst I haven't had the benefit of reading the full decision of the Electrolux decision, I understand there has been a subsequent decision in the Commission colloquially referred to as a Ballantyne decision.

PN10

THE COMMISSIONER: That is correct.

PN11

MR CUTHBERTSON: I have received, as most parties do, varying pieces of advice from varying organisations and law firms in relation to that, and there does seem to be a great deal of confusion, I guess, out there between the parties in relation to some of these matters. I guess what I can say, Commissioner, is that the parties have been discussing this document before the release of the Ballantyne and the most recent Electrolux decision.

PN12

Commissioner, if the Commission of the view that those particular provisions, I guess, cannot be included, then the parties would need to look at what passage we would entertain in relation to the agreement which has been struck in relation to clause 16, 17, 18, and 19. Commissioner, my instructions are that we obviously have reached agreement on those issues, and respectfully seek certification of the document with those clauses included.

PN13

THE COMMISSIONER: So it is the view of Thiess that the contents of clauses 16 and 17 and 18 are all matters that - in all respects are matters that pertain to the employer/employee relationship.

PN14

MR CUTHBERTSON: Insofar as they are currently drafted in this particular agreement, yes, Commissioner. I guess I wouldn't like to make any dispersions or generalised comments about particular clauses that may entertain or go further, in particular contractor clause, for example. I guess what I am trying to say is I don't want to be setting a precedent here in this Commission by saying, yes, Thiess is happy to have contractor clauses put through and certified in the Commission. What I am prepared to indicate is that we are comfortable in certifying, or having certified subject to the Commission's views, those provisions as currently drafted.

PN15

THE COMMISSIONER: But they can only be included in a certified agreement, as you know, if they are matters that pertain to the employer/employee relationship, so you are, by including them in this agreement, at least putting to the Commission that they are matters that pertain to the necessary relationship.

PN16

MR CUTHBERTSON: And on the basis that we have traditionally handed up documents with those particular provisions included, yes, we would agree with that. I guess I would be interested in the Commission's views in terms of any particular things that have arisen out of Ballantyne that the Commission may be concerned - I guess, is the Commission concerned about those particular clauses?

PN17

THE COMMISSIONER: No, I am concerned to hear what the employer's view about them are. If the employer's view is that they pertain to the relationship, then that is a relevant consideration. I mean, if you are satisfied that it pertains - - -

PN18

MR CUTHBERTSON: I am satisfied that they are incidental.

PN19

THE COMMISSIONER: Incidental to what?

PN20

MR CUTHBERTSON: To the employment relationship between the employee and the employer. And that the parties have reached agreement on those particular issues, which will affect the employees at that particular site once engaged.

PN21

THE COMMISSIONER: Very well, thank you. Mr Barker?

PN22

MR BARKER: Commissioner, it is correct to say that we have reached agreement with Thiess, and we reached agreement on the basis from the union's perspective that they are matters pertaining to the employment relationship between the employees of Thiess at Curragh North. And we say that no the basis - in terms of 16 that did say job security mattered, in terms of 17 and 18 it is a payment and a recognition of those employees covered by this agreement, and we say they are employment matters, directly. And on that basis we would ask the Commission to certify the agreement.

PN23

THE COMMISSIONER: Very well, thank you. Well, on the basis of the material that has been provided to the Commission, both in the statutory declarations and the submissions that have been made this afternoon, I am satisfied that the contents of this agreement meet the requirements of the Workplace Relations Act of 1996. I am also satisfied that the relevant rules of the Commission have been met. The agreement therefore will be certified. It will come into effect from today, and it will nominally expire on 7 November 2007. I adjourn the Commission.

ADJOURNED INDEFINITELY [2.10pm]