AG2004/8020, Transcript of Proceedings [2004] AIRCTrans 4620 (30 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
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 15128

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

AG2004/8020

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Donhad Pty Limited and Another for
certification of the Donhad Pty Limited
Newcastle, NSW Workplace Agreement 2004

SYDNEY

11.59 AM, FRIDAY, 19 NOVEMBER 2004

PN1

MS N. STREET: I appear for the Australian Industry Group on behalf of Donhad Pty Limited.

PN2

MR G. BEARD: I appear on behalf of the Australian Workers Union.

PN3

HER HONOUR: Yes, Ms Street?

PN4

MS STREET: Thank you, your Honour. Can I say firstly at the outset, your Honour, that the submissions today are based on instructions from the companies and do not necessarily reflect the views of Australian Industry Group. Your Honour, as you would be aware, this is an application made under division 2 of Part VIB of the Act for certification made in accordance with section 170LJ. The terms of the agreement were reached between the company and the AWU on behalf of employees covered by the Metal Engineering and Associated Industries Award 1998. Your Honour, the parties have prepared statutory declarations which we believe meet all the requirements of the Act and regulations and rules of the Commission.

PN5

We further submit that all the requirements of the Act have been met, that the agreement does not disadvantage the employees covered by it and that a valid majority of employees genuinely approved the agreement on 25 October 2004.

PN6

HER HONOUR: Can I just ask you a question about the no disadvantage test?

PN7

MS STREET: Yes, your Honour.

PN8

HER HONOUR: That is in 7.4 of the statutory declaration, have you got it? Page 9, is what I am looking at.

PN9

MS STREET: Yes, your Honour.

PN10

HER HONOUR: It says there that the junior employees are paid at the 35 per cent of the C13 not 36.8. It then says currently the company does not employ junior employees. My concern is that if there were juniors employed over the course of the agreement would they be disadvantaged or not having regard to the overall terms and conditions of the agreement?

PN11

MS STREET: It is our submission that they would not be disadvantaged as a whole considering that that clause we have admitted as a disadvantage but there are other factors in the agreement such as the additional hours of duty contained in clause 14 and the overall remuneration, although that may only apply to adult employees. We would submit that junior employees would not be disadvantaged if they were engaged under this agreement.

PN12

HER HONOUR: I see and that conclusion also applies with respect to maintenance staff receiving the tool allowance on the base rate?

PN13

MS STREET: Yes, that is right, your Honour.

PN14

HER HONOUR: Yes, good, thank you.

PN15

MS STREET: Your Honour, access to the agreement and an explanation of the terms of the agreement did occur in accordance with the Act. The agreement does contain a disputes clause at clause 35 and the period of the operation is set out in clause 4, where it is stated that the agreement will expire on 1 August 2006. Your Honour may have been aware that there is a clause 6 in the agreement relating to union membership?

PN16

HER HONOUR: Yes, I am aware of that.

PN17

MS STREET: Would your Honour like me to make submissions as to why we believe or the company believes that this agreement does conform to the requirements of section 170LI?

PN18

HER HONOUR: Yes, please.

PN19

MS STREET: Your Honour, as I stated, the Commissioner may have concerns about this clause. It is the company's submission that this is ultimately a decision for the Commission to make but we draw your Honour to what the company believes are the appropriate principles from the High Court's decision that have been followed by certain members of the Commission. Your Honour, in viewing this clause as a whole, the company submits that this clause pertains on the basis that it is an incidental to and ancillary to the employment relationship. As your Honour would be aware, this was a principle taken from the High Court's decision and applied by Vice President Ross in the Ballantyne decision at PR952656 and Deputy President McCarthy in the Pinjarra decision at PR952722.

PN20

Your Honour, on this basis the company submits that clause 6: Union Membership, is incidental to the pertaining matter of a disputes and settlement procedure outlined in clause 35 in the agreement. The company submits that recognising a union with the relevant constitutional coverage is ancillary to the operation of a disputes clause which states that the company would accept participation by the AWU in settlement discussions if such representation was requested by the employee. The company submits that in accordance with the freedom of association principles, the company would recognise the role of a union in settling an industrial dispute and believes that clause 6 merely facilitated the understanding and intended operation of its disputes clause.

PN21

Your Honour, the company also submits that clause 6, particularly paragraph 1, is not only incidental to the operation of its disputes procedure but aspirational in nature. The company believes that this clause merely affirms the freedom of association principles contained in the Act and does not create any additional rights for both union and non union members. Your Honour, this principle was adopted by Vice President Ross and Deputy President McCarthy in the decisions already mentioned. Those are our submissions, your Honour, in relation to that particular clause. Unless you have any other concerns we would seek that this agreement be certified today in the terms sought, if it pleases.

PN22

HER HONOUR: Yes, thank you. Mr Beard?

PN23

MR BEARD: Thank you, your Honour. On behalf of the Newcastle branch of the union we support and endorse the submission made by the Australian Industry Group in regard to certification of this matter. Again, we would rely on the statutory declaration signed by the secretary of the branch, Mr Kevin Maher, as being appropriate in regards to fulfilling the requirements of the Act. In regards to clause 6, again, we believe that those two subclauses of clause 6 are incidental in regards to the operation of the award. As Ms Street has explained, we believe that there are precedents in decisions from other members of the Commission in regards to these matters.

PN24

In regards to subclause (2), not just being incidental to the disputes clause but it does recognise that the union was part of the creation of the agreement itself and we believe obviously that that is something of substance and is necessary for insertion in the agreement. At this stage, as I say, we endorse certification of the agreement, if it please.

PN25

HER HONOUR: Thank you. As the parties are aware I need to be satisfied where an application is made pursuant to 170LI in that there is an agreement that pertains to the relationship between the employer and the employee. I have been addressed with respect to one provision that may not pertain, clause 6: Union Membership. I am satisfied on the submissions that have been made that the clause 1 and 2 are incidental or ancillary to matters that do pertain to the employee/employer relationship. If I am wrong on that I nevertheless hold the view that there is no rights or obligations emanating from the provision and as such, the clause is aspirational in its nature. On that basis I am prepared to conclude that I have a properly made application for certification of agreement before me.

PN26

On the basis of my reading of the statutory declarations in terms of the agreement proposed for certification and the submissions made in today's proceedings, I am satisfied that the statutory requirements governing the certification of division 2, 170LJ agreements have been met. The agreement will be certified, it will be known as the Donhad Pty Limited Newcastle, NSW Workplace Agreement 2004. The agreement will come into force from 19 November and shall remain in force until 1 August 2006. I will sign the certificate giving effect to the certification of the agreement. Thank you, very much for your submissions.

ADJOURNED INDEFINITELY [12.09pm]