AG2004/6678, Transcript of Proceedings [2004] AIRCTrans 4772 (7 December 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 15308

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

AG2004/6678

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by TDA Snow Engineering Pty Limited for certification
of the TDA Snow Engineering Pty Limited Certified
Agreement 2004

SYDNEY

12.00 PM, FRIDAY, 26 NOVEMBER 2004

Continued from 28.9.04

THESE PROCEEDINGS WERE CONDUCTED BY TELEPHONE CONFERENCE IN SYDNEY

PN88

THE SENIOR DEPUTY PRESIDENT: I'll take appearances please.

PN89

MS N. STREET: I appear from the Australian Industry Group on behalf of TDA Snow Engineering Pty Limited. Appearing by telephone, your Honour, is MR T. SNOW for the company and MR T. WALTON the employee representative.

PN90

HIS HONOUR: Good morning.

PN91

MR SNOW: Good morning.

PN92

MR WALTON: Good morning, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Street?

PN94

MS STREET: Your Honour, this is an application under division two of the Act for certification of an agreement in accordance with section 170LK. The terms of the agreement were reached between the company and the employees as described in clause four of the agreement. Your Honour, in initially filing this application the initial application was out of time in accordance with the Act by a period of about five days. However, your Honour, as you would be aware the agreement was subsequently re-voted on on 25 October 2004 and I believe the documents were faxed to you by our Newcastle office on 23 November 2004. I believe there may also be an issue with a time delay there. Your Honour, I have been instructed by the company that there has been no change in the workforce that would have impacted the vote of this agreement and that the reasons for these delays were truly administrative.

PN95

We would therefore seek for the Commission to exercise its discretion under section 111(1)(R) of the Act to extend the 21 day limit prescribed in 170LM(2).

PN96

THE SENIOR DEPUTY PRESIDENT: Well perhaps I should do that first then I'll have a valid application in front of me. There's no further submissions are there from Newcastle on this matter?

PN97

MR SNOW: No your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: No, well on the basis of the submissions made by Ms Street I am prepared to exercise my discretion under 111R of the Workplace Relations Act and extend the prescribed time for lodging the application, so we can proceed with the application.

PN99

MS STREET: Thank you your Honour. The notice of intention from the employer did inform employees of their right to request representation in relation to the agreement. Your Honour, the notice of intention was issued twice to employees. The latest notice was issued on 8 October 2004 and this was as a result of the agreement being amended at first instance. I do have the original, your Honour, I can give it to you.

PN100

THE SENIOR DEPUTY PRESIDENT: All right, that can be put on the file, thank you.

PN101

MS STREET: Your Honour, the company also prepared statutory declarations which we believe meet all the requirements of the Act and the rules of the Commission. I have also here original statutory declarations for the Commission's file.

PN102

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN103

MS STREET: We further submit, your Honour, that all the requirements of the Act have been met. The agreement, we submit, does not disadvantage the employees covered by it and that a valid majority did approve the agreement on 20 October 2004.

PN104

THE SENIOR DEPUTY PRESIDENT: Can I just ask about the no disadvantage test. The agreement doesn't contain the actual wages. I have a confidential copy of those wage rates which will be put in a sealed envelope on the file before it is closed. Can I be satisfied that the employees knew the wage rates that they were in receipt of and therefore understood what they were voting on with respect to the level of wages?

PN105

MS STREET: It is my understanding, your Honour, that the employees were aware of the rates and were shown the schedule.

PN106

THE SENIOR DEPUTY PRESIDENT: I see, good, thank you.

PN107

MS STREET: I do have a copy here for your Honour, I don't think that differs from - - -

PN108

THE SENIOR DEPUTY PRESIDENT: No, but mine's not a very good copy so it might be an idea. As I say it will be kept in confidence.

PN109

MS STREET: Your Honour, access to the agreement and an explanation of the terms of the agreement occurred in accordance with the requirements of section 170LK. Further, your Honour, the agreement contains a dispute clause at clause 11 and the period of operation of the agreement is set out in clause 5 where it is stated that the agreement will expire in two years from the certification date.

PN110

We therefore request that the Commission certify the agreement in the terms sought. If it pleases.

PN111

THE SENIOR DEPUTY PRESIDENT: I can be satisfied that there are no matters in the agreement that don't pertain to the employer/employee relationship?

PN112

MS STREET: Certainly your Honour that is my understanding your Honour.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, on my reading of it I have formed that view too. Very well then I am satisfied that I have a valid application before me for certification of an agreement to be known as the TDA Snow Engineering Pty Limited Certified Agreement 2004. On the basis of the submissions being put by Ms Street, and I should ask you Mr Walton, did you wish to say anything about the agreement?

PN114

MR WALTON: No the agreement is fine with the employees your Honour thank you.

PN115

THE SENIOR DEPUTY PRESIDENT: Good and you concur, you agree with what Ms Street said, do you?

PN116

MR WALTON: I do agree, yes, thank you, your Honour.

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you. Well on the basis of the submissions that have been put and on the basis of the statutory declarations that have been filed in accordance with the rules of the Commission and having regard to the terms of the proposed agreement I am satisfied that the statutory requirements governing the certification of division two 170LK agreements set out in the Workplace Relations Act have been met. The agreement will be certified. It was be known as the TDA Snow Engineering Pty Limited Certified Agreement 2004. It will come into force from 26 November 2004 and shall remain in force for a period of two years. I will sign the certificate giving effect to this agreement.

PN118

Thank you for your attendance and the Commission stands adjourned. Thank you.

PN119

MR WALTON: Thank you your Honour.

PN120

MS STREET: Thank you.

ADJOURNED INDEFINITELY [12.08pm]