AG2004/1128, Transcript of Proceedings [2004] AIRCTrans 727 (25 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/1128

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by BGC (Australia) Pty Ltd for certification
of the BGC Transport Certified Agreement
2004

PERTH

3.58 PM, THURSDAY, 12 FEBRUARY 2004

PN1

THE DEPUTY PRESIDENT: Good afternoon. Your appearances, please?

PN2

MR J. UPHILL: Good afternoon, your Honour. I appear on behalf of the applicant employer and with me, Mr R. MELLOR, the general manager of the company.

PN3

MR D. WARD: I am on the committee for the drivers of BGC Transport.

PN4

MR MELLOR: I am the general manager of BGC Transport.

PN5

THE DEPUTY PRESIDENT: Please commence, Mr Uphill.

PN6

MR UPHILL: Your Honour, this is a proceeding to certify an agreement relating to BGC Transport. The agreement is pursuant to section 170LK of the legislation and it is the third certified agreement covering this company and the employees the subject of the agreement. The negotiations commenced in about October of last year and it is a fairly lengthy process involving a drivers committee and as part of that process, there were numerous meetings not only of the committee but also the committee with drivers getting instructions and providing update on the progress of negotiations.

PN7

It should be clear from the documentation that has been filed, your Honour, that the agreement is with a constitutional corporation and the agreement affects 58 employees who are based at either Hazelmere outside the metropolitan area and also some employees in Moora. The process leading to the development of the agreement was such that there was a letter given to employees on the 23rd of December indicating the company's wish to put in place a certified agreement. I have previously emailed through to your associate a copy of that letter, but I don't think it was on the company's letterhead or wasn't signed, so it might be appropriate at this stage if I hand up to you a copy of that on the company's letterhead and duly signed by the general manager.

PN8

THE DEPUTY PRESIDENT: Would you wish to make that an exhibit?

PN9

MR UPHILL: I think that is probably wise in the circumstances, your Honour.

EXHIBIT #1 LETTER GIVEN TO EMPLOYEES 23.12.03 ON COMPANY LETTERHEAD AND SIGNED BY GENERAL MANAGER

PN10

MR UPHILL: I should also mention as part of the process, employees had a copy of or access to the proposed certified agreement. Certainly documents were circulated to the drivers committee and drivers had access to that information if they needed to look at the detail of what was proposed to go into the certified agreement. The agreement was, I can indicate, approved by a valid majority of employees, so much so that the agreement was signed on 9 January of this year and it was filed a few days later on 13 January. I think it should be clear from each of those relevant dates that the process is such that the company and employees have complied with the time periods required by the legislation.

PN11

I can also indicate to you, your Honour, that the explanation of the terms of the agreement was, in our view, appropriate for the employees who are covered by the terms of the proposed agreement. The content and the meaning of the document was explained in detail to employees and that occurred via the drivers committee and also through numerous meetings that took place with employees. The other aspect that I need to cover is the content of the agreement. It should be clear that the agreement involves a dispute settling clause, which is clause 16. It also has a nominal expiry date and that is contained in clause 2 of the agreement which indicates that the agreement will be for a 3-year life.

PN12

Also, your Honour, the agreement passes the no disadvantage test and therefore we say that when you look at all of those preceding matters, the agreement does pass legislative requirements. We would consequently ask that the agreement be certified to apply in accordance with its terms and from today's date.

PN13

THE DEPUTY PRESIDENT: Thank you. And consistent with that, Mr Uphill, in your submission that the agreement passes the no disadvantage test, that is of today's date?

PN14

MR UPHILL: As of today's date, yes.

PN15

THE DEPUTY PRESIDENT: Thank you for that. I have no further questions for you, Mr Uphill. Mr Mellor, did you wish to speak in support of the certification of the agreement by the Commission?

PN16

MR MELLOR: Yes, we - - -

PN17

THE DEPUTY PRESIDENT: Any views that you would like to express, please so express them.

PN18

MR MELLOR: Well, only that you know, we've been through the due process, the driver committee, the drivers selected their own people for the committee. They had their own meetings away from our office and then they came back with their proposals and we came to this agreement that we have in front of you.

PN19

THE DEPUTY PRESIDENT: Thank you indeed, Mr Mellor. Mr Ward, your submission, please?

PN20

MR WARD: Yes, your Honour. We had many discussions with what we proposed of the company for our agreement, between a committee and the drivers and in conclusion to what we have now, is what we all agreed to and most - well, the majority of drivers are happy with it. Actually, it exceeded the majority that we have with the drivers and so we concluded with the company. Thank you.

PN21

THE DEPUTY PRESIDENT: Thank you for that submission, Mr Ward, that is helpful. I would like to thank the applicant for its assistance in answering all queries that have been raised by the Commission previously, concerning the history of the application. I now turn to the certification of the agreement, noting that it is an application pursuant to the Workplace Relations Act 1996, Part VIB, Division 2, Section 170LK of that Act. To certify an agreement to be known as the BGC Transport Certified Agreement 2004. Having heard Mr J. Uphill and Mr R. Mellor on behalf of BGC Australia Pty Limited, BGC and Mr D. Ward on behalf of the employees and having read the statutory declarations of Mr R. Mellor on behalf of BGC and Mr D. Ward on behalf of the employees, I am satisfied that the agreement filed relates to a constitutional corporation, BGC Australia Pty Limited, ACN 005736005.

PN22

The agreement does pass the no disadvantage test, was made in accordance with section 170LK and a valid majority of persons employed at the time, whose employment would be covered by the agreement, genuinely approved it. The explanation of the terms of the agreement was appropriate. It includes procedures for preventing and settling disputes between the employer and employees whose employment would be subject to the agreement and it specifies a nominal expiry date of not more than 3 years after the date on which the agreement would come into operation.

PN23

There are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Therefore it will be certified with effect from the 12th of February 2004 to operate in accordance with its terms from that date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [4.08pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 LETTER GIVEN TO EMPLOYEES 23.12.03 ON COMPANY LETTERHEAD AND SIGNED BY GENERAL MANAGER PN10