AG2004/1126, Transcript of Proceedings [2004] AIRCTrans 742 (25 February 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 217

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/1126
AG2004/1127

APPLICATIONS FOR CERTIFICATION OF
AGREEMENTS

Application under section 170LK of the Act
by Delta Facilities Management Pty Ltd for
certification of the Delta Enterprise
Agreement (Karratha) 2004

Application under section 170LK of the Act
by Delta Facilities Management Pty Ltd for
certification of the Delta Enterprise
Agreement (Burrup) 2004

PERTH

3.18 PM, FRIDAY, 13 FEBRUARY 2004

PN1

MS A. HALDANE: I appear on behalf of the applicant, Delta Facilities Management Pty Ltd.

PN2

DEPUTY PRESIDENT: Thank you, Ms Haldane. And may I have your appearances, please, in Karratha.

PN3

MR R. PALMER: Yes.

PN4

MR R. WALKER: Yes.

PN5

DEPUTY PRESIDENT: Is that Mr Palmer?

PN6

MR PALMER: Yes.

PN7

DEPUTY PRESIDENT: And is Mr Walker present?

PN8

MR WALKER: Yes, that is right.

PN9

DEPUTY PRESIDENT: Thank you. Ms Haldane?

PN10

MS HALDANE: This application is made pursuant to section 170LK of the Workplace Relations Act 1996 for the certification of the Delta FM Enterprise Agreement (Burrup) 2004 and Delta FM Enterprise Agreement (Karratha) 2004. The agreement covers the operations of the Delta Facilities Management Pty Ltd in the town of Karratha and on the Burrup Peninsula on the North West Shelf Project. On balance, the certification of this agreement would not result in a reduction of the overall terms and conditions of employment of employees when tested against the Hydro Carbons and Gas Production and Processing Award. The Mechanical and Electrical Contractor North West Shelf Project Burrup Peninsula Maintenance Work Order, the Building Trades Construction Award, the Electrical Contracting Industry Award, the Transport Workers General Award and in the Karratha Agreement, the Contract Cleaners Award, the Landscape Gardening Industry Award and the Building Trades Award.

PN11

The agreement contains a dispute settlement clause found at clause 5.16. The nominal expiry date of the agreement is 31 December 2006. There are a number of issues that were raised by yourself, Deputy President, in the issues report. The company has given me a reply to this and it has been forwarded to the Commission on 9 February and we are of the understanding that these explanations are acceptable. The necessary statutory declarations have been filed by the parties and we are seeking certification with effect from the first pay period commencing on or after today's date. May it please the Commission.

PN12

THE DEPUTY PRESIDENT: Thank you, Ms Haldane. I would like to raise a question in relation to the statutory declaration of the employer in relation to the Karratha agreement. Question 2.1, the employer cited an ABN number and not the ACN number. I wonder if you can confirm that and clarify that for me?

PN13

MR PALMER: You were asking whether it was an ACN ..... on the agreement or?

PN14

THE DEPUTY PRESIDENT: I am actually asking that question to Ms Haldane but it does relate to the question 2.1 in the statutory declaration of the employer.

PN15

MS HALDANE: I actually don't have a copy of the ACN number but I can forward you a copy by the close of business today.

PN16

THE DEPUTY PRESIDENT: The number which is listed is ACN 98075305010.

PN17

MS HALDANE: Yes. I've only got a copy of the ABN number here. I have the ABN number as 35057073905 as the ABN number, but I can clarify that and get back to you.

PN18

THE DEPUTY PRESIDENT: Thank you. Yes. I will proceed with my next question and if there is any further thoughts during the course of the hearing, we can return to that question. In relation to the agreement, clause 1.7, it does give as the date of coming into operation 1 January 2004 and I wondered if the parties present can confirm that they do understand that the correct legislative provision means that the agreement commences as from the date of certification by the Commission. Thank you. And I wonder if the two employees present, Mr Palmer and Mr Walker, could confirm your understanding of that?

PN19

MR PALMER: Yes, I understand that.

PN20

MR WALKER: I understand that.

PN21

THE DEPUTY PRESIDENT: Thank you for that. And I would seek your confirmation that the agreements pass the no disadvantage test as of today's date?

PN22

MS HALDANE: Yes, it has.

PN23

THE DEPUTY PRESIDENT: Thank you. At this point the Commission proposes a very brief adjournment to check the matter which was raised earlier. We will adjourn just for a minute or two.

SHORT ADJOURNMENT [3.25pm]

RESUMED [3.27pm]]

PN24

THE DEPUTY PRESIDENT: We resume after a brief adjournment and I would ask Ms Haldane if there is any further submission in relation to the ACN number?

PN25

MS HALDANE: Not at the moment. I am waiting for Mr Allan Fox, who is the group manager. He is just checking with the company. He shouldn't be long.

PN26

THE DEPUTY PRESIDENT: From the Commission's point of view - I note that the gentleman concerned has just arrived.

PN27

MS HALDANE: Yes, he has and the ACN for the company is 075305010 and the ABN is 98075305010.

PN28

THE DEPUTY PRESIDENT: Thank you. The importance of clarifying that, of course, is so that the requirement of the Act and the appropriate rules and regulations is met in that what is required is the ACN number and not the ABN number. You have clarified that and given me the correct ACN number. Thank you for that. I would ask if you are able to confirm that the two agreements pass the no disadvantage test as of today's date?

PN29

MS HALDANE: Yes, they do, Deputy President.

PN30

THE DEPUTY PRESIDENT: Thank you. I now invite Mr Palmer and Mr Walker to express any comments that you would wish to make in relation to the certification of the agreement.

PN31

MR PALMER: No, we don't have any comments, or I don't.

PN32

MR WALKER: Nor do I, because I'm representing the cleaners. They're all fine with everything.

PN33

THE DEPUTY PRESIDENT: Thank you. I now then proceed to the certification of the agreement, which is pursuant to Part VIB, Division 2, Section 170LK of the Act and the two agreements are to be known as the Delta Enterprise Agreement Burrup 2004 Agreement and the Delta Enterprise Agreement Karratha 2004. Having heard Ms A. Haldane on behalf of Delta Facilities Management Pty Limited, Delta and Mr R. Palmer and Mr R. Walker on behalf of the employees and having read the statutory declaration of Mr K. Janney on behalf of Delta, I'm satisfied that the constitutional corporation to which the agreements relate is Delta Facilities Management Pty Limited ACN 075305010.

PN34

The agreements pass the no disadvantage test, were made in accordance with section 170LK and a valid majority of persons employed at the time whose employment would be subject to the agreements genuinely approved them. The explanation of the terms of the agreements was appropriate. They include procedures for preventing and settling disputes between the employer and employees whose employment would be subject to them and they specify a nominal expiry date not more than 3 years after the date on which they would come into operation. There are no reasons set out in section 170LU of the Act why I should refuse to certify them.

PN35

Hence they will be certified with effect from 13 February 2004 to operate in accordance with their terms from that date. The formal certificates will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [3.31pm]