AG2004/1147, Transcript of Proceedings [2004] AIRCTrans 872 (16 March 2004)

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ABN 76 082 664 220

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


O/N 259
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/1147

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Total Corrosion Control Pty Ltd and Another
for certification of the Total Corrosion Control
Pty Ltd Kwinana Nickel Refinery Shutdown Works
Certified Agreement 2004

PERTH

3.28 PM, WEDNESDAY, 25 FEBRUARY 2004

PN1

MS A. HALDANE: I appear on behalf of the applicant, Total Corrosion Control Pty Ltd, in this matter.

PN2

THE DEPUTY PRESIDENT: Thank you, Ms Haldane. Please commence.

PN3

MS HALDANE: This application is made pursuant to 170LJ of the Workplace Relations Act 1996 for the certification of the Total Corrosion Control Pty Ltd Kwinana Nickel Refinery Shutdown Works Certified Agreement 2004. This agreement covers on-site construction work for the March 2004 shutdown works at the Western Mining Resources Ltd operations at the Kwinana Nickel Refinery. On balance, certification of this agreement would not result in a reduction of the overall terms and the conditions of employment of employees when tested against the National Building and Construction Industry Award 2000.

PN4

The agreement contains a dispute settlement clause, found at clause 24. The nominal expiry date of the agreement is 30 April 2004. There was also some issues raised in the issues report that was e-mailed to me and I can assure you, Deputy President, that the company is aware of the - of section 170LX(1) and this will be complied with. I also have an e-mail from the company to do with the drug and alcohol policy stating that it is pinned up on the notice boards and the employees are also introduced to it at their inductions.

PN5

THE DEPUTY PRESIDENT: Thank you. Do you wish to tender this?

PN6

MS HALDANE: Yes, Deputy President.

EXHIBIT #1 - COPY OF E-MAIL

PN7

MS HALDANE: 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.

PN8

THE DEPUTY PRESIDENT: Thank you. For precision, are you able to confirm that the agreement passes the no disadvantage test as of today's date?

PN9

MS HALDANE: Yes, I can, Deputy President.

PN10

THE DEPUTY PRESIDENT: Thank you. In relation to the nominal expiry date did I hear you correctly to say that that would be 30 April 2004?

PN11

MS HALDANE: Yes, Deputy President.

PN12

THE DEPUTY PRESIDENT: As my reading of clause 5 is:

PN13

...or the completion of the shutdown, whichever is the earlier.

PN14

MS HALDANE: Yes, sorry, Deputy President. It is that clause.

PN15

THE DEPUTY PRESIDENT: Thank you. So, your submission is that it could be earlier if the shutdown is completed?

PN16

MS HALDANE: It could be. Yes, Deputy President.

PN17

THE DEPUTY PRESIDENT: Thank you. With no further questions, I proceed to the certification of the agreement arising from an application under Part VIB, Division 2, section 170LJ of the Act in relation to an agreement to be known as the Total Corrosion Control Pty Ltd Kwinana Nickel Refinery Shutdown Works Certified Agreement 2004. Having heard Ms A. Haldane on behalf of Total Corrosion Control Pty Ltd, Total Corrosion, and there being no appearance by the Construction, Forestry, Mining and Energy Union and having read the statutory declarations filed by Mr T. Ianello on behalf of Total Corrosion and Mr K. Reynolds on behalf of the CFMEU, I am satisfied that the agreement filed relates to a constitutional corporation, namely Total Corrosion Control Pty Ltd, ACN008994616.

PN18

The CFMEU has at least one member employed in a part of the single business to which the agreement relates and is entitled to represent the industrial interests of the member. The agreement passes the no disadvantage test, was made in accordance with section 170LJ and a valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved it. The explanation of its terms was appropriate. It includes procedures for preventing and settling disputes between the employer and employees whose employment would be subject to it and it has a nominal expiry date specified of not more than three years after the date on which the agreement would come into operation.

PN19

There are no reasons set out in section 170LU of the Act why I should refuse to certify it, hence it will be certified with effect from 25 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 [3.34pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 - COPY OF E-MAIL PN7