AG2004/8041, Transcript of Proceedings [2005] AIRCTrans 102 (10 January 2005)

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 15951
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

AG2004/8041

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by NYK Line Australia Pty Limited for certification
of the NYK Line (Australia) Pty Limited Certified
Agreement January 2005 to March 2007

SYDNEY

9.42 AM, WEDNESDAY, 22 DECEMBER 2004

PN1

MR R. BERVILLE: Human Resources Manager for NYK Line Australia. With me is MR S. VELJANOSKI, employee representative NYK Line Australia.

PN2

THE COMMISSIONER: Thank you, gentlemen. The matter before the Commission is an application to file pursuant to section 170LK of the Workplace Relations Act. It is an application by NYK Line Australia Proprietary Limited and the employees of that employer for the certification of an agreement. Attached to the application were two statutory declarations, one by the company Human Resources Manager, Mr Berville, dated 30 November 2004, another by the Senior Bookings Clerk on behalf of employees, Mr S. Veljanoski, dated 30 November 2004. Will you deal with the application, please, Mr Berville

PN3

MR BERVILLE: The application was lodged on 2 December with the Registry. The company had a majority vote with in excess of 70 employees voting in favour of the new agreement which is the continuation of an agreement that is expiring on 31 December. Only probably seven to eight clauses were changed, not significant changes, and as previously mentioned there was a majority vote in favour of the new agreement which we hope will be approved and in place effective from 1 January 2005.

PN4

THE COMMISSIONER: So this has a prospective operation date.

PN5

MR BERVILLE: We are hoping the agreement will be in place from 1 January 2005 to the end of March 2007. Just over 2 years. The previous agreement was exactly 2 years. This is just covering 2 years 3 months. The reason for that is just to bring that line with our new financial year reporting requirements. We have a head office in Tokyo so we are just wanting to bring our financials in line with our certified agreement as well.

PN6

THE COMMISSIONER: Thank you, Mr Berville.

PN7

MR BERVILLE: Thank you, Commissioner.

PN8

THE COMMISSIONER: You rely upon your statutory declaration?

PN9

MR BERVILLE: Yes, yes, I do, Commissioner.

PN10

THE COMMISSIONER: I only have one question in relation to this agreement, Mr Berville. Can I take you to the disputes settlement procedure clause, clause 18 of the agreement. Dispute settling clauses are very important in agreements of this nature. I note that clause 18.03 says and I quote:

PN11

The intention is to resolve any problems by agreement at the workplace. However, if the negotiation process is exhausted without the dispute being resolved the parties shall jointly or individually refer the matter to the Industrial Relations Commission for assistance.

PN12

For the sake of the public record would you explain to me what the words "for assistance" mean?

PN13

MR BERVILLE: If the procedures outlined in clauses 18.01 and 18.02 haven't been met within the organisation we will approach the Industrial Relations Commission for additional assistance to resolve the dispute if we can't resolve the dispute in-house. I think that is the - - -

PN14

THE COMMISSIONER: I have to ask you the question. You observed the question that I asked of the representative in the matter immediately preceding your matter. A dispute settling procedure has to have an end point. Now, be assured I'm not touting for business. I don't mind where the end point is so long as the agreement says that there is an end point. Now, referring the matter to the Commission for assistance, quote unquote, is not an end point in itself because the Commission has certain powers and what I need from you is an assurance or a commitment as to what those words "for assistance" actually means. Does it mean that the Commission should only exercise the powers of conciliation or should it mean use of the powers of conciliation and/or where necessary the power of arbitration to resolve the dispute?

PN15

MR BERVILLE: Definitely the latter.

PN16

THE COMMISSIONER: Well, perhaps you might confer with your colleague about that and ensure that that is his understanding. You have both been involved in the development of this agreement.

PN17

MR VELJANOSKI: That is my understanding, Commissioner.

PN18

THE COMMISSIONER: Is it, Mr Veljanoski? Right, that if the matter is referred in dispute to the Commission, the Commission is then empowered to resolve the matter using its powers of both conciliation and/or arbitration as necessary.

PN19

MR VELJANOSKI: Yes.

PN20

THE COMMISSIONER: Thank you. That is all I need on the public record. That then records your intent and the meaning of those words and should there ever be a dispute in the future as to what powers the Commission should exercise, either side may refer to the transcript of these proceedings to resolve that.

PN21

MR BERVILLE: Thank you, Commissioner.

PN22

THE COMMISSIONER: Thank you, gentlemen, please be seated. When I'm asked to certify agreements of this nature, they being non union agreements, I invite the parties who represent the employer and the employees to ask questions of the Commission about this certification process. So to each of you gentlemen, do you have any questions in relation to this certification process?

PN23

MR BERVILLE: As the employer representative, no, I don't have any further questions, Commissioner.

PN24

MR VELJANOSKI: I have no further questions either, Commissioner.

PN25

THE COMMISSIONER: All right, thank you. Do you both understand that my certifying the agreement gives the agreement legal force?

PN26

MR BERVILLE: Yes, I do, Commissioner.

PN27

MR VELJANOSKI: Yes, Commissioner.

PN28

THE COMMISSIONER: Thank you. This matter is an application by the employer NYK Line Australia Proprietary Limited and the employees of that employer for the certification of an agreement under section 170LK of the Workplace Relations Act. The agreement applies to the operations of the employer at six nominated offices in New South Wales, Queensland, South Australia, Western Australia and Victoria.

PN29

The employer is a constitutional corporation for the purpose of subsection 170LI(1)(a) and thus the agreement is applicable to single business, part of a single business or a single place of work for the purpose of subsection 170LV of the Act. On the basis of the submissions of the parties and the statutory declarations submitted in accordance with rule 49(2) I am satisfied the agreement meets the relevant requirements of section 170LK.

PN30

I am also satisfied on what is before me that there are no grounds for refusing the agreement under section 170LT or section 170LU of the Act. I am satisfied that no organisation of employees notified the employer in writing that it wished to be bound by the agreement. I have had identified to me those relevant employees referred to in subsection 170LT(7) and am satisfied that those employees were consulted and were informed of the matters described in subsection 170LK(7) in an appropriate manner and that the effects of the agreement were properly explained to them.

PN31

Consequently I will certify the agreement under section 170LT of the Workplace Relations Act with effect from 1 January 2005 and the agreement shall remain in force until 31 March 2007. That concludes the matter and the Commission will adjourn.

ADJOURNED INDEFINITELY [9.52am]