AG2005/3633, Transcript of Proceedings [2005] AIRCTrans 1064 (2 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11306-1

COMMISSIONER HOFFMAN

AG2005/3633

APPLICATION BY TOLL NORTH PTY LTD AND TWU
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3633)

BRISBANE

10.09AM, MONDAY, 18 APRIL 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN BRISBANE

PN1

MR D PRATT: I am a consultant with the firm Blake Dawson Waldron. I represent the employer which is the applicant in both of those matters.

PN2

THE COMMISSIONER: You are seeking leave to appear?

PN3

MR PRATT: I seek leave to appear. However, I point out for the record, Commissioner, I am not a lawyer. I am simply employed by a firm as a consultant. May it please the Commission.

PN4

MR D PRIOR: I appear on behalf of the Transport Workers' Union of Australia, Queensland branch.

PN5

THE COMMISSIONER: Thank you. Any objection?

PN6

MR PRIOR: No objection in that regard, Commissioner.

PN7

THE COMMISSIONER: Leave to appear is granted, Mr Pratt. Yes, Mr Prior.

PN8

MR PRIOR: Thank you, Commissioner. If I can deal firstly with matter number 3635 which is the Toll Resources Certified Agreement 2005. It is an agreement under section 170LJ with the Transport Workers' Union Queensland branch, Commissioner, and it seeks to replace two agreements and particularly if I can refer the Commission to item number 7.9 of the statutory declaration of Mr Terry Mallon, there is a housekeeping or typographical error in that section. The statutory declaration notes that the agreements to be replaced and there is no problem with the first agreement, TC Transport Certified Agreement.

PN9

However, the second agreement is noted as W and M Meat Transport Pty Limited Enterprise Agreement 2001 which in fact was replaced by a 2003 agreement which has passed its nominal expiry date, so in the interests of completeness, the agreement as it pertains to W and M Meat Transport should be, quote, W and M Meat Pty Limited Enterprise Agreement 2003 which is AG827760, print number PR937321. I make a point of that, Commissioner, because also for the purposes of clarity on site, if the Commission sees fit to certify this agreement, it would be of great assistance to the parties if the certificate would note which agreement this one replaces and that it specifically be the TC Transport Agreement and the
W and M Meat Transport Agreement I have just noted to the Commission.

PN10

The reason for that, Commissioner, is that both of those entities were relatively recently, but are now wholly owned and operated by the employer, the employees of which will be captured and whose terms and conditions will be regulated by this agreement, if the Commission is minded to certify it. The Commission will note, of course, that a valid majority of employees have approved the agreement and the final date of that was 25 February 2005 in Brisbane, as can be noted in item 6.2 of the statutory declarations both of Mr Mallon of the employer and
Mr John Allen of the Federal office of the Transport Workers' Union of Australia.

PN11

The agreement was, however, filed on 30 March 2005, making it outside the 21 day limit prescribed by the Act, meaning we make application respectfully for the Commission to exercise its discretion in accordance with section 111(1)(r) of the Act. We note the delay was simply an administrative one, Commissioner. Although the agreement ostensibly is between the employer and the Queensland branch of the union, because it is a Federal agreement, the Federal office of the union must be involved in the process of signing and transmitting documents, not the least of which, of course, is the statutory declaration which must be drafted after that process is concluded, so our apologies for the lateness, Commissioner, but we make application accordingly.

PN12

The statutory declarations the Commissioner I am sure will have noted provide at item 2.1 that there is a nominal expiry date set for this agreement for 31 December 2007 which is in accordance with the Act. The agreement contains a dispute resolution procedure at clause 16 and presents in our submission no disadvantage to the employees it proposes to cover and we seek support in items 7.3 to 7.6 of the statutory declarations which clearly go to that particular issue of the no disadvantage test.

PN13

Commissioner, the process of reaching agreement was conducted in a way that meets the requirements of the Act and with those submissions we respectfully commend the agreement to you for certification and simply ask that if the Commission is minded to certify the agreement, that the certificate might make mention of those which it seeks to replace or perhaps is of clarity in the workplace. Unless the Commission has any particular questions, those are our submissions on that particular agreement.

PN14

THE COMMISSIONER: Are there not some out of time issues?

PN15

MR PRIOR: I beg your pardon, Commissioner.

PN16

THE COMMISSIONER: Are there not some out of time issues because of the various dates the agreement was approved at various sites?

PN17

MR PRIOR: The note I made, Commissioner, was that we seek application under section 111(1)(r). Is that what the Commissioner is referring to?

PN18

THE COMMISSIONER: Yes.

PN19

MR PRIOR: Yes, we make application, Commissioner, that the Commission exercise its discretion in accordance with section 111(1)(r) in that the applications were filed late with regard to the 21-day limit prescribed by the Act and that the reason for that delay was the sheer logistics of moving the agreement around between the State branch of the TWU and the Federal branch and then replicating that process with statutory declarations, so our apologies to the Commission, but it is purely an administrative delay caused by the tyranny of distance.

PN20

THE COMMISSIONER: Yes, Mr Pratt.

PN21

MR PRATT: Thank you, Commissioner. I can certainly support those submissions. The agreement, indeed, was signed in December. A ballot was undertaken in February and I have a notation here that the statutory declarations were received on 22 and 24 March and were returned to the company on 24 March by express post. So we certainly would ask that the Commission would exercise its discretion in that regard.

PN22

We understand that there has been no significant change in the workplace in terms of the composition of the workforce. We certainly support the comments about clarity on the certificate in terms of other entities which have now become part of the Toll group of companies. We say that everything required under section 170 of the Act appropriately has been complied with. We would rely on the statutory declarations as filed and if you have nothing further, we would certainly commend the agreement to you today for certification.

PN23

THE COMMISSIONER: Yes. I intend to adjourn both those matters. The parties should have a discussion amongst themselves about clauses 6 and 11. That matter stands adjourned.

<SHORT ADJOURNMENT [10.17AM]
<RESUMED [10.48AM]

PN24

MR PRATT: Thank you, Commissioner. I recall I was on my feet when we adjourned. If I may, I might pass to Mr Prior to make some initial submissions, Commissioner, with regard to what you mentioned were some issues specifically regarding clauses 11 and 6 in both of these agreements, so if I can pass to
Mr Prior.

PN25

THE COMMISSIONER: Were these drafted down south, Mr Prior?

PN26

MR PRIOR: I believe so in that capacity, Commissioner.

PN27

THE COMMISSIONER: I think they are sailing very close to the wind. Normally I don't have a problem with your agreements, but I would suggest people are really pushing very, very close to falling off the edge.

PN28

MR PRIOR: I understand your concerns, Commissioner, and I can confirm that these agreements in terms of the content were negotiated at a national level, not at a State level.

PN29

THE COMMISSIONER: Yes, thank you.

PN30

MR PRIOR: Thank you, Commissioner. In that capacity, the comments that I would make about clauses 6 and 11, having had the opportunity to go through them again with the employer's representative in the recess, we would certainly say that in terms of what is contained in the clause, that it is not the intention of the parties per se to do anything other than have an expectation that the operation of the Workplace Relations Act applies in the circumstances to the conduct and the way the parties will conduct themselves in relation to each of those matters.

PN31

Perhaps in terms of going into greater detail, beyond our expectation, with Electrolux decided cases subsequent to that, that it is our expectation and understanding that the operation of the Workplace Relations Act prevails in relation to all matters pertaining to the employment relationship and in particular to the expectation that the parties have about how they would undertake the matters discussed in clauses 6 and 11. Perhaps the employer's representative might go into some further generic detail in relation to the operation of those clauses and, Commissioner, for our internal reference, your comments are noted in relation to those clauses.

PN32

THE COMMISSIONER: If you wouldn't mind passing them on to the Federal office for me and I am happy to discuss it with them. Yes, Mr Pratt.

PN33

MR PRATT: Thank you, Commissioner. I have some detailed submissions if the Commission pleases. If it specifically wishes to address particular clauses, I am happy to go to those. However, we can concur with the union's submission in regard to perhaps from a more general perspective that both of those clauses, 6 and 11, have a necessary implication that they are subject to the provisions of the Act, although in a lot of the subclauses, a discretion is placed upon agreement between the parties, or perhaps subject to the agreement of the employer.

PN34

Both the employer and the union themselves are necessarily subject in their conduct to the provisions of the Workplace Relations Act with regard to things like right of entry and union representation or union encouragement, not the least of which is the provisions of 10A for freedom of association, so regardless of what potential evils in the future may be read into those words, they are necessarily impliedly constrained by the provisions of the Act and for argument's sake, an organiser seeking to create rights, as Mr Prior has duly noted, that are in excess of those awarded to him or her under the Act, simply couldn't do so because the conduct of the parties under this agreement is constrained by the provisions of the Workplace Relations Act that have relevance to those particular clauses. Unless the Commission has particular issues it wishes to raise with any of those subclauses, I am happy to stop there.

PN35

THE COMMISSIONER: In terms of clause 11.3, parts of the first line and a half should be reviewed seriously by the parties, if the parties wish to be sure that any agreement they are proposing for certification by the Commission would be a valid agreement. If there is nothing further, having heard the submissions of the parties, the Commission is satisfied that the requirements of the Act and rules have been met. The Commission will exercise its discretion under section 111(1) of the Act with respect to late lodgment of the applications. The agreements can operate then from 18 April 2005 and remain in force to 31 December 2007. Those matters stand adjourned.

<ADJOURNED INDEFINITELY [10.53AM]