AG2005/3342, Transcript of Proceedings [2005] AIRCTrans 1169 (19 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11553-1

COMMISSIONER DANGERFIELD

AG2005/3342

APPLICATION BY TRANSPORT WORKERS' UNION OF AUSTRALIA & COOTES TRANSPORT GROUP PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3342)

ADELAIDE

9.51AM, WEDNESDAY, 11 MAY 2005

PN1

MR R WORTLEY: I appear on behalf of the Transport Workers' Union of Australia.

PN2

THE COMMISSIONER: Mr Haynes, is it?

PN3

MR D HAYNES: Yes that is correct.

PN4

THE COMMISSIONER: Now, Mr Haynes, your role, I saw it on the statutory declaration.

PN5

MR HAYNES: Manager for South Australia, Western Australia.

PN6

THE COMMISSIONER: Manager, yes thanks. Mr Wortley, do you want to talk this?

PN7

MR WORTLEY: Yes thanks Commissioner. Before you Commissioner, is an application to certify an agreement negotiated between the Transport Workers' Union of Australia and IR Cootes. This was negotiated under the ..... of a bankruptcy where the previous owners, Island, went bankrupt. The new owners got involved on a later date and this was negotiated. It does provide productivity arrangements and it is an agreement which benefits both the employees and the employer and as I said was negotiated under quite extreme circumstances so we would be seeking for the Commission to certify this agreement today.

PN8

THE COMMISSIONER: I just note that it was filed out of time, Mr Wortley. I think it was agreed to on 9 February, 21 days from there takes us through to about 2 March. It was filed on 22nd. And the reason for the lateness?

PN9

MR WORTLEY: The reason for that, Mr Commissioner, is because we had to work out who was going to actually sign the agreement on behalf of the employer. Mr Haynes ended up signing it but they had to make sure, and because all these arrangements had to be done through interstate, it took a bit of time to get the
final - - -

PN10

THE COMMISSIONER: All right. There are 15 employees. What was the result of the ballot? What was the actual ballot?

PN11

MR WORTLEY: Unanimous.

PN12

THE COMMISSIONER: Unanimous. And was there any change in the composition of the workforce from the 2 March to the 22 March? Any change to that 15?

PN13

MR WORTLEY: No Commissioner.

PN14

THE COMMISSIONER: No. All right. On that grounds I will grant the extension of time. Just a couple of things in relation to the agreement if I might. Clause - just to point out a couple of things, clause 4 of the agreement talks about the Federated Gas Employees Industrial Union Liquified Petroleum Gas Industry Award. I understand the actual name of the award is simply the Liquified Petroleum Gas Industry Award, 1991.

PN15

MR WORTLEY: Yes, that is correct, Commissioner.

PN16

THE COMMISSIONER: Yes. I mean that is fine but I will just note it for the record in case we have got a future member of the Commission looking through the files to try and find an award that doesn't exist, will understand that. Now clause 7 gave me some concerns where it says amendment to agreement:

PN17

This agreement may be varied at any time by the consent of the parties to rectify any oversight, mistake or clarify ...(reads)... unless at least 51 per cent of all employees covered by the agreement agree to the proposed variations.

PN18

What, of course, if you do vary the agreement there are provisions of the Act that you have got to go through and you can vary the agreement but you have got to go through the process in section 170MD. I am just wondering if the parties would be prepared to give this undertaking. If I could just get my associate to give it to you. It is a simple undertaking that I think it simply says:

PN19

The parties undertake that no purported amendment to the agreement pursuant to clause 7 will be made unless it complies with the requirements of section 170MD of the Act.

PN20

MR HAYNES: Absolutely

PN21

MR WORTLEY: Yes, Commissioner.

PN22

THE COMMISSIONER: And if both parties can do that I am happy to certify the agreement with that undertaking as part of it. Clause 18 talks about wage rate adjustment. It refers to schedule 1. In schedule 1 I note that the operative dates for the wage adjustments in schedule 1 just say September 04, September 05 et cetera. Now I presume that means on and from 1 September 04, 1 September 05. Is that what it means?

PN23

MR WORTLEY: Correct.

PN24

THE COMMISSIONER: Okay. Well we will just note that for the record. Clause 22, sick leave. The third paragraph says:

PN25

The company will pay a yearly bonus payment of two days sick pay to those employees that have sick leave credits from the current yearly allocation. This payment will be paid after each 12 month period ending June 2004.

PN26

Can I just know, Mr Haynes or Mr Wortley, does the payout reduce their sick leave entitlement by two days or not?

PN27

MR HAYNES: No it doesn't. Their accumulation stays the same.

PN28

THE COMMISSIONER: Okay. Thank you. Right, that is all I need there. Clause 35 speaks about commitment to HSE Quality and Customer Service Healths. HSE Health Safety and - - -

PN29

MR HAYNES: Security.

PN30

THE COMMISSIONER: HSE it says.

PN31

MR HAYNES: Health Safety and Environmental.

PN32

THE COMMISSIONER: Environmental. Okay, thank you. I was thinking of Equity. All right. Under schedule 1 there is, in the wage rates there, there is reference in the Whyalla rates to a heading - what is CHR?

PN33

MR HAYNES: Common hourly rate.

PN34

THE COMMISSIONER: Thank you. Common hourly rate. Okay. Just so I know. All fine. No, apart from that gentlemen, that is fine. With that undertaking and if the parties give that verbally, I will include that in the paperwork. Can I just indicate for the record then that this Commission has before it an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ. Now, the application I note was lodged some 20 days out of time. It was voted on by a valid majority on 9 February, filed 22 March, should have been 2 March.

PN35

However, having regard to the fact that it was a unanimous ballot of the 15 employees, the reason given by Mr Wortley for the delay and the fact that there was no change in the composition of the workforce from 2 March to the 22 March, I will grant the extension of time for the application to proceed pursuant to section 111(1)(r). The Commission notes that there are statutory declarations on file of David Haynes, Manager, SA WA Cootes Transport Group Pty Ltd, the employer in this matter and John Allen, Federal Secretary to the Transport Workers' Union of Australia.

PN36

Now those statutory declarations - and I note that there are new ones filed today, and that is good because there were some issues with the previous ones but the new ones filed today do match up and they are correct in every respect so they comply and they support this application. I can indicate that the agreement in every respect appears to me to pertain to the relations between the employees and the employer in their respective capacities as such and thus complies with the requirements of section 170LI of the Act.

PN37

Having heard from the parties today then in relation to have this agreement certified, I note that the Liquified Petroleum Gas Industry Award 1991 is the relevant award for the purposes of the no disadvantage test and I am satisfied that the provisions of the agreement indeed pass that test having regard to that award. I note that the agreement at clause 30 includes procedures for preventing and settling disputes between the parties as required by the Act. I am satisfied that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate having regard to the requirements of the Act.

PN38

Accordingly, the Commission certifies, subject only to that one undertaking also that the parties agreed to, or the parties have undertaken that no purported amendment to the agreement pursuant to clause 7 will be made unless it complies with the requirements of section 170MD of the Act. So, subject to that undertaking which has been made, the Commission hereby certifies the Gas Industry sub branch of the Transport Workers' Union/Cootes Transport Group Pty Ltd Agreement Number 5 2004 to 2007 to be operative from - formally from today's date, 10 May and in accordance with clause 10, to remain in force for a period of three years therefrom. I think that covers everything, gentlemen. Nothing omitted? Nothing further for the record? That being the case we will issue the paperwork in the next few days and we will take it from there. Thanks.

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