AG2005/4272, Transcript of Proceedings [2005] AIRCTrans 1424 (1 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11936-1

DEPUTY PRESIDENT IVES

AG2005/4272

APPLICATION BY CBI CONSTRUCTORS PTY LTD & THE AUSTRALIAN WORKERS' UNION - VICTORIA BRANCH AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4272)

MELBOURNE

10.04AM, MONDAY, 20 JUNE 2005

PN1

MR C MILNE: I appear for the CBI Constructors Pty Ltd.

PN2

MS Z ANGUS: If the Commission pleases, I am appearing on behalf of the Australian Workers' Union, and with me today is the sight delegate
MR A KELLY.

PN3

MS C CHEW: Thank you, your Honour, I'm from the Australian Manufacturing Workers' Union and with me also the steward from the sight, MR JACKSON.

PN4

THE DEPUTY PRESIDENT: Thank you. It was your application wasn't it
Mr Milne?

PN5

MR MILNE: Yes, it is your Honour. Your Honour, the application before the Commission is made under section 170LJ of the Act. The employer is
CBI Constructors Pty Ltd, which is a constitutional corporation. I think the ABN number has been identified in the stat dec et cetera. The organisations of employees who are party to the agreement are both the Australian Workers' Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. Each of those organisations that are party to the agreement have members covered by the agreement and are entitled to represent their industrial interests.

PN6

The agreement was approved by a valid majority of employees on 21 April 2005, the agreement at that stage covered 26 employees - there has been a slight reduction, but that would not affect the outcome of the vote, your Honour. The proposed agreement was explained by the employers at the time of the voting and at all report back meetings during negotiations, these negotiations had been going on for a protracted period of time, your Honour and each of the employees had been kept up to date through a series of meetings and report backs.

PN7

Those explanations were directed to the employees in such a way that they all understood and were actually actively involved in the negotiations so the content of the agreement is understood by each of the employees concerned. The agreement does contain a dispute settling procedure, now that's at clause 11. Your Honour, I've identified that there's an error in the index actually, were the clauses are one out but the actual clause in the index on the document will say its
clause 12, but it is in fact clause 11.

PN8

The nominal expiry date is three years from the date of certification and that's contained in clause 2 of the agreement, and that would therefore make that
20 June, 2008. The expiry date obviously is not more than three years from the date upon which the agreement was made. The agreement passes the
no disadvantage test in that no terms and conditions have been reduced, only increased and I believe the agreement only contains matters that pertain to the relationship between the employer and employee. The additional information is contained in the stat decs that have been filed with the application, your Honour and I would rely on the stat decs in the matter today.

PN9

THE DEPUTY PRESIDENT: Yes. Just on that subject, there was a minor omission from the stat dec, Mr Milne, in that the date that the agreement was first provided to the employees was not provided on a statutory declaration as required. I think my associate has taken that up with you and you've undertaken to amend.

PN10

MR MILNE: Yes, I'll attempt to find that date out, as I've said this has been going on for some eight months now or perhaps even more and there's been a number of different documents in various forms that have been part of this negotiation but I have had it raised by your associate.

PN11

THE DEPUTY PRESIDENT: Yes. I think it's an issue that arises frequently now because it wasn't as I recall, previously a requirement that the date be provided, but it is now.

PN12

MR MILNE: That's correct. So on that basis, your Honour, I believe that the requirements of the Workplace Relations Act have been met and the processes that have been gone through satisfy those requirements. We would ask the Commission to certify the agreement as of today's date.

PN13

THE DEPUTY PRESIDENT: Thanks, Mr Milne. Ms Angus.

PN14

MS ANGUS: Yes, your Honour, the AWU supports the submissions made by
Mr Milne. It's also our understanding that all the requirements of the Act have been met, I think bar one and that is it may not have been filed within the requisite 21 day time period.

PN15

THE DEPUTY PRESIDENT: Yes it is out of time, about 20 days.

PN16

MS ANGUS: So to that extent, we would make application for an extension of time and simply say there was some unresolved issues on the sight between the union and the employer that resulted in some delay in the processing of the documents. I'm not sure - I didn't hear an application that's why I'm making
my - - -

PN17

THE DEPUTY PRESIDENT: No, he didn't make the application, I think
Mr Milne did address the issue of any change to the workforce - - -

PN18

MS ANGUS: Right and I can support that Mr Kelly, the AWU delegate, has informed me that I think three people have left. That would have no impact on a valid majority and we do seek still to have the agreement certified. Please the Commission.

PN19

THE DEPUTY PRESIDENT: Thanks Ms Angus. Ms Chew.

PN20

MS CHEW: Thank you, your Honour, we endorse the submissions made by both parties.

PN21

THE DEPUTY PRESIDENT: Thank you. Yes, pursuant to section 111(1)(r) of the Act, I extend the timeframe by the amount necessary to allow for the certification of this agreement. I'm satisfied that the agreement and associated documentation comply with all relevant requirements of the Act. I note that the issue of the absent date on the stat dec - the date relating to when the agreement was first provided to employees, is one that is to be remedied by the parties. On that basis I can indicate that the CBI Esso Long Island Point Certified Agreement 2005 will be certified with effect from today's date. The agreement reaches its nominal expiry date 19 June, 2008. Matter is adjourned thank you.

<ADJOURNED INDEFINITELY [10.10AM]