AG2005/4308, Transcript of Proceedings [2005] AIRCTrans 1539 (18 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12140-1

COMMISSIONER DANGERFIELD

AG2005/4308

APPLICATION BY TRANSPORT WORKERS' UNION OF AUSTRALIA & 1ST FLEET PTY LIMITED
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4308)

ADELAIDE

10.45AM, WEDNESDAY, 06 JULY 2005

PN1

MR J LOADER: I appear for the Transport Workers' Union of Australia.

PN2

MR R EDWARDS: I appear for 1st Fleet.

PN3

THE COMMISSIONER: Mr Edwards, thank you. What is your position there, Mr Edwards?

PN4

MR EDWARDS: State Manager.

PN5

THE COMMISSIONER: State Manager. Okay. Thanks. Mr Loader?

PN6

MR LOADER: Yes, if the Commission pleases. I apologise for non attendance at the right time.

PN7

THE COMMISSIONER: It is okay by me. It is just you need to square off with Mr Edwards probably, Mr Loader I think. It is okay with the Commission.

PN8

MR LOADER: I think I have tried to do that.

PN9

THE COMMISSIONER: Okay.

PN10

MR LOADER: But nevertheless, Commissioner, we do apologise for that. Before the Commission today is an agreement signed by Mr David Arnel for the company, Mr John Allan the Federal Secretary of the Transport Workers' Union of Australia, Mr Alex Gallagher the South Australian/Northern Territory Branch Secretary of the Transport Workers' Union of Australia which has been lodged with the Commission under Division 2 section 170LJ of the Australian Workplace Relations Act 1996. The Transport Workers' Union is the organisation which is legally entitled to represent the interests of the employees covered by the agreement.

PN11

The Transport Workers' Award 1998 is the award which underpins this agreement. The requirements to be satisfied under the section 170LT of the Act are addressed in the statutory declarations signed by Mr John Allan for the company, sorry for the Transport Workers' Union and by David Arnel for the company. The agreement does not in relation to the terms and conditions of employment disadvantage the employees who are covered by the agreement. The agreement at clause 17 include procedures for preventing and settling disputes between the parties and in particular allows for referral to the Australian Industrial Relations Commission for settlement of disputes at clause 17(d) and 17(e).

PN12

The agreement provides for consultation with employees in relation to any changes that will affect the employees at clause 15. The agreement applies only to part of a single business and the employees covered by this agreement ..... meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal ballot was taken on 16 March 2005 at which the majority voted in favour of the agreement. The result of the ballot was that 10 voted for the agreement and there was nil against the agreement. The total number of employees that are covered by the agreement is 10 and that composition of those employees has not changed since the ballot was taken. In respect to section 170LT(7) of the Act there are no relevant employees to be considered and pursuant to section 170LT of the Act we seek that the Commission certify the agreement that should be known as the 1st Fleet Pty Ltd and Transport Workers' Union Enterprise Agreement 2005, operative from today's date and due to expire on 1 May 2008. If the Commission pleases.

PN13

THE COMMISSIONER: Yes and before I hear from Mr Edwards, if you have got anything to add Mr Edwards but there are a number of issues. First of all the agreement was lodged 14 days out of time, Mr Loader.

PN14

MR LOADER: Yes, if the Commission pleases, we received an extension of time. The issues of transportation between states both for the company and for the union have caused the problems with the application being made on time, Commissioner.

PN15

THE COMMISSIONER: The agreement was made, voted on, on 2 May, 21 days from there would take you to 23 May. It was actually lodged on 6 June so according to me that makes it, what, some 14 days out of time. I understand the logistics that occur with Transport Workers' matters from time to time in getting things signed. There are 10 employees who voted on 2 May. Mr Edwards, can you tell me whether or not there was any change in the composition of the work force from 23 May to 6 June. Any new employees, any old ones leave, anything like that?

PN16

MR EDWARDS: No, your Honour. It is still at the 10.

PN17

THE COMMISSIONER: Still the 10, all right. And because it was a unanimous decision anyway, it was a 10/nil. Yes, well, then I am happy to grant an extension of time. Now Mr Edwards, anything while you are on your feet? Anything you want to add in regard to all this?

PN18

MR EDWARDS: No, your Honour. Everything went well with the negotiations and everything is fine from our side.

PN19

THE COMMISSIONER: Right. Well, the other thing I just want to note for both of you. In regard to the statutory declarations, I don't know whether you have got them there, for some reason or other there is, in Mr Allan's declaration, Mr Loader, there is reference to the, at 6.3 to the total number of employees covered by the agreement. There is 10 and there is none in special categories that we need to carefully look at. For some reason or other the form of the employer's statutory declaration is different. It doesn't make any reference at all to the structure of the work force, the composition of the work force. I don't know why that is but Mr Edwards, can you confirm that there were 10 employees covered by the agreement, all 10 voted, they voted 10/ nil in favour and that there are, none of those employees in any of those special categories, no women, none from non English speaking background, none under the age of 21 years, no aboriginal or Torres Strait islander, no disabled person, no part time employee, no casual employee?

PN20

MR EDWARDS: That is correct.

PN21

THE COMMISSIONER: All that is correct. Okay. Well, I will just note that. Now, Mr Loader, you might be in the best position to answer this one. Just in regard to the agreement itself if you have both got the agreement there. Clause 17 is the settlement of disputes procedure and it says point, 17.1:

PN22

The parties have agreed that the following settlement of disputes procedure shall apply.

PN23

And then I have no problem with (a), (b), (c), (d) and then you come down to (e) and it says the AIRC, which is us, the AIRC may make, looking at (d):

PN24

(d), If the matter is still not settled it shall be submitted to the AIRC which shall conciliate the matter.

PN25

So far so good. Then (e) says:

PN26

The AIRC may make a determination which is binding on the parties where there is likelihood that within a reasonable period conciliation or further conciliation will result in agreement.

PN27

Now, that, if you follow that through, that doesn't make sense. The AIRC can make a determination to fix the dispute where it is likely that the parties will reach agreement with further conciliation. I think there has got to be a not missing somewhere in there does it? Shouldn't it be the AIRC may make a determination which is binding on the parties where there is no likelihood that within a reasonable period conciliation or further conciliation will result in agreement? Shouldn't there be a no before the word likelihood?

PN28

MR LOADER: I believe that, your Honour, if you follow the thing it clearly is ambiguous there. I think the company drafted the words of this. I would have to refer to ..... but it would appear what you are saying would be - - -

PN29

THE COMMISSIONER: So, yes, Mr Edwards, is that what was intended?

PN30

MR EDWARDS: Yes, I would need to just take this up with David Arnel.

PN31

THE COMMISSIONER: Yes.

PN32

MR EDWARDS: He was supposed to be here this morning, but it may be a - - -

PN33

THE COMMISSIONER: It may be just that, I expected it is a typo because as it is at the moment it is, almost says that if the Commission is of the view that there is a likelihood the parties are going to agree to the matter then we go ahead and make - it doesn't make sense. So I sure it is where there is no likelihood that, and if you could just confirm that, what I would ask, if in fact it is simply a typographical error which occasionally happens I am happy to accept a replacement page of that page of the agreement but actually while we are there, while we are on that page if you look down under clause 18 the anti-discrimination clause, it says it is the intention of the respondents to this agreement, I mean there are no, technically there are no respondents to the agreement at all because this is not an award matter, no one has been served, it is really the intention of the parties of this agreement and I am just wondering because that is the only place in the agreement that I can find anyway or that I have noted.

PN34

It is the only place in the agreement where the term respondents is used and if you are going to provide a replacement page 9, Mr Edwards, can I suggest that word respondents just be changed to parties and then I don't think that is going to, if you change respondents to parties and put the no in front of the likelihood in the, I think just give me another page 9. If in fact, you know, I am not asking, if in fact that is what you intended and I am sure you must have meant that.

PN35

MR LOADER: Can I say, Commissioner, I wasn't involved in this personally. It has been handed to me this morning but I understand that the reaching of agreement between the company and the union and the employees was a very good basis of good will and good intent. Page 2 of the agreement refers to the parties to the agreement which is 1st Fleet and the Transport Workers' Union and that is the parties specifically described as the parties.

PN36

THE COMMISSIONER: Yes.

PN37

MR LOADER: So I think that would be correct.

PN38

THE COMMISSIONER: Yes.

PN39

MR LOADER: On point 17(e) I think the, from what I understand about the arrangement of this agreement is that it would be the intention of the parties to have the Industrial Relations Commission make a determination, so I believe to make a decision if there was no agreement reached. So I believe that would be the case. I think that is a typographical - - -

PN40

THE COMMISSIONER: Yes, all right. The only other comments I have got are just comments for the future not comments in regard to this agreement but I just look at, for example, clause 24. In fact all of these clauses, 22, 23, 24, the numbering is a bit odd isn't it, where you got sort of (i), (ii), (iii), I would just prefer that to be, you know, either 24.1, 24.2 or simply 24(a), (b), et cetera, because then you do get into a bit of a mess I think. If you look at clause 24 allowances, subclause (II) says the meal allowance shall be as per clause 1. You really actually mean there as per subclause, I mean you mean as per the sentence above.

PN41

MR LOADER: Yes.

PN42

THE COMMISSIONER: Whereas clause 1 there you think well I go right back to clause 1 of the agreement and clause 1 of the agreement of course is, I don't know, about the parties to the agreement. You know what I mean? I think, but look that is for the future. It doesn't affect the legality of the agreement I am just saying I think you can tidy up the numbering of it. The only other thing I would comment on and this is perhaps for both of you and maybe particularly for the TWU in some ways. I notice that there is attached to this agreement a very detailed drug and alcohol policy. It is almost as thick as the agreement itself.

PN43

Now, I am well aware of course of the importance of the issue of drug and alcohol testing and so on for persons in the transport industry. Well aware of that and I know that the parties have spent an enormous amount of time dealing with this whole issue but, and what I would just generally say Mr Loader, is that a lot of these Transport Workers' agreements that come before the Commission do have drug and alcohol policies attached to them.

PN44

They are all slightly different and I would hope that the TWU and companies in the industry are perhaps working towards some degree of commonality on these matters because these matters, particularly if you ever get involved in an unfair dismissal procedure I mean you can be guaranteed the Commission will pore over your drug and alcohol policy with a fine tooth comb to see exactly what it does say and if different companies have slightly different provisions which I think they do at the moment and you have got workers who go from one company to another and they are covered by slightly different provisions it just makes for a bit of awkwardness and it is just a comment for the future, mainly to the TWU but I suppose to all the companies involved. If you can sort of work towards a common description of drug and alcohol policies it would be terrific because I know how important it is in the industry.

PN45

MR LOADER: If the Commission pleases. We consider that we have policies that would suit most employees but we have agreement from all of our workers for those matters.

PN46

THE COMMISSIONER: Okay. No, look, I understand how difficult it is but I am just saying, because they are such a thick document. Anyway, thank you gentlemen, I can indicate for the record then that the Commission has before it an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ. I have considered the application and the terms of the agreement the subject of the application. I note firstly that the agreement was lodged some 14 days out of time but having regard to the explanations of the parties for the reason for that and the fact that there was no change in the composition of the work force during the relevant period from 23 May to 6 June, the result of the ballot which was unanimous and the reasons for the delay I grant an extension of time pursuant to section 111(1)(r) of the Act.

PN47

I am satisfied also that in every respect the agreement does pertain to the relations of the employer and the employees in their respective capacities as such and hence complies with section 170LI of the Act. The application is supported by statutory declarations of David Arnel company secretary 1st Fleet Pty Ltd, the employer in this matter and John Allan Federal Secretary of the Transport Workers' Union of Australia. Those declarations appear to be in order although as I point out the employer declaration appears to be in a slightly different format from the one we normally get but they appear to be in order.

PN48

I note that the Transport Workers' Award 1998 is a relevant award for the purposes of the no disadvantage test and I am satisfied that that test is passed as required by the Act. The agreement at clause 17 includes procedures for preventing and settling disputes between the parties as required. We have discussed clause 17(1)(e) on page 9 of the agreement and the other small, what appears to be typo on that same page and subject to the parties providing me with a replacement page 9 to put on the formal file in the Commission's record.

PN49

Subject to that I am satisfied that the agreement took place, was explained to the employees in ways that were appropriate. I am satisfied a valid majority of persons employed at the time genuinely approved the agreement and I am satisfied that all other statutory requirements are met and accordingly the Commission certifies the 1st Fleet Pty Ltd and the Transport Workers' Union Enterprise Agreement 2005. It will be formally operative from today's date which will be the date of certification, 6 July 2005 although I note from clause 2 I think Mr Edwards that the agreement has in fact been applied from the first pay period on or after 2 May, I think it is already being applied? Yes.

PN50

And that is fine it is just the formal certification date will be today. The necessary documentation confirming the certification will be forwarded to the parties in the next few days but I will wait until I get that replacement page, Mr Edwards, then we have got the formal agreement on place on the file and then we will issue the documentation after that. Nothing further from the parties? Okay, thank you, gentlemen.

<ADJOURNED INDEFINITELY [11.02 AM]