AG2005/4522, Transcript of Proceedings [2005] AIRCTrans 1568 (19 July 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 12214-1

COMMISSIONER GAY

AG2005/4522

APPLICATION BY SCANIA AUSTRALIA PTY LTD & NATIONAL UNION OF WORKERS-VICTORIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4522)

MELBOURNE

9.41AM, WEDNESDAY, 06 JULY 2005

PN1

MR P SHELL: I am from the Australian Industry Group and I appear on behalf of Scania Australia Pty Ltd.

PN2

MS A MICALLEF: I appear for the National Union of Workers and with me is MR C LARKIN also from the National Union of Workers.

PN3

THE COMMISSIONER: Yes, thank you. Who is going to lead?

PN4

MR SHELL: Commissioner, this is an application made under Division 2 of Part VIB of the Act for certification of agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the National Union of Workers and the award applying is the Metals, Engineering and Associated Industries Award 1998. The parties seek the Commission to exercise its discretion under section 111(1)RQ of the Act to extend the 21 day limit prescribed in section 170LM(2). Commission will have noted that while the agreement was approved by employees on 9 April 2005, it was not filed until
20 June 2005. There was a situation arose where the union did not return the documents until late and wanted some changes made to the document.

PN5

And as I understand it, it was a requirement or a request to change clause 28, the dispute settlement procedure and this was agreed to by the company and there was a later vote on 9 June 2005 to change and vote to accept the changes. The parties have prepared statutory declarations as parties believe meet all the requirements of the Act.

PN6

THE COMMISSIONER: What position, Mr Shell, and I just want to understand what your point is, do you say it still requires the exercise of a section 111(1) discretion, notwithstanding the fact that there was a second vote? Was it in time or out of time?

PN7

MR SHELL: It was out of time, as I understand it.

PN8

THE COMMISSIONER: All right. For how long, Mr Shell?

PN9

MR SHELL: I am not sure, Commissioner. I don't normally do these matters and - - -

PN10

THE COMMISSIONER: Is it a matter of days, several days, is it?

PN11

MR SHELL: I believe so.

PN12

THE COMMISSIONER: Well, we will see what Ms Micallef is able to assist us with.

PN13

MR SHELL: Thank you, Commissioner.

PN14

THE COMMISSIONER: Thank you. Yes, Ms Micallef?

PN15

MS MICALLEF: If the Commission pleases. I believe the agreement was lodged on 20 June by the AIG. I feel this is due to administrative delays at the office and some problem with the disputes clause but I think that was all resolved without any changes, to my belief.

PN16

THE COMMISSIONER: Well, Ms Micallef, you are making submissions to me. You go ahead.

PN17

MS MICALLEF: Yes, we seek - - -

PN18

THE COMMISSIONER: What is the extent of the discretion in relation to time that I might have to exercise.

PN19

MS MICALLEF: I believe it is probably two weeks, Commissioner.

PN20

THE COMMISSIONER: And have you had any inquiries made, Ms Micallef, as to whether there has been any change in the employee base.

PN21

MS MICALLEF: Yes, Commissioner. I believe there has been no significant change in the composition of the workforce that would affect outcome of the vote.

PN22

THE COMMISSIONER: And on what basis do you make that submission?

PN23

MS MICALLEF: I have consulted with the site organiser, Mr Larkin.

PN24

THE COMMISSIONER: I see. All right. Well, there are eight employees involved, aren't there?

PN25

MS MICALLEF: Yes, Commissioner.

PN26

THE COMMISSIONER: All right. Thanks, Ms Micallef. Mr Larkin, could you be upstanding please? What is your understanding of the employees who have left since the vote was taken?

PN27

MR LARKIN: It has stayed the same. It's been eight all the way through.

PN28

THE COMMISSIONER: All right. Thank you. Yes, Ms Micallef, go ahead.

PN29

MS MICALLEF: We also note that preliminary matter there is several administrative problems with the agreement. We believe our statutory declaration was never actually received by the AIG and therefore is not lodged with the agreement and we would like to hand that up at this point if that is acceptable to the Commission.

PN30

THE COMMISSIONER: Well, it's my very next question. Thank you, Ms Micallef.

PN31

MS MICALLEF: We apologise for this delay. We didn't actually realise until yesterday that it hadn't been received.

PN32

THE COMMISSIONER: Yes, very well.

PN33

MS MICALLEF: We also believe that the signature page was not actually signed when the agreement was lodged. We would also like to hand that up at this time if the Commission accepts that.

PN34

THE COMMISSIONER: Yes. Thanks, Ms Micallef. Go ahead.

PN35

MS MICALLEF: One last problem with the agreement. The parties have actually agreed to attach the current Metals Award that is referred to in clause 6 in its current form, appendix to the agreement. I think it was appendix B from recollection. The parties have confirmed this morning that this was the intention of the parties that the award in its current form be handed up to the Commission as part of the agreement, does not actually refer in clause 6 to the award in its current form. However, this was actually agreed by the parties and we would like that on the record. And if the Commission accepts we would like to hand up the copy of the Metals Award to be appended to the agreement. I believe Mr Shell has no objections to this. He has consulted with the company.

PN36

THE COMMISSIONER: Perhaps I will just hear Mr Shell about that. Is that so, Mr Shell?

PN37

MR SHELL: That's so. I have sought instructions from the company this morning after discussions with Ms Micallef.

PN38

THE COMMISSIONER: Yes. All right. Thank you. Now, Ms Micallef, what is the purpose of - the agreement makes clear at clause 6 what its relationship to the parent award is. What is it that you understand the parties agreement to represent?

PN39

MS MICALLEF: The parties agreed to preserve the award in its current form without any further amendment to the award that may take place in future years or in future months and so wish to have the award as an appendix just to clarify this point.

PN40

THE COMMISSIONER: Yes. So what I want to clarify with you is the first paragraph of clause 6 makes clear the agreement's conjunctional operation with the award. Now, it seems to me that what you are putting is that it's the agreement of the parties that it is the award as it stands today one expects, so Mr Shell says.

PN41

MS MICALLEF: Yes, Commissioner.

PN42

THE COMMISSIONER: But you see that to the extent that it is necessary to refer to the award, I understand what it is you are putting. It is, and this is to ensure there is no uncertainty into the future, what you are putting is that the award in its current form which in fact can be seen as a clarification of the first sentence of clause 6. But I want to ask you, do you say that you are - it still remains the fact that the award is not being incorporated in terms but rather what you are doing is clarifying what the form of the award is for the purpose of its conjunctional operation with the terms of the agreement.

PN43

MS MICALLEF: Exactly Commissioner, thank you.

PN44

THE COMMISSIONER: Can you see the distinction that I am drawing?

PN45

MS MICALLEF: Yes, I do.

PN46

THE COMMISSIONER: Yes, thank you. Mr Shell, is that your understanding?

PN47

MR SHELL: That is. And I specifically put that to the company representative this morning and after discussions with the union before because I didn't want to see a situation arise where the company inadvertently was seen to agree to preserving the award as it may become in the future, particularly as this agreement goes out to 2008. So the company has said they are willing to accept to preserve the award as it currently stands at this point in time but not into the future, because to do so would be risky for a company, I would suggest. I mean, to agree to something which may be changed into the future. The company is willing to agree and there was an initial claim to have it agreed that we pick up the award as it would become, but that has been not agreed to by the company. But what has been agreed is to preserve the award as existing.

PN48

THE COMMISSIONER: Yes. My principle interest is what is it that is agreed and ensure that there is no uncertainty about what that is. I am not quite as interested in what it was that was not agreed. Thanks, Mr Shell. Yes, Ms Micallef, is there anything else you want to say?

PN49

MS MICALLEF: No, Commissioner. Otherwise we support the application of the company and ask that the agreement be certified.

PN50

THE COMMISSIONER: Yes. Thank you. This is an application made out at section 170LJ of the Act for certification of the agreement of Scania Australia Pty Ltd and the National Union of Workers.

PN51

MS MICALLEF: Excuse me, Commissioner. Would you like me to hand up the award that we have asked for you to append- - -

PN52

THE COMMISSIONER: Yes, I'll do that and I will close that on the file. Thank you, Ms Micallef.

PN53

MS MICALLEF: Thank you.

PN54

THE COMMISSIONER: Now, that's a Commission document. I won't mark that as an exhibit, it will form part of the material on the file and the transcript will make clear what its purpose is to be. The agreement is entitled the Scania Australia Pty Ltd NUW Certified Agreement 2005 and its application clause sets out the scope of the agreement to whom it applies and where it applies. The agreement has as its nominal period of operation, a term extending from 31 March 2005 until 1 April 2008. The parties' intention at clause 6 goes some way to making this clear. The submissions of the parties today, I think, do make it clear that the conjunctional operation of the Metals, Engineering and Associated Industries Award 1998 which is set out at the commencement of the relationship to parent award clause of this agreement is particularly intended to preserve and apply in terms of the conjunctional operation.

PN55

The Metals, Engineering and Associated Industries Award as it is at the date of certification and for that purpose and to avoid any uncertainty, a copy of that has been handed up. I exercise the discretion under section 111 to remedy any technical deficit in the late lodgement of the application. As to the application itself, it is my view that this agreement, having given it consideration and having regard for the declarations on the file from the parties, is of that type that can be certified. It doesn't conduce to disadvantage, rather it provides advantage. It contains the necessary features required to be contained in agreements by the various sections of the Act and I will certify with effect from today's date and having regard to the terms of its operation to which I have earlier referred.

PN56

And I will make a formal certification to that effect later today and copies will be placed on the file and will be sent to the parties. I will also arrange at cost of Commonwealth for the transcript of today's proceedings to be printed and a copy placed on the file. Thank you.

<ADJOURNED INDEFINITELY [9.55AM]