AG2005/4382, Transcript of Proceedings [2005] AIRCTrans 1661 (5 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12319-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2005/4382

APPLICATION BY BOART LONGYEAR PTY LTD & NOBLE, SCOTT
s.170LK - Agreement with employees (Division 2)
(AG2005/4382)

ADELAIDE

10.31AM, MONDAY, 25 JULY 2005

PN1

MS N BYRON: I appear on behalf of the Australian Mines and Minerals Association, and I have with me MS A CONRAN from Boart Longyear.

PN2

MR S NOBLE: I appear as the of the employee representative for the Boart Longyear South Australian operation. I am a fitter ..... and finisher.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Noble. I can advise the parties that I've read the statutory declarations and I've read the agreement. I've got a couple of questions, first of all about the process that was followed, and then we'll move to the agreement itself. Now, Ms Byron, do you have a copy of the Notice of Intention issued by the employer in relation to this matter?

PN4

MS BYRON: Yes, I do, your Honour. I have a copy here. I also have attached the summary of the agreement which was sent out with the Notice.

EXHIBIT #B1 NOTICE OF INTENTION AND SUMMARY OF AGREEMENT

PN5

THE SENIOR DEPUTY PRESIDENT: First of all, should I understand that this document was provided to all employees, Ms Byron?

PN6

MS BYRON: Yes, it has.

PN7

THE SENIOR DEPUTY PRESIDENT: And am I correct in understanding that this was in fact the second Notice of Intention to make the agreement, that there was an earlier notice that was issued?

PN8

MS BYRON: The third Notice of Intention. The first one was given out on
25 October. I have a copy of the first Notice of Intention.

EXHIBIT #B2 FIRST NOTICE OF INTENTION, DATED 25/10/2004

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. I'm looking for that one to make sure the requirements of section 170LK4 have been met. Should I understand that if I go back to the 25 May 2005 Notice of Intention that the document that is referenced in the second of the dot points in that letter as being available through Anita Conran, is the agreement in its current form?

PN10

MS BYRON: No your Honour, there were some changes through negotiations. The first change was an increase in the wage rates -

PN11

THE SENIOR DEPUTY PRESIDENT: Just stop there for a minute. I'm looking at the document, the last of the Notice of Intentions.

PN12

MS BYRON: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: That’s the one dated 25 May 2005. Were there any changes made to the agreement subsequent to that correspondence?

PN14

MS BYRON: No, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Are all the employees to be covered by the agreement working on the same site as Ms Conran?

PN16

MS BYRON: Yes, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: In terms of their ability to access that final copy of the document?

PN18

MS BYRON: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Ms Byron, at this stage. Mr Noble, can I clarify first of all your status as the employee representative. Were you elected as such?

PN20

MR NOBLE: Yes, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: I see. Can you confirm to me that, as an employee, you received at least those two Notices of Intention to make the agreement, one back in October and one again in May?

PN22

MR NOBLE: Yes, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Are you aware of any employee who sought to have a union involved in discussions about this agreement?

PN24

MR NOBLE: There was some discussion regarding the union, but nobody actually took this to them.

PN25

THE SENIOR DEPUTY PRESIDENT: I see. And should I understand that copies of the agreement were generally made available to employees?

PN26

MR NOBLE: Yes, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Noble, I am going to ask Ms Byron some questions about the agreement itself. Have you got a copy of the agreement there?

PN28

MR NOBLE: Yes, I have, sir.

PN29

THE SENIOR DEPUTY PRESIDENT: My questions do not invite Ms Byron to change the agreement or to rewrite it in any way. They simply go toward clarifying issues that I'll need to take into account in this matter. If you were to add anything to any of her answers, please feel free to hop up and do so.

PN30

MR NOBLE: Thank you.

PN31

THE SENIOR DEPUTY PRESIDENT: All right. Ms Byron, can I take you to clause 9, which is the aims of the agreement. This clause refers to an overall strategy. Should I understand that notwithstanding that overall strategy, the agreement is to be read as a package all by itself? That is, this document is not seeking to invoke some other provisions?

PN32

MS BYRON: It is only to be read in conjunction with the award that was listed in the statutory declaration.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Clause 11 deals with duties and responsibilities. I can take you to a few of those dot points. The second dot point refers to all lawful directions, instructions and policies as varied from time to time. Are all of those instructions and policies available in a documented form?

PN34

MS BYRON: I don’t have instructions your Honour. If I could just - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN36

MS BYRON: I've just been informed that they are available on the intranet.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you, and the third dot point. I'm sorry, perhaps before we leave the second dot point, reference is made to policy specific to a client's workplace, are they also on the intranet?

PN38

MS BYRON: Yes, they are, and are also part of the induction .....

PN39

THE SENIOR DEPUTY PRESIDENT: I see, thank you. The third dot point concludes with the sentence:

PN40

To submit to drug testing as required by the employer or any client.

PN41

Is that issue addressed also by a policy, or is it a blanket requirement applicable to any form of drug testing?

PN42

MS BYRON: I'll just get instructions, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN44

MS BYRON: Thanks, your Honour. There is a policy in place at Boart Longyear. My understanding is that if there was a policy in place in the client's premises, then ..... will apply.

PN45

THE SENIOR DEPUTY PRESIDENT: I see, and again, that client policy would be publicised to employees?

PN46

MS BYRON: Yes, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you. The last of the dot points in clause 11 also refers to occupational health and safety policies and procedures. Am I correct in understanding they too would be on the intranet?

PN48

MS BYRON: Yes, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Clause 15 deals with workers compensation. This question doesn't impact on certification, but I am not quite sure that I understand the clause, and hence, I'd infinitely prefer to ask you the question now in terms whether or not you can explain its import to me.

PN50

MS BYRON: Yes, I have no instructions your Honour. If you would like me to- - -

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, feel free to do so. Yes, thank you.

PN52

MS BYRON: Yes, your Honour. I have been instructed that this clause relates to the period between the time of the injury and its termination by the insurer, whether the claim will be accepted, that the employer will continue to pay entitlements in that period.

PN53

THE SENIOR DEPUTY PRESIDENT: I see, yes. The matter is substantively covered by the Act at any rate. All right, thank you. Yes that’s all, thank you,
Ms Byron. Mr Noble, could I take it that you are in agreement with all of
Ms Byron's responses to my questions?

PN54

MR NOBLE: Yes, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the information provided to me, I am satisfied that the agreement was reached through a process consistent with that set out in section 170LK of the Act. I am similarly satisfied that the agreement deals with matters that relate to the relationship of this employer and its employees for the purpose of section 170LI of the Act. The agreement meets the requirements necessary for certification that are set out in sections 170LT and LU of the Act, and accordingly, will be certified with effect from today. A certificate will be sent out to the parties in the next couple of days. That certificate will identify the various clauses about which I have sought clarification. It won't record the answers given to me, because those are recorded on the transcript. I congratulate the parties on reaching this agreement, and hope that it operates to benefit both the employees and the employer. I'll adjourn the matter accordingly.

<ADJOURNED ACCORDINGLY [10.44AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 NOTICE OF INTENTION AND SUMMARY OF AGREEMENT PN4
EXHIBIT #B2 FIRST NOTICE OF INTENTION, DATED 25/10/2004 PN8