AG2005/5038, Transcript of Proceedings [2005] AIRCTrans 1679 (9 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12334-1

COMMISSIONER RAFFAELLI

AG2005/5038

APPLICATION BY CEMENT AUSTRALIA PTY LIMITED & MARITIME UNION OF AUSTRALIA, THE
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5038)

SYDNEY

10.49AM, WEDNESDAY, 27 JULY 2005

PN1

MR A POWTER: If the Commission pleases, I seek leave to appear on behalf of the company.

PN2

MR W SMITH: I appear on behalf of the Maritime Union of Australia.

PN3

THE COMMISSIONER: Yes, thank you.

PN4

MR POWTER: Commissioner, the matter before you is an application for certified agreement pursuant to section 170LJ of the Act. Filed with the Registry should be appropriate forms supporting the application which includes form R27 signed by Mr Craig Jeffreys from the company, as well as a statutory declaration from Mr Jeffreys. If I can take the Commission briefly to the statutory declaration.

PN5

THE COMMISSIONER: Yes.

PN6

MR POWTER: On that basis I would make a number of submissions as to first of all the lateness of the application and second of all, the content of the agreement.

PN7

In essence, Commissioner, this application is building upon a certified agreement of this Commission, that was known as the CSR in Maritime Unions MV Goliath Enterprise Agreement 2002, I understand. What in essence this application does is alter the name of the certified agreement to properly reflect the now employing entity of the employees covered by the certified agreement. So the title of the agreement will be the Cement Australia Pty Ltd Maritime Union MV Goliath Enterprise Agreement 2004. The nature of the business is thinly to be described as logistical. You will note in the application, or should I say the statutory declaration, that the employer is a constitutional corporation. It's in agreement with the union, that being the Maritime Union of Australia.

PN8

There has been involvement of the union through consultation and discussion with its members to outline the contents of the certified agreement, and to ensure that there was a valid majority of approval of the agreement. The agreement was approved by valid majority on 8 June 2005. The actual application, Commissioner, was filed on 15 July 2005, that represents a period of approximately two weeks that the application was filed late. We would submit that you exercise your discretion pursuant to section 111(1)(r) to enable there to be an extension of the prescribed time period. The composition of the workforce subject to this agreement has not altered. The reasons for the delay, in essence, related to obtaining the relevant signatories of the parties due to interstateness of a number of the individuals that we require to have the application signed. As I mentioned before, there has been no alteration in the composition of the workforce as covered by this agreement.

PN9

Commissioner, you'll notice there that the number of employees to be covered by the agreement totals 14. There is one person from a non-English speaking background. You will see the steps that were taken by both the union and the company to ensure that all persons that were covered by this agreement were aware of the provision of the agreement, but I should also mention, Commissioner, that in essence, an agreement of a similar nature had already been in place, as this application merely relates to just changing the name, so the employers themselves were fully aware of the terms and conditions. It wasn't a fresh document, if we can put it that way.

PN10

As you can see, under 6.5 of the statutory declaration of Mr Jeffreys, access was made available to the agreement, as well as direct assistance through their union should there be any issues regarding the proposed terms and conditions of the agreement, that can be explained for them. Under clause 7.3, it is submitted that the agreement would not result in any reduction in the overall terms and conditions of employment. It also contains the mandatory dispute settlement procedure at clause 31.

PN11

I'll leave my submissions at that, at this stage, Commissioner, save for any specific questions that you may have in relation to the application.

PN12

THE COMMISSIONER: Well, Mr Powter, I do have one significant concern and that is clause 32 MUA delegate, on page 23,

PN13

MR POWTER: Yes.

PN14

THE COMMISSIONER: There a dot that says:

PN15

the right to address new employees about the benefits of union membership at the time that they enter employment.

PN16

I would have thought that that is directly at odds with the pertaining requirements, I might call it that, and specifically it is one of the clauses that Vice President Ross knocked out in Valentine. That clause had been:

PN17

The union will be given an opportunity to recruit workers as members including - according adequate time will be given.

PN18

He knocked that out, I just don't - fairly innocuous in some ways, but it's what the
High Court said.

PN19

MR POWTER: Yes. Were there any other issues with the agreement?

PN20

THE COMMISSIONER: Well, I think that there have been decisions of the Commission, knocking out agreements about union information on noticeboard that that could mean union election matters which have got nothing to do with the employee/employer relationship. That might be something that might need to be reviewed, but anyway, I not ruling on that, but I think the fourth last dot point is fatal.

PN21

MR POWTER: Just in relation to the noticeboard, as I am aware, that is not a specific union noticeboard, that’s a general noticeboard, but I take on board your comments with respect to the fatality or the nature of that dot point in this agreement. I might just speak to my friend if I may, Commissioner?

PN22

THE COMMISSIONER: Yes, all right. I'll hear from Mr Smith.

PN23

MR POWTER: Hear from Mr Smith first.

PN24

THE COMMISSIONER: Yes.

PN25

MR SMITH: Thank you, firstly the agreement was actually certified by this Commission in 2004 as the CSR Enterprise Agreement, and in terms of the noticeboard information, I think on 2 June, we certified the ASP Ship Management Stolt Agreement and had the same issues raised with respect of the noticeboard, and I would just like to point out that the noticeboard is not a specific union noticeboard, but it is just a question of the right to put up a general union leaflet or something like that, and never had any intention to be around matters of elections or the like.

PN26

The other clause, because this agreement was basically just changed and the name was changed, is where this dilemma has arisen, and I am not sure what capacity there is to be able to alter this particular clause and make it consistent with changes that we have been making that generally have been acceptable to the Commission, and if I could read out one of those formulations that has been acceptable:

PN27

It is the right to address new employees about their rights, duties and obligations under the terms of this agreement, which binds the union, the company and the employees.

PN28

If there was any scope or capacity for yourself to make such an alteration, I am sure that there would be no difficulties between the parties and certainly there would be no difficulties in terms of our membership, with respect to that. So, I'd leave it at that. The reason is is because it was a transfer of business arrangement and basically, we have just sought to change the names in an existing agreement, and all we have done is taken CSR out and put Cement Australia in, and that’s how come that’s slipped through the net.

PN29

MR POWTER: Commissioner, could I suggest this course of action. If we could just have a brief adjournment of two minutes, so I could seek some instructions from the employer in relation to the proposed clause that Mr Smith has just read out.

PN30

THE COMMISSIONER: I know he's read that out and I've approved that, but that’s because people have voted on it. I'm not in a position to be able to vary the agreement that is voted upon by the employees, and you've explained to me why this has occurred, because it was basically just a roll on of something that was approved, but the fact is these things are fatal, and there are enough decisions of the Commission that indicates that really there is only one way out, and that is you have to have a new agreement, a new ballot, essentially. So I don't think an adjournment is going to make much difference to you, in my view. I mean you cannot change the agreement.

PN31

MR POWTER: Your Honour, is there any capacity to be able to have that particular paragraph struck?

PN32

THE COMMISSIONER: No, well that’s the other point. These are all the difficulties that we face in the Commission. There is no capacity to strike it out, because in theory, all your members might have voted for the agreement because of that particular clause, how do we know? Now, it's unlikely, but nonetheless, they vote for an agreement and that’s it.

PN33

MR POWTER: There is general powers of the Commission under section 111.

PN34

THE COMMISSIONER: There are, but this is a contract that people have reached and the Commission has no ability to interfere with that - - -

PN35

MR POWTER: I understand.

PN36

THE COMMISSIONER: - - - you either just certify it or not certify it. In the circumstances, Mr Powter and Mr Smith, I am unable to certify the agreement. I think it's fatal. I think you'll have to re start. On that basis, these proceedings are now adjourned.

<ADJOURNED INDEFINITELY [11.00AM]