AG2005/957, Transcript of Proceedings [2005] AIRCTrans 1839 (7 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12604-1

SENIOR DEPUTY PRESIDENT LLOYD

AG2005/957

APPLICATION BY NATIONAL PARTS PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/957)

MELBOURNE

10.00AM, THURSDAY, 25 AUGUST 2005

PN1

MR R RONDINELLI: Of the Australian Industry Group and I appear for National Parts Pty Ltd. Appearing with me this morning, your Honour, is MS YVETTE SAUNDERS, group HR manager, MR DENNIS PORCHELATTO, operations manager and MR DENNIS SMITH who is the employee representative.

PN2

MS S ALLISON: I appear on behalf of the National Union of Workers.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Allison. Mr Rondinelli?

PN4

MR RONDINELLI: Your Honour, this is an application made under Division 2 of Part VIB of the Act for certification of an agreement made in accordance with section 170LK. Your Honour, this is the second LK agreement involving this company with these employees and in fact this agreement was up before you some time ago and there were some comments which you passed on to the parties which they have taken on board. Therefore some changes were made and the agreement in its new form was put to the employees.

PN5

Ms Saunders on behalf of the company and Mr Smith as the employee representative have prepared statutory declarations which they believe meet all the requirements of the Act, regulations and rules of the Commission. The company further submits that all the requirements of section 170LK and 170LT have been met. Namely the agreement does not disadvantage the employees covered by it. A valid majority of employees employed at the time whose employment would be subject to the agreement genuinely made the agreement. In fact we understand more than 92 per cent of the employees voted in favour of the agreement.

PN6

A notice of intention to make the agreement was provided to the employees at least 14 days before the vote was to be taken. A copy of the notice to the employees was attached with the application, your Honour, and should be on the Commission's file. Access to the agreement and an explanation of the terms of the agreement occurred and was appropriate having regard to all the circumstances of the employees covered by the agreement. The agreement does contain a dispute settlement procedure which is set out under clause 12 and the period of operation of the agreement is set out in clause 4. The company therefore request that the Commission certify the agreement in the terms sought. If the Commission pleases.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rondinelli.

PN8

MS ALLISON: Thanks, your Honour. In the event that the Commission is satisfied that the agreement meets the requirements of the Workplace Relations Act the NUW wishes to be bound by the agreement. Your Honour, you should have on file a form R30A which the union forwarded to the Commission giving notice that the union wishes to be bound by the agreement and confirming that the requirements under section 170M(3)(d) are satisfied. Namely that the NUW has members who are employed, whose employment is subject to the agreement. The members have asked the union to notify the Commission that they wish to be bound by the agreement and that the NUW is entitled to represent the interests of those members. Your Honour unless you had any questions those were the union's submissions.

PN9

THE SENIOR DEPUTY PRESIDENT: Sorry it is just a statement that you have members whose employment is subject to the agreement.

PN10

MS ALLISON: That is correct.

PN11

THE SENIOR DEPUTY PRESIDENT: How do we know that? Do you have any proof of that or? It is customary sometimes in other cases before me for a membership list or something to be supplied.

PN12

MS ALLISON: That tends to only be the case unless it is disputed. I don't think there is any dispute from the company that we have members at, with the company.

PN13

THE SENIOR DEPUTY PRESIDENT: Okay.

PN14

MS ALLISON: And I think they would be happy to confirm that on the record.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rondinelli or Ms Saunders, is that the case, that there is - - -

PN16

MS SAUNDERS: Yes that is correct. We provide payroll deductions for two or three employees.

PN17

THE SENIOR DEPUTY PRESIDENT: Right.

PN18

MS SAUNDERS: That I am aware of.

PN19

THE SENIOR DEPUTY PRESIDENT: And they are NUW members?

PN20

MS SAUNDERS: That is correct. Dennis Smith who is appearing today.

PN21

THE SENIOR DEPUTY PRESIDENT: It is customary to stand, Ms Saunders, when you address the Commission.

PN22

MS SAUNDERS: Sorry. Dennis Smith who is appearing with us today is actually an NUW member.

PN23

THE SENIOR DEPUTY PRESIDENT: Right. Just checking, you say you provide payroll deductions but there is no clause to that effect, is there, in the agreement?

PN24

MR RONDINELLI: No, there is no union deduction fees clause in the agreement, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Was worth checking. I am satisfied that the agreement was reached through a process consistent with that set out in section 170LK of the Act. I am satisfied that the requirements of section 170LT of the Act are met. I am satisfied that nothing arises from section 170LU of the Act that would require the Commission to refuse to certify the agreement. Accordingly I will certify the National Parts (Victorian Warehouse) Enterprise Agreement 2005-2008 and the agreement will come into operation from 25 August 2005. The agreement shall remain in force until 24 August 2008.

PN26

MS ALLISON: Sorry, your Honour, were you going to put on the record that the NUW is bound by the EBA as well?

PN27

THE SENIOR DEPUTY PRESIDENT: I am going to come to that now.

PN28

MS ALLISON: Sorry your Honour, I thought you were standing up.

PN29

THE SENIOR DEPUTY PRESIDENT: No. Just my associate was. I note that in accordance with section 170M(3)(c) the union has notified the Commission and the company that it wants to be bound by the agreement. The union has satisfied the Commission that it has at least one member whose employment will be subject to the agreement and who has requested the union to give notice in accordance with section 170M(3)(c). I determine pursuant to section 170M(3)(d) that the agreement binds the National Union of Workers. I will issue an order to this effect. I congratulate the company and the employees on reaching the agreement and wish them well. The Commission is now adjourned.

<ADJOURNED INDEFINITELY [10.09AM]