AG2005/4943, Transcript of Proceedings [2005] AIRCTrans 1867 (7 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12622-1

COMMISSIONER SIMMONDS

AG2005/4943

APPLICATION BY PAL CONTRACTORS PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/4943)

MELBOURNE

12.05PM, FRIDAY, 26 AUGUST 2005

PN1

PN1

MR P KANEEN: Seeking leave to appear on behalf of PAL Contractors.

PN2

THE COMMISSIONER: Yes thanks Mr Kaneen. There is no objection, so leave is granted.

PN3

MR KANEEN: Thank you.

PN4

THE COMMISSIONER: Yes?

PN5

MR KANEEN: Yes, well appearing here today, Commissioner, to seek ratification of the PAL Contractors Enterprise Agreement 2005. The procedures as per section 170LK of the Workplace Relations Act were complied with in this case. A letter has been sent out to employees on 18 May.

PN6

THE COMMISSIONER: Have you got a copy of that letter - - -

PN7

MR KANEEN: Yes, I do.

PN8

THE COMMISSIONER: - - - to circulate.

PN9

MR KANEEN: That did advise employees that they were entitled to seek union or other representation if they so desire. Actually I might have to just go through the file, that is another letter. My apologies. I think I might have misplaced it. Would it be acceptable to the Commission to forward that through to you?

PN10

THE COMMISSIONER: No, I would need it now. Well, what was the phrasing of the letter?

PN11

MR KANEEN: Basically, it just says words to the effect that employees have the right to seek advice from any union representative or other representative of their choosing in accordance - - -

PN12

THE COMMISSIONER: Well it has got to say more than that, doesn't it?

PN13

MR KANEEN: Sorry?

PN14

THE COMMISSIONER: It has to say more than that, doesn't it?

PN15

MR KANEEN: That is not in exact words but I could provide them for you.

PN16

THE COMMISSIONER: Well, there has been a Full Bench decision in which one matter was overturned because it didn't specify the - - -

PN17

MR KANEEN: I do apologise. It was an oversight but I can vouch that the letter did indeed go out. If the Commission would bear with me I would be able to find a similar letter in another file.

PN18

THE COMMISSIONER: Yes but the notice has got to state that any person whose employment will be subject to the agreement that the notice must also state that if any person whose employment will be subject to the agreement is a member of an organisation of employees and the organisation is entitled to represent their industrial interests in relation to the work that will be subject to the agreement, they can request the organisation to represent the person in meeting and conferring with the employer about the agreement. Now that is what it has got to say.

PN19

MR KANEEN: Yes.

PN20

THE COMMISSIONER: Words to that effect. Which are quite different from what you said.

PN21

MR KANEEN: Yes, well if I could find a letter, I have had that letter accepted in other agreements, with respect.

PN22

THE COMMISSIONER: Well, by me?

PN23

MR KANEEN: No. Senior Deputy President Kaufman, yesterday.

PN24

THE COMMISSIONER: Well I haven't seen the letter. I haven't seen the letter.

PN25

MR KANEEN: Okay.

PN26

THE COMMISSIONER: And if you have got one that is similar and you say it is similar I will accept that but - - -

PN27

MR KANEEN: I did hand it up to Senior Deputy President Kaufman yesterday which was acceptable. I have got to try and find another copy. I have found a similar letter which contains identical wording, Commissioner.

PN28

THE COMMISSIONER: Yes.

PN29

MR KANEEN: In relation to another enterprise agreement but it is at the third paragraph there I believe.

PN30

THE COMMISSIONER: I am not sure that that does exactly what this - all you say is that they are entitled to consult with the union if they so desire. Or any other person. Then you say employees may appoint a bargaining agent. We wish to have the CFMEU involved in the EBA also. Did it say that?

PN31

MR KANEEN: Yes. Sorry, the letter to PAL Contractors would not have included the CFMEU reference. That is a separate issue.

PN32

THE COMMISSIONER: So where was the statement that, and if the organisation is entitled to represent the person's industrial interests in relation to the work that they will be subject to the agreement the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.

PN33

MR KANEEN: With respect, Commissioner, I was trying to maintain the intent yet keep the wording relatively simple because we are dealing with a group of earthmoving employees and - - -

PN34

THE COMMISSIONER: But it doesn't say that they can request the organisation to meet with the employer.

PN35

MR KANEEN: Well I would suggest that is inferred. However I take your point.

PN36

THE COMMISSIONER: Well tell me where is it inferred in those words?

PN37

MR KANEEN: By appointing the union to consult with.

PN38

THE COMMISSIONER: It doesn't say that. They are entitled to consult with the union if they so desire about the EBA process and content. It doesn't say anything about them having the union represent them in negotiations, does it?

PN39

MR KANEEN: I take the point.

PN40

THE COMMISSIONER: Yes.

PN41

MR KANEEN: However may I say with respect again that that has been acceptable in a number of other recent matters that I have been involved with.

PN42

THE COMMISSIONER: Well it might have been but you have to convince me and I appreciate the respect with which you put that forward but it is not acceptable to me. Particularly given that I don't have the letter I have only got a letter. Do you want me to adjourn the matter so that you can bring the actual letter to me?

PN43

MR KANEEN: I think that would be appreciated. However logistically it is a bit tricky but I will certainly be back to - - -

PN44

THE COMMISSIONER: Well look it might be better if I adjourn this matter until, you need a Thursday or a Friday I understand, do you?

PN45

MR KANEEN: Fridays generally. If I was to post or fax the letter would that be - - -

PN46

THE COMMISSIONER: Well it just depends on the content of the letter. It may be, well okay, what I can do is this. Subject to me being, you better talk about the rest of the agreement but in terms of this aspect of it I can say that the agreement is certifiable subject to me being satisfied that the letter complies with the requirements of section 170LK(4).

PN47

MR KANEEN: Yes.

PN48

THE COMMISSIONER: And if I find that it doesn't comply with section 170LK(4) I will say so.

PN49

MR KANEEN: Yes.

PN50

THE COMMISSIONER: And I won't proceed further with the matter. It would be up to you to either appeal my decision or go through a process where you do it all again.

PN51

MR KANEEN: Yes.

PN52

THE COMMISSIONER: You have got your choice.

PN53

MR KANEEN: Yes.

PN54

THE COMMISSIONER: But I will issue a decision. So that is the best way to deal with it I think. Okay well let's go on with the rest of the agreement and you will fax that to me this afternoon, will you?

PN55

MR KANEEN: I am tied up all afternoon. I will be able to fax it to you Monday.

PN56

THE COMMISSIONER: Well it won't help me because I am in the country all next week.

PN57

MR KANEEN: I am unavoidably - - -

PN58

THE COMMISSIONER: That is all right. So you will have to wait.

PN59

MR KANEEN: Yes.

PN60

THE COMMISSIONER: Yes?

PN61

MR KANEEN: Well the agreement applies to a constitutional corporation which is a single business. The agreement was negotiated by employees acting on behalf of all other employees. The award which is applicable is the Australian Workers' Union Construction and Maintenance Award 2002. The agreement was finally voted on and approved by a valid majority of employees on 7 July 2005. All employees are English speaking. The final amended agreement was circulated more than 14 days prior to the vote 22 June 2005 to all employees. We submit that the certification of the agreement will not result in an overall reduction of terms and conditions of employees as a whole. There is a disputes resolution procedure contained within the agreement at clause 12 and the nominal expiry date is 30 June 2006. Thank you.

PN62

THE COMMISSIONER: Thank you. As I said I am satisfied that this agreement meets the test prescribed in the legislation for certification save and accept for one matter and that concerns the extent to which the employer has complied with the requirements of section 170LK. Mr Kaneen does not have with him today a copy of the notice that was sent to the employees pursuant to that section and has undertaken to provide the Commission with a copy of that notice as soon as possible. Subsequent to receiving that notice I will either certify the agreement with effect from today's date or I will decline to certify it and give my reasons for so declining. I will have my associate hand this letter back to you. On that basis the proceedings are adjourned. Thank you.

PN63

MR KANEEN: Thank you.

<ADJOURNED INDEFINITELY [12.15PM]