AG2005/6798, Transcript of Proceedings [2005] AIRCTrans 2479 (9 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13527-1

COMMISSIONER DANGERFIELD

AG2005/6798

APPLICATION BY TRANSPORT WORKERS’ UNION OF AUSTRALIA & K&S FREIGHTERS PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/6798)

ADELAIDE

10.04AM, THURSDAY, 24 NOVEMBER 2005

PN1

MR R WYATT: I appear on behalf of the Transport Workers' Union of Australia

PN2

MR B DOUGLAS: I appear for K&S Freighters.

PN3

THE COMMISSIONER: Now, Mr Douglas, what's your position with the company?

PN4

MR DOUGLAS: State manager.

PN5

THE COMMISSIONER: You're the state manager, are you? All right, thanks. Mr Wyatt, we'll hear from you.

PN6

MR WYATT: If the Commission pleases, before the Commission today is an agreement signed by Mr Brian Douglas, for the company, Mr John Allen, federal secretary, and Mr Alex Scully, the branch secretary, which has been with the Commission under Division 2, section 170LJ of the Australian Workplace Relations Act 1996. The Transport Workers' Union is the organisation legally entitled to represent the interests of employees covered by this agreement. The Transport Workers' Award 1998 is the underpinning award. The requirements to be satisfied under section 170LT of the Act are addressed in a statutory declaration, signed by Mr Allen for the union and Mr Fabian Meli for the company.

PN7

The agreement does not, in relation to the terms and conditions of employment, disadvantage the employees that are covered by this agreement. The agreement, at clause 21, includes procedures for the preventing and settling of disputes between the two parties. In particular, it allows for appeal to the Australian Industrial Relations Commission. The agreement provides for consultation with employees in relation to any changes that may affect those employees. The agreement applies only to part of the single business. Employees covered by this agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a formal vote was taken on 22 September 2005 at which a valid majority voted in favour of the agreement.

PN8

The total number of employees covered by this agreement is 17. In respect to section 170LT(7) of the Act, there are no further employees to be considered. Pursuant to Part VIB of Division 4, section 170LT of the Act, we seek the Commission to certify the agreement referred to as the K&S Freighters Transport Workers' Enterprise Agreement 2005 South Australia Winfield Site Agreement operative from today's date and expiring on 1 October 2008, if the Commission pleases.

PN9

THE COMMISSIONER: Yes, Mr Wyatt, it's noted that we're out of time a bit here. The ballot, I think, was taken on 22 September. 21 days from 22 September would take you through to 13 October. The agreement was filed on 25 October. So, that's about twelve days out of time. What was the reason for that delay?

PN10

MR WYATT: If the Commission pleases, it was the administrative function of having a federal office located interstate. I believe the company needed to have signatures from interstate and it was a mere formality with getting hold of the people, the relevant parties.

PN11

THE COMMISSIONER: Do you know the result of the ballot?

PN12

MR WYATT: The result of the ballot?

PN13

THE COMMISSIONER: 17 employees?

PN14

MR WYATT: Yes, it was all in favour.

PN15

THE COMMISSIONER: 17, they all voted? Okay. Yes, thanks for that, I've got a couple of moments in a moment, but I'll come back to that. Thanks.
Mr Douglas, anything that you want to add to any of this?

PN16

MR DOUGLAS: No, sir.

PN17

THE COMMISSIONER: Can I just ask you, Mr Douglas, was there any change in the composition of the workforce from 13 October, which is the date when the agreement should have been lodged, through until 25 October. I mean, were any new employees employed who would be covered by this agreement?

PN18

MR DOUGLAS: No.

PN19

THE COMMISSIONER: The reason I ask that is that you are supposed to get this agreement in within 21 days of the ballot and if it is past that 21 days I can extend the time, but in this case we have 17 employees. If for example, on the 22nd or 23rd day half of those resigned and another 20 came in, or something, and took their position, they'd all be bound by the agreement and wouldn't have had a chance to vote on it. That's the reason I've got to ask, but there was no change in the composition of the workforce?

PN20

MR DOUGLAS: No.

PN21

THE COMMISSIONER: Okay. Look, also, while you're there, in regard to
Mr Fabian Meli, the industrial relations person. In his statutory declaration, it is incomplete in a number of respects. Have you got a copy? Oh, you don't have it there. If I could just refer you to this, have you got a copy there, Mr Wyatt?

PN22

MR WYATT: Yes.

PN23

THE COMMISSIONER: Look, a number of these things don't concern me, but I'll just point them out. In Mr Meli's statutory declaration, he doesn't answer 1.4. 1.4 is:

PN24

Answer this question only if this agreement applies to part of a single business as defined

PN25

He hasn't answered it; therefore, I assume that the agreement applies to the whole of the business, but yet of course in Mr Allen's statutory declaration at 1.4
Mr Allen has answered it to say yes it is a part of a single business or it's a geographically distinct part or distinct operation or organisational unit. You see that?

PN26

MR WYATT: Yes.

PN27

THE COMMISSIONER: I suspect the union is correct, well I am sure the union is correct, because K&S is a large company, it employs more than 17 employees.

PN28

MR WYATT: Yes.

PN29

THE COMMISSIONER: So technically, Mr Meli should have ticked the yes box there in 1.4. Now, look, that's all right, I'll overlook that. I mean, that's fine, I just want to point that out. There are a couple of other areas where he hasn't answered the question. If you go over to 5.1 of his declaration, in relation to which organisation employees party to the agreement state whether each organisation has at least one member employed, in other words, the TWU. Well, he hasn't answered that. He hasn't answered 5.2, to say whether each organisation, namely the TWU, is entitled to represent the interests. He hasn't answered that, but again, he should, but there's no problem with that. The union's statutory declaration covers that adequately.

PN30

6.1 is a bit of a problem, state whether the agreement was genuinely approved by a valid majority of persons employed at the time whose employment will be the subject of the agreement. He hasn't answered that question and that gives me some concern. I mean, the union has said yes the agreement was genuinely approved by a valid majority of employees. Can you assure me that it was?

PN31

MR DOUGLAS: I can, I've got that all here and their signatures where they voted and signed off on it.

PN32

THE COMMISSIONER: So, even though Mr Meli hasn't - see, the idea of this statutory declaration is that I just take it as read. If the employer said yes, it was genuinely approved by a valid majority, well, I don't have to ask these questions, but you've got some personal knowledge of this, have you?

PN33

MR DOUGLAS: Absolutely.

PN34

THE COMMISSIONER: It was approved? All right. The other one he hasn't answered is 7.3, which says have the terms and conditions prescribed of any relevant award been reduced by this agreement. He hasn't answered that, but it's clear from the agreement, which I checked out myself, that the answer is no to that one, which is what the union has said. Look, I think, in view of your personal knowledge of the ballot, Mr Douglas, I'll let the statutory declaration stay as it is. If Mr Meli had been here today then I probably would have asked him to tick the relevant box under 6.1, or something, and give me a replacement page, or something. I like statutory declarations to be complete, but perhaps that's just something you can talk to him about for next time.

PN35

MR DOUGLAS: Yes, I will.

PN36

THE COMMISSIONER: You know, all the boxes really should be answered one way or the other. It just makes the Commission's task a little easier.

PN37

MR DOUGLAS: Of course, absolutely.

PN38

THE COMMISSIONER: I think we'll leave it at that. All right. That's the only question I've got for you, Mr Douglas.

PN39

MR DOUGLAS: Thank you.

PN40

THE COMMISSIONER: Gentlemen, can I just say, in regard to the agreement itself, can I just clarify a couple of things. In schedule 1 of the agreement, that's the schedule of wage rates, in the table right at the back there you'll notice that there's the table of rates and it says:

PN41

Weekly rate 1 October 2004, Weekly rate 1 October 2005

PN42

Etcetera, right across to:

PN43

Weekly rate 1 October 2007

PN44

Are the operative dates for those wages there on and from 1 October in each year or do they apply for the first pay period on or after 1 October?

PN45

MR DOUGLAS: No, we'd bring it back to 1 October.

PN46

THE COMMISSIONER: It's the actual day?

PN47

MR DOUGLAS: The actual day.

PN48

THE COMMISSIONER: All right. Well, that's the way the agreement technically reads.

PN49

MR DOUGLAS: Yes.

PN50

THE COMMISSIONER: I thought I'd just ask that to clarify. That's fine. The other one, and this is probably more one for Mr Wyatt to bear in mind for the future, under clause 19, workplace union meeting, clause 19A says:

PN51

It is agreed that the company will provide reasonable facilities for the holding of workplace union meetings on company premises.

PN52

Can I just suggest, Mr Wyatt, that in future it would be better if you made it clear in sentences such as this that the meetings were for the purpose of discussing matters pertaining to the agreement or matters pertaining to the employment conditions of the employees or something along those lines just to overcome the Electrolux type issue; however, I am satisfied that the clause does as it is - and given the context of the clause - pertain to the relations of the employer and the employees, because I think if you look at subparagraph B it talks about the state manager having a right to address such meetings. The fact that a state manager has the right to address such meetings I think a court would be likely to find that it's okay to assume that the state manager would only want to address a meeting that did pertain to the relations of the employer and the employees as such. You know, the state manager would never want to address a union meeting just for the sake of talking about internal union matters. You know what I mean?

PN53

MR WYATT: Yes.

PN54

THE COMMISSIONER: So, therefore, I think the context of clause 19 as a whole makes it fine in this case, but I'll just point out that for the future, I think where you're talking about workplace union meetings, or something, it's always best just to avoid any doubt by qualifying it by putting in those words about in relation to matters pertaining to the agreement or in relation to the employment of the employees, something like that, just for the future, that's all.

PN55

MR WYATT: Thank you.

PN56

THE COMMISSIONER: Mr Douglas, I don't know whether you understand what I'm talking about, there. It's important, the High Court has actually said in regard to these agreements now that every part of the agreement must strictly pertain to the relations of the employer and the employees in their respective capacities as such. I suppose an argument could be mounted under clause 19 that that's a matter pertaining to the relations of the company and the union, not the company and the employees as such, but, as I've said, I think if you read the whole thing in context I think it is okay, but sometimes we have to be careful about how we word these things. All right, thank you, gentlemen, nothing further from either of you? No.

PN57

MR WYATT: No, Commissioner.

PN58

THE COMMISSIONER: I can indicate for the record that this is an application, under Division 2 of Part VIB of the Act, for certification of an agreement pursuant to section 170LJ. First of all, while the agreement has been lodged some twelve days out of time, having regard to the submissions of the parties and the explanations provided I extend the time, pursuant to section 111(1)(r) of the Act to enable this application to proceed.

PN59

I can say that I have examined the application and the terms of the agreement that are subject of the application. I am satisfied that the agreement in every respect does pertain to the relations of the employer and the employees in their respective capacities as such and hence complies with section 170LI of the Act. This application is supported by statutory declarations of Fabian Meli, industrial relations officer, K&S Freighters, the employer in this matter and John Allen, federal secretary of the Transport Workers' Union. With a few things that I've noted in Mr Meli's statutory declaration, which was incomplete in some respects, in all other key and important respects these declarations are in order and they do support the application for certification.

PN60

I note that the Transport Workers' Award 1998 is the relevant award for the purposes of the no disadvantage test. I am satisfied that the agreement passes the no disadvantage test. I note that at clause 21 the agreement provides for procedures for preventing and settling disputes between the parties as required by the Act. I am satisfied, on the material before me, that a valid majority of persons employed at the time genuinely approved the agreement and that in accordance with the Act the explanation of the terms of the agreement took place in ways that were appropriate, having regard to the circumstances and needs of the relevant employees.

PN61

Accordingly, the Commission certifies the K&S Freighters Pty Ltd Transport Workers' Enterprise Agreement 2005-2008 South Australia (Winfield Site). The Agreement will be operative from today's date, 24 November 2005, which will be the date of certification; although, I note the agreement in part relates to wage movements going right back to October 2004 and October 2005. Presumably, those wages movements have already been paid and are already being paid.

PN62

MR DOUGLAS: Yes.

PN63

THE COMMISSIONER: In accordance with clause 4 of the agreement, the agreement will remain in force until 1 October 2008, being within the three year nominal period provided within the Act. I can say, gentlemen, that the necessary documentation that you will get, confirming certification of the agreement, will be forwarded by my office in the next week or so. I think that will conclude the matter, unless there's something further from the parties? That, then, concludes the hearing of the matter.

<ADJOURNED INDEFINITELY [10.20AM]