AG2005/7580, Transcript of Proceedings [2005] AIRCTrans 2518 (15 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13585-1

COMMISSIONER DANGERFIELD

AG2005/7580

APPLICATION BY TRANSPORT WORKERS’ UNION OF AUSTRALIA & ASCOT HAULAGE PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7580)

ADELAIDE

2.10PM, TUESDAY, 29 NOVEMBER 2005

PN1

MR R WYATT: I appear on behalf of the Transport Works union.

PN2

MR R KUCZMARSKI: I appear for the Ascot Group of Companies which is the parent company of Ascot Haulage (NT) Pty Ltd.

PN3

MR WYATT: If the Commission pleases, before the Commission today is an agreement signed by Mr Trevor Marslin from the company, Mr John Allen Federal Secretary, Mr Alex Gallagher Branch Secretary which has been lodged with the Commission under Division 2 section 170LJ of the Australian Workplace Relations Act 1996. The TWU is the organisation legally entitled to represent the interests of the employees covered by this agreement and the Transport Workers Award 1998 is the award which underpins it. The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declaration signed by Mr Allen for the union and I believe Mr Ron Kuczmarski for the company.

PN4

The agreement does not in relation to the terms and conditions of employment disadvantage the employees who are covered by the agreement. The agreement at clause 28 includes procedures to prevent and settling of disputes between the parties. The agreement provides for consultation with employees in relation to changes that may affect those employees. The agreement applies only to a single part of the business and employees covered by this agreement have been consulted at meetings conducted at the worksite. There are copies of the agreement received to employees and an informal vote was taken on
19 October and that was actually by ballot if the Commission pleases, at which a majority voted in favour of this agreement and the result of the ballot was eight in favour and nil against. There is a total of 15 employees covered by the agreement.

PN5

THE COMMISSIONER: You can guarantee me Mr Wyatt that all 15 received the appropriate ballot papers?

PN6

MR WYATT: Yes I can Commissioner.

PN7

THE COMMISSIONER: Yes okay.

PN8

MR WYATT: In respect to section 170LT (7) of the Act, there are no relevant employees to be considered. Pursuant to Part 6VIB Division 4 section 170LT of the Act, we seek the Commission to certify an agreement referred to as the Ascot Haulage (NT) Pty Ltd Cooper Basin Enterprise Agreement 2005 operative from today’s date and expiring on 30 June 2006.

PN9

THE COMMISSIONER: Mr Wyatt just in regard to the lodgement of this, it was about eight days out of time I think. The reason for the delay? According to me it was voted on 9 October it should have therefore been lodged 21 days later would have taken us through to about 9 November. It was actually lodged on
17 November, so the issue is I suppose the reason for the delay first of all.

PN10

MR WYATT: Well the reason would be, being that we’re talking about a location that has predominantly shift workers that fly in and fly out, there was some delay in the arrival of the ballot papers and basically that’s where that time lapse happened. We actually, between the company and ourselves said we will extend because our understanding is these people, the movement - - -

PN11

THE COMMISSIONER: I understand, I think given particularly the location it might have made a difference. The only other thing any change to the composition of the workforce from the 9 November to 17 November?

PN12

MR WYATT: No there’s not your Honour.

PN13

THE COMMISSIONER: Because again being only eight voting out of
seventeen - - -

PN14

MR WYATT: Fifteen.

PN15

THE COMMISSIONER: Out of fifteen I’m sorry. Eight out of fifteen, the other seven just didn’t cast a ballot. All right thanks for that. Mr Kuczmarski.

PN16

MR KUCZMARSKI: We concur with the submissions by the TWU. I can confirm that all employees received the ballot papers and there has been no change to the composition of the workforce. I agree with Mr Wyatt’s assessment about the delay, we got the signatures late and by the time the normal process for the transport workers in this company’s agreements having to go to Melbourne et cetera. Other than that if there’s any questions from the Commission we seek to have the agreement certified as well.

PN17

THE COMMISSIONER: Thanks Mr Kuczmarski. The agreement I think looks in order. We just tidied up that one aspect of the statutory declarations.

PN18

MR KUCZMARSKI: If I may sir there’s just one point I might - just on page six of 22 from my copy, 10.1.1 there should be actually a per annum dollar figure inserted on that last line - - -

PN19

THE COMMISSIONER: Yes now I have noted that yes thank you.

PN20

MR KUCZMARKSI: Can I just suggest that if you turn to 10.2 the weekly rate of $1099.41 is that just multiplied by 52 would be the figure to be inserted into that area there.

PN21

THE COMMISSIONER: That weekly rate multiplied by 2 - - -

PN22

MR KUCZMARKSI: By 52.

PN23

THE COMMISSIONER: By 52 I’m sorry. You don’t have the calculator there do you?

PN24

MR KUCZMARSKI: No I don’t I’m sorry. As I was reading that’s the only thing I could find - - -

PN25

THE COMMISSIONER: No I noted that actually yesterday that this says you noticed as to why 10.1.1 the employer shall pay the employee the annual salary of and there’s a figure missing. But it is pretty clear, well I guess 52 is the multiplier you are using although there is sometimes at 52 and a bit isn't there?

PN26

MR KUCZMARSKI: Well I can confirm that the calculations used to construct that come up with an annualised figure divided by 52.

PN27

THE COMMISSIONER: Look I don’t seem to have a calculator, perhaps if we could get that figure and I’ll just put it in now if that's all right. I don’t think that’s a substantive amendment or anything like that it’s just a typographical error.

PN28

MR KUCZMARSKI: $57,169.32.

PN29

THE COMMISSIONER: I’ve marked that on the copy. I think a replacement page - I mean its one thing for me to mark it and initial it, but I’m not the - I think the easiest thing is if there is just a replacement page 6 that you email or whatever to my associate and we’ll fix it up from there. Are you happy with that figure
Mr Wyatt?

PN30

MR WYATT: Yes.

PN31

THE COMMISSIONER: All right. I can indicate then that this is an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ. The agreement has been lodged some eight days out of time, but having regard to the explanation for the delay the fact that there was no change in the composition of the workforce for the relevant periods which were
9 November through to 17 November and having regard to the result of the ballot which was a unanimous ballot amongst those who did participate, the Commission extends the time necessary to hear the application and I do so pursuant to section 111(1)(r) of the Act.

PN32

The agreement is supported by statutory declarations of Ronald John Kuczmarksi, Group HR Manager, Ascot Haulage the employer in this matter and John Allen the Federal Secretary of the Transport Workers Union of Australia. Those declarations are in order. I am satisfied that the agreement in every respect pertains to the relations of the employer and the employees in their respective capacities as such and hence complies with section 170LI of the Act. The Transport Workers Award 1998 underpins the agreement and for the purposes of the no disadvantage test I’m satisfied that the agreement passes the no disadvantage test in terms of that award.

PN33

The agreement at clause 28 includes procedures for preventing and settling disputes between the parties. I’m satisfied on the material before me that a valid majority of persons employed at the time genuinely approved the agreement. Accordingly the Commission certifies the Ascot Haulage (NT) Pty Ltd - Cooper Basin Enterprise Agreement 2005, to be operative from today’s date
29 November 2005 in accordance with clause 5 it will remain in force until
30 June 2006. I note that from clause 5 the agreement actually comes into effective operation the first pay period commencing on or after 1 July of this year. Again the necessary documentation gentlemen will be issued to you in the next few days. Nothing further for the record and that then concludes the hearing of the matter.

<ADJOURNED INDEFINITELY [2.19PM]