AG2005/7782, Transcript of Proceedings [2005] AIRCTrans 2568 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13804-1

COMMISSIONER DANGERFIELD

AG2005/7782

APPLICATION BY TRANSPORT WORKERS’ UNION OF AUSTRALIA & SIRVA PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7782)

ADELAIDE

11.06AM, MONDAY, 19 DECEMBER 2005

PN1

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

PN2

MR L HEALEY: I appear on behalf of Sirva Pty Ltd.

PN3

THE COMMISSIONER: Thanks, Mr Healey. Thank you. Mr Wyatt, do you want to talk to this?

PN4

MR WYATT: Yes. Before the Commission today - - -

PN5

THE COMMISSIONER: You can sit down if you like, Mr Healey.

PN6

MR HEALEY: Thank you.

PN7

MR WYATT: Before the Commission today is an agreement signed by Mr Lou Healey for the company, Mr John Allan, the federal secretary and Mr Alex Gallacher, the branch secretary, which has been lodged with the Commission under division 2, section 170LJ of the Australian Workplace Relations Act 1996. The Transport Workers Union is an organisation legally entitled to represent the interests of employees covered by this agreement. The Transport Workers Award 1998 is the award which underpins the agreement.

PN8

The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declarations signed by Mr Allan for the union and by Mr Healey for the company. The agreement does not in relation to the terms and conditions of employment disadvantage the employees who are covered by this agreement and the agreement at clause 35 includes procedures for preventing and settling 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 part of a single business.

PN9

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 November at which the majority voted in favour of the agreement. There's a total of 23 people covered by this agreement. In respect to section 170LT(7) of the Act there are three women employees, two persons under 21 and 11 casual employees. Pursuant to part VIB, division 4, section 170LT of the Act we seek the Commission to certify an agreement referred to as the Allied Pickford (Regency Park - Removals) South Australian Enterprise Agreement 2005, operative from today's date and expiring three years from certification. If the Commission pleases.

PN10

THE COMMISSIONER: Mr Wyatt, I have got a letter on file from the federal industrial assistant, Heidi Ryle.

PN11

MR WYATT: Yes

PN12

THE COMMISSIONER: You may have that, do you, the letter of 29 November?

PN13

MR WYATT: Yes.

PN14

THE COMMISSIONER: And it just points out, and this is perhaps a question for Mr Healey too, but at point 6.7 of Mr Healey's statutory declaration it talks about draft copies of the proposed agreement were made available for a period of 10 working days prior to employees taking a vote and the letter from the TWU federal office says that, and I quote:

PN15

We note that clause 6.7 of the employer's statutory declaration specifies that drafts of the agreement were circulated 10 working days prior to the vote ...(reads)... any subsequent hearing in this matter.

PN16

Can you shed any light of that, Mr Wyatt, or either you or Mr Healey?

PN17

MR WYATT: Yes, if the Commission pleases. The stat dec was actually filled out just reflecting the 10 working days. There was actually 14 days with the weekends.

PN18

THE COMMISSIONER: Is that the case, Mr Healey?

PN19

MR HEALEY: That's correct, yes.

PN20

THE COMMISSIONER: All right, thank you. So it is in effect. I just note that on the record anyway that it's a full 14 days as required by the Act and it does actually say 10 working days, yes. So it's a full 14 days. Thanks for that. Yes, anything that you want to add, Mr Healey?

PN21

MR HEALEY: No, that just about sums it up.

PN22

THE COMMISSIONER: Can I just ask both of you in regard to question 6.6 of the statutory declarations where we talk about specify the manner in which the explanation of the terms of the agreement took place in ways that were appropriate, I note that there were 23 employees, 11 of them were casuals, can I ask how many actually ended up participating in the vote, all 23 or only some?

PN23

MR WYATT: It was probably 18 people.

PN24

THE COMMISSIONER: 18?

PN25

MR WYATT: Yes.

PN26

THE COMMISSIONER: And did they all have the opportunity - I am a bit concerned that nearly half the employees are casuals and in the back of my mind I'm beginning to wonder were the casuals even there for the vote or, you know, if you say about 18 took place.

PN27

MR WYATT: Yes, and the delegate actually made contact with everybody in the work group.

PN28

THE COMMISSIONER: Right. So those who didn't vote just didn't vote because they didn't want to?

PN29

MR WYATT: Yes.

PN30

THE COMMISSIONER: Not because they weren't given the opportunity?

PN31

MR WYATT: Correct.

PN32

THE COMMISSIONER: That's correct, Mr Healey?

PN33

MR HEALEY: Yes.

PN34

THE COMMISSIONER: All right.

PN35

MR HEALEY: And also, if it please the Commission, the casual work base can vary a bit in terms of who the 11 casuals are.

PN36

THE COMMISSIONER: I see.

PN37

MR HEALEY: So we sometimes have more that we call in casuals or we even piece meal workers over a peak period, an industry peak period like we have now for instance.

PN38

THE COMMISSIONER: Yes, and it was a clear majority of those 18?

PN39

MR HEALEY: Yes. Well, it was unanimous.

PN40

THE COMMISSIONER: All right. The only other thing I just pointed out it was only technical, 6.6.1 of your statutory declaration, Mr Healey, it identifies clause 35 as being the disputes clause and the question does the clause specified empower the Commission to settle disputes over the application of the agreement. Yes, it does, that's correct. Appoint a board of reference is described and you have ticked yes. It's actually no to that, but that's neither here nor there. I can understand how these things are a bit confusing at times but it's neither a substantive nor significant thing, but your disputes clause is a fairly standard sort of clause.

PN41

MR HEALEY: 35.

PN42

THE COMMISSIONER: Clause 35 and it does not provide for a board of reference. It only provides that if the matter can't be resolved it will be referred by either party to the Commission and a decision of the Commission will be accepted by the parties as final, subject to any appeal procedures in subparagraph 5(f). I just point that out. No, okay. Nothing further then, Mr Wyatt, or
Mr Healey? No.

PN43

MR HEALEY: No, thank you, Commissioner.

PN44

THE COMMISSIONER: The Commission has before it an application under division 2 of part VIB of the Act for certification of an agreement pursuant to section 170LJ. The Commission has considered the application and the terms of the agreement the subject of the application. I am satisfied that the agreement in every respect pertains to the relations of the employer and the relevant employees in their respective capacities as such and hence complies with section 170LI of the Act. The application is underpinned by statutory declarations on file from Lucian James Healey, the State Manager of Sirva Pty Ltd, that's S-i-r-v-a Pty Ltd, the employer in this matter, and John Allen, Federal Secretary of the Transport Workers Union of Australia. Those declarations are in order.

PN45

Having heard from the parties today I note firstly that the Transport Workers Award 1998 is a relevant award for the purposes of the no disadvantage test and I'm satisfied that the agreement passes that test. The provisions of the agreement are compared with those of the award. As has been noted, the agreement at clause 35 includes procedures for preventing and settling disputes between the parties. I am satisfied on the material available and before me that the valid majority of persons employed at the time genuinely approved the agreement and that in accordance with the requirements of 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.

PN46

Accordingly the Commission certifies the Allied Pickford (Regency Park - Removals) South Australia Enterprise Agreement 2005 to be operative from today's date, 19 December 2005 and in accordance with clause 5, to remain in force for a period of three years from certification as provided by the Act. Gentlemen, the necessary certification documentation will be forwarded to you in the next short period of time given that Christmas, end of year, I'm not sure, I will try to get that out by the end of the week, we will see how we go. Congratulations on your agreement. I think that concludes then the hearing of the matter.

<ADJOURNED INDEFINITELY [11.15AM]