AG2004/4866, Transcript of Proceedings [2005] AIRCTrans 44 (4 January 2005)

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TRANSCRIPT OF PROCEEDINGS

O/N 2668

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2004/4866

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Construction, Forestry, Mining and
Energy Union - Construction and General
Division, SA Divisional Branch and Others
for certification of the Linke Contracting
Enterprise Agreement 2004

ADELAIDE

10.41 AM, TUESDAY, 21 DECEMBER 2004

PN1

MR A. HARRIS: I appear on behalf of the CFMEU and the unions.

PN2

MR B. SICKERDICK: I appear for Linke Contracting.

PN3

MR NOACK: I appear for Linke Contracting.

PN4

THE COMMISSIONER: Now, Mr Harris, do you want to speak to this?

PN5

MR HARRIS: Yes, Commissioner, thank you. We have the stat decs. We have followed through. We believe all parties have followed the Act correctly. The employees have had the agreement in front of them over the required period of time. They have all made their comments and had a look, and they have had it for quite a while but due to the Electrolux decision that came out, there had to be a few changes so they even actually had it longer than the normal situation. The employees voted on it, and the respective ones that fitted the other categories - the casuals and the under-aged one - it was explained to them properly, so as far as we believe the procedure, it has gone ahead okay.

PN6

THE COMMISSIONER: Yes. I must say I've only got a couple of observations to make about a couple of things in the statutory declarations, and one small question in terms of the agreement, Mr Harris. Clause 10 of the agreement is the one dealing with wage rates.

PN7

MR HARRIS: Yes, Commissioner.

PN8

THE COMMISSIONER: I just want to know - in 10.1, it has got classification levels and then there are three tables. The first table is "Adjusted Rate Per Week." "Adjusted", what does that mean? Adjusted to what?

PN9

MR HARRIS: That was the current rate they were getting which was already - because there's already been an agreement, it wasn't the normal award so they had already had an adjustment rate over the award.

PN10

THE COMMISSIONER: I see, so it was the rate immediately before this agreement?

PN11

MR HARRIS: Yes.

PN12

THE COMMISSIONER: No, that is fine. I thought it was something as simple as that. Now, the only other thing, and I just note this for the record - it is only minor matters - 1.4 of the statutory declarations is the one that says, "Does this agreement apply to part of a single business or the whole of a single business?" and we have actually got three statutory declarations that say three different things. We have got Mr Garver's statutory declaration which suggests the agreement applies to the business as a whole, Mr William's statutory declaration suggesting that it applies to only part of the business, and Mr Sickerdick's declaration suggesting that the agreement applies to both, whole and in part, to some extent.

PN13

MR HARRIS: No, unfortunately the organiser who had done this with us that fits in - when some people talk about the whole of the business, you start looking at the office people and all that, and we should know that that is not our - you know, not the area we are looking at, so the confusion comes sometimes that: well, it covers all my people. If you look at "all my people", it also encompasses the owner which we don't actually include.

PN14

THE COMMISSIONER: Yes.

PN15

MR HARRIS: So it is just the normal people who are working on the site.

PN16

THE COMMISSIONER: Yes, so it calls the relevant employees who are employed by Linke as a whole, but only the relevant employees?

PN17

MR HARRIS: Yes.

PN18

THE COMMISSIONER: The format for these statutory declarations is sometimes quite difficult. The only other thing is in 7.7.2 of the stat decs. There was a bit of an issue there. Well, it is not really an issue at all but, I mean, does the clause empower the Commission to settle disputes over the application of the agreement, and appoint a board of reference as described. I just noted there that Mr Williams answers "yes" and "no", whereas the other two statutory declarations answer "yes" to both. Just for the sake of being utterly pedantic, the correct answer is? Wait for it - "yes" and "no."

PN19

The TWU wins the prize because I think, in actual fact, in the disputes procedure clause there, it does allow the Commission to become involved but it doesn't have a board of reference procedure, but that is fine. So I just note those really for the record in case there's any future issue. I don't have any problems then, Mr Harris, unless you have got any further comments?

PN20

MR HARRIS: No, that is all. I believe the employees and the employer already run a fairly harmonious relationship, so hopefully that continues.

PN21

THE COMMISSIONER: Any comments to make, Mr Sickerdick or Mr Noack? Any comments you want to make for the record?

PN22

MR SICKERDICK: No.

PN23

MR NOACK: No.

PN24

THE COMMISSIONER: I can indicate then for the record that this application is 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. The application is supported by statutory declarations of Brian Sickerdick, Civil Construction Manager, Linke Contracting Proprietary Limited - the employer in this matter; Hughie Williams, Acting Federal Secretary, Transport Workers Union of Australia; and Mark Garver, Organiser, Construction, Forestry, Mining and Energy Union.

PN25

Those declarations are in order, subject to the one or two clarifications that I made this morning. Having heard from the parties today in relation to an application to have the agreement certified under Division 2 of Part VIB of the Act, I am, firstly, satisfied that the agreement itself contains only matters that pertain to the employer and employee relationship in the sense required by section 170LI of the Act. I note also that the Transport Workers Ancillary Vehicles Award (1985); Transport Workers Long Distance Drivers Award (1993); and the Transport Workers Award (1998) are the relevant awards for the purposes of the no disadvantage test.

PN26

Having compared the provisions of the agreement with those awards, I am satisfied that the agreement passes that test. The agreement, at clause 16, includes procedures for preventing and settling disputes between the parties as required by the Act. I'm also satisfied, on the material before me, that a valid majority of persons employed at the time genuinely approved the agreement, and that the explanation of the terms of the agreement took place in ways that were appropriate, having regard to their particular circumstances and needs. Accordingly, the Commission certifies the Linke Contracting Enterprise Bargaining Agreement 2004 from today's date, 21 December 2004.

PN27

In accordance with clause 5, it will remain in force until 30 June 2006, being a date that in accordance with the Act is not more than 3 years after the date on which the agreement comes into operation. I note, however, for the record, that the agreement is, in effect, already in operation, operating from the first full pay period on or after 3 July this year. The necessary documentation confirming the certification will be forwarded to the parties in due course, possibly even this week. It will be this week and unless there's anything further from the parties for the record, I congratulate the parties, and that then concludes the hearing of the matter.

ADJOURNED INDEFINITELY [10.49am]