AG2005/2886, Transcript of Proceedings [2005] AIRCTrans 474 (24 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10518

COMMISSIONER BLAIR

AG2005/2886

s.170LK - agreement with employees (division 2)

APPLICATION BY ETRS PTY LTD
(AG2005/2886)
Metal, Engineering and Associated Industries Award 1998

MELBOURNE

4.30PM, TUESDAY, 15 FEBRUARY 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR G SMITH: I seek leave to appear for ETRS Proprietary Limited and with me is MR B BUTLER and MR D BALLENGER from the company.

PN2

THE COMMISSIONER: Thank you, Mr Smith. And who do we have in Sydney? MR A BURNETT and MR S CRAVEN is it?

PN3

MR BURNETT: That is correct.

PN4

THE COMMISSIONER: All right. And both are employees of the company?

PN5

MR BURNETT: Yes.

PN6

THE COMMISSIONER: Yes. Okay. Yes, Mr Smith.

PN7

MR SMITH: Thank you, Commissioner. On 11 February this year on behalf of ETRS we filed under cover of a letter to the registrar, an application to certify an agreement made between ETRS and its employees under section 170LK of the Act. We also filed a statutory declaration of Mr Brett Butler with numerous attachments. We also filed a copy of the agreement, the copy we filed, Commissioner is unsigned but in a moment I can hand you up a signed copy of the agreement. And we also filed with the registry, letters to the 12 employees who will be covered by this agreement relating to Incolink and part of the agreement with the employees was that we would file those letters with the Commission on the file as part of our commitment to honour the conditions regarding Incolink. I am not sure if you have a copy of those. They were with the material that we filed at the registry.

PN8

THE COMMISSIONER: Yes. I have got those, thank you.

PN9

MR SMITH: So what I can do now is hand up a signed original of the agreement signed by the employer and by one of the employee scrutineers. I will just hand that up, I don't think I would tender it, it was just part of the files.

PN10

THE COMMISSIONER: Thank you. Right. Thank you.

PN11

MR SMITH: Thank you, Commissioner. Now, as I said, this is an LK agreement and we say that based on the statutory declaration of Mr Butler, the Commission can be satisfied that it has jurisdiction to certify the agreement and I refer specifically to the fact, as evidenced by the statutory declaration, that ETRS took reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement had at least 14 days notice in writing of the intention to make the agreement under LK and at or before the time when notice was given to employees, ETRS took reasonable steps to ensure that every person who would be covered had ready access to the proposed agreement in writing. ETRS also notified employees in writing as required by 170LK(4), that is that any employee who was a member of a union and they wished to - they could request the union to represent them in meeting and conferring with the ETRS about the agreement, that letter is the notice which is attached to
Mr Butler's statutory declaration.

PN12

And in addition, before the agreement was made, ETRS took reasonable steps to ensure that the terms of the agreement were explained to all employees employed at the time whose employment would be subject to the agreement. So all of the core jurisdictional requirements of LK were met. The agreement was not varied during or after the 14 day consideration period, it has not been varied since. In terms of the requirements of 170LT of the Act, the agreement meets the no disadvantage test, there are no reductions in award terms or conditions and that is deposed to in paragraph 6.3 and 6.4 of the statutory declarations, which the Commissioner has no doubt had an opportunity to review. The agreement provides for wage increases of 4.4 per cent each year in the years 2005, 2006, 2007. It also provides for payment of bonus payments in certain circumstances.

PN13

Now, Commissioner, a valid majority of employees employed who will be subject to the agreement genuinely approve the agreement. The vote was seven in favour, five against. All 12 employees voted. The integrity of the voting process, we say, is demonstrated by the statutory declaration, paragraph 5.10, and in addition scrutineers were appointed from both the general body of employees and by the AWU. So we say it meets the requirements in that regard, that is the requirement of LT(6) of the Act. Now, the employer was made aware by the union that there may be two employees who may be from a non-English speaking background and the employer took special steps to accommodate their needs as is set out in the statutory declaration. The agreement contains a dispute resolution procedure, clause 18, and it has a nominal expiry date which is three years from the date of certification.

PN14

So we say it meets all of the requirements for certification. It does not fall foul of any of the matters set out in section 170LU which would, if it did, require the Commission to refuse certification. The agreement relates to a geographically distinct part of the NDT business of ETRS, that is New South Wales, so section 170LU(8) is satisfied. So for all of those reasons, Commissioner, we say you must certify the agreement. Those are my submissions. Thank you. Do you have a question?

PN15

THE COMMISSIONER: The signature on the agreement is who, on behalf of New South Wales NDT employees? Despite the fact that they have printed it, I can't read it.

PN16

MR SMITH: It is a Mr Peter Makin, Commissioner.

PN17

THE COMMISSIONER: Right. And Mr Makin was the nominate scrutineer, is that right? By the AMWU.

PN18

MR SMITH: No, I think the AMWU had a different scrutineer. There were two scrutineers, there was - - -

PN19

THE COMMISSIONER: One was a Mr Wright, and in the letter dated
24 January it says that:

PN20

Regarding scrutineering of the certified agreement ballot, we wish to advise Mr Peter Makin.

PN21

MR BUTLER: That is correct.

PN22

MR SMITH: It is him.

PN23

MR BUTLER: He was a replacement, Commissioner, as to Mr Wright's unavailability.

PN24

THE COMMISSIONER: Right. Okay. Now, with what authority does
Mr Makin have to sign the agreement?

PN25

MR SMITH: Well, in a sense, Commissioner - I will go back one step. There is no requirement in the Act for any employee to sign an LK agreement.

PN26

THE COMMISSIONER: Right. The Commission has got to be satisfied, take that as it might be right. I only have one statutory declaration and that's from an employer.

PN27

MR SMITH: Yes.

PN28

THE COMMISSIONER: How am I satisfied that the employees also endorse the process or support the process that was followed and verified that the process identified in the employer stat dec was the right process and validates that?

PN29

MR SMITH: You can be satisfied by the fact of the employer's statutory declaration, Commissioner.

PN30

THE COMMISSIONER: No.

PN31

MR SMITH: There is no requirement - - -

PN32

THE COMMISSIONER: No. I don't operate that way, Mr Smith. The way I operate is this, I either have a valid majority of statutory declarations where the agreement has not been negotiated by an employee on behalf of other employees or I have a meeting of employees that authorises an individual to sign a statutory declaration on behalf of the others confirming the employer's statutory declaration, and likewise for the signature of the agreement. Now, I will talk to Mr Craven and Mr Burnett. That doesn't mean to say I won't certify the agreement but I need those to satisfy myself that the employer's statutory declaration is right.

PN33

MR SMITH: Well, Commissioner, we will accommodate your needs in that regard.

PN34

THE COMMISSIONER: Right.

PN35

MR SMITH: But there is nothing in the rules that requires that, that's your own approach.

PN36

THE COMMISSIONER: That is my own approach and it's consistent with the way in which I have certified, as you would appreciate, some many hundreds of agreements, LKs in particular.

PN37

MR SMITH: Yes. Well, we deliberately specifically requested the video link so that there would be two employees here so that you could satisfy yourself as to these matters as far as possible via these employees and they are available for you to ask questions.

PN38

THE COMMISSIONER: All right. Thank you.

PN39

MR SMITH: Thank you, Commissioner.

PN40

THE COMMISSIONER: Mr Burnett and Mr Craven, you have both heard the submission of Mr Smith and I would assume you have heard the comments from the Commission. The statutory declaration signed by Mr Butler says a number of things, says that the employees were advised that if they were members of a union and they wished to have the union represent them that they are entitled to do so. Can you verify that that is correct.

PN41

MR BURNETT: That's right, that's correct. Yes.

PN42

THE COMMISSIONER: And can you verify that the employees are under the very clear understanding that what was proposed was a 170LK agreement?

PN43

MR BURNETT: We were, yes.

PN44

THE COMMISSIONER: Right. And that Mr Makin was the nominated union scrutineer for the ballot?

PN45

MR BURNETT: That's right, yes.

PN46

THE COMMISSIONER: And that the ballot, I think you said was seven in favour and five against. Is that correct?

PN47

MR BURNETT: That's correct again.

PN48

THE COMMISSIONER: And both of you are satisfied that your colleagues understood very clearly the intent of the agreement, that there is no reduction in entitlements and terms and that there is a wages outcome that the employees have accepted.

PN49

MR BURNETT: That's correct, your Honour.

PN50

THE COMMISSIONER: Okay. All right. Thank you. Other than a statutory declaration from somebody who is nominated by the 12 employees to sign that stat dec, I will certify the agreement.

PN51

MR SMITH: Yes. Could that be from one of the two employees who - - -

PN52

THE COMMISSIONER: Well, unless they are nominated by other employees, no. I would prefer a stat dec from somebody - and I think it's a very simple process.

PN53

MR SMITH: Yes.

PN54

THE COMMISSIONER: You get the 12 employees together or if you can't you get as many together as possible, and get them to nominate somebody to sign a statutory declaration on their behalf.

PN55

MR SMITH: I hear you, Commissioner, but there may be a possibility that some of the employees will refuse to engage in that process.

PN56

THE COMMISSIONER: Well, then those that wish to participate in that process.

PN57

MR SMITH: Yes.

PN58

THE COMMISSIONER: I understand the five might say, well, no we are not prepared to do that, but as long as the seven do that voted for it. I am happy with that.

PN59

MR SMITH: So the procedure is that as many employees as are willing to participate nominate one of the employees to sign a statutory declaration and we lodge that with you.

PN60

THE COMMISSIONER: Yes.

PN61

MR SMITH: Yes, we can arrange that.

PN62

THE COMMISSIONER: Do you understand that, Mr Craven and Mr Burnett?

PN63

MR CRAVEN: Yes.

PN64

MR BURNETT: Yes, we do. I have already been elected a representative of the New South Wales employees in a consultative committee under the - - -

PN65

THE COMMISSIONER: No, we won't go there. We won't go there in terms - we have had this discussion before. There is a difference between the consultative committee and a negotiating committee or a negotiating person, if you like. There is a difference. Okay. And we have had this debate with the company before.

PN66

MR BURNETT: Our negotiations were conducted outside of the committee, face to face all employees and managers.

PN67

THE COMMISSIONER: All I need is a statutory declaration signed by somebody who was nominated by the majority of people to say that they are authorised to swear that statutory declaration on their behalf. Okay.

PN68

MR BURNETT: I think so.

PN69

THE COMMISSIONER: Okay. All right. Having said that and having received the undertakings that such a statutory declaration would be provided, the Commission is prepared to certify the agreement which shall be known as ETRS Proprietary Limited NDT Enterprise Agreement New South Wales 2005. The Commission is satisfied that all provisions of section 170 have been complied with. The Commission shall certify the agreement which shall operate from the date of certification which is today's date, 15 February 2005, and the agreement shall have a nominal expiry date of three years from the date of certification. Thank you very much. No further business. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [4.45PM]