AG2004/8648, Transcript of Proceedings [2005] AIRCTrans 48 (4 January 2005)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 9536

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

AG2004/8648

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Australian Workers' Union - Victoria
Branch and Another for certification of the
Cleanevent Australia Pty Ltd Enterprise
Agreement 2004

MELBOURNE

12.08 PM, MONDAY, 20 DECEMBER 2004

PN1

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN2

MR B. McNAB: I appear on behalf of Cleanevent.

PN3

MR J.W. NOLAN: I seek leave to appear for the Liquor, Hospitality and Miscellaneous Workers Union, to intervene.

PN4

THE COMMISSIONER: Any opposition to Mr Nolan's application for - - -

PN5

MR WINTER: No opposition, Commissioner.

PN6

THE COMMISSIONER: Good. Leave is granted. This is an application from the Australian Workers Union and Cleanevent Australia Proprietary Limited for the certification of an agreement reached under section 170LJ with the employees of Cleanevent. Now, I look to you to, Mr Winter, initially to take us through it.

PN7

MR WINTER: Thank you, Commissioner. You may recall, Commissioner, that this agreement, or another agreement was before you approximately three months ago. The agreement itself was withdrawn. There was a number of discussions that took place between the union, being the AWU, also the LHMWU in regard to coverage of the agreement and the contents of the agreement. Originally the agreement, when it went to original vote, was going to be a joint union - both unions and company agreement. After some discussions between the AWU, the LHMU and the company, it was agreed that a new agreement would be prepared and submitted to employees for a vote.

PN8

That new agreement was between the company and the Australian Workers Union. The LHMU have requested that the Australian Workers Union give a commitment before the Commission in relation to the current demarcation arrangements that exist between the two unions. The Australian Workers Union is prepared to give that commitment that this agreement shall be read in conjunction with the demarcation decision that was handed down by Senior Deputy President Williams. I do have a copy of that demarcation - - -

PN9

THE COMMISSIONER: Just give us the reference will be sufficient for the record.

PN10

MR WINTER: It is print number P9648, decision number 2007 of 1997, decision by Senior Deputy President Williams. Now, some of the provisions within this decision is to be included in the old award that covers both unions. That demarcation arrangement was removed from the award as part of the simplification process but, under these proceedings, the Australian Workers Union is prepared to give the commitment in accordance with 170LV that the agreement, should it be certified before you, shall be read in conjunction with that decision and that the AWU will still abide by that decision.

PN11

THE COMMISSIONER: Good. Now, Mr Winter, what can you tell me about the agreement itself? Does it meet the no disadvantage test in your view?

PN12

MR WINTER: It may be appropriate at this time that the other union was going to give - - -

PN13

THE COMMISSIONER: Yes, okay. Perhaps I could turn to the LHMU with that - well, before I do so, perhaps I should look to Mr McNab. Do you also give the undertaking that has just been given by Mr Winter on the behalf of the AWU?

PN14

MR McNAB: Yes, I do, Commissioner. Yes, I do.

PN15

THE COMMISSIONER: So you are giving an undertaking on behalf of Cleanevent, Mr McNab, to respect the demarcation agreement which has previously been dealt with by Senior Deputy President Williams.

PN16

MR McNAB: Yes, Commissioner.

PN17

THE COMMISSIONER: Good. Thanks, Mr McNab. Now, Mr Nolan, is that sufficient for your purposes?

PN18

MR NOLAN: Yes, it seems to us that that clarifies our areas of concern, Commissioner. We would simply seek to emphasise that, as we understand the undertaking that has been given under section 170LV, that would mean in practical terms that the agreement would be applied in the same manner in which the previous agreement was applied, and that was - it took its operation in part from the demarcation agreement about which Mr Winter spoke and which was embodied in clause 3 of the 1998 award. And I think he indicated that that clause was taken out as a result of the award simplification process. But so long as it is clear to all that the new agreement would apply in a manner that was consistent with that pre-existing demarcation, that would satisfy the concerns that we have.

PN19

THE COMMISSIONER: Thank you, Mr Nolan. Now, Mr Winter and Mr McNab, do you both accept that proposition put by Mr Nolan?

PN20

MR McNAB: Yes, Commissioner.

PN21

MR WINTER: Yes, Commissioner.

PN22

THE COMMISSIONER: Thank you.

PN23

MR NOLAN: Well, that being so, might we be excused, Commissioner?

PN24

THE COMMISSIONER: You can, Mr Nolan. You can go back to your normal business.

PN25

MR WINTER: Thank you, thank you. This is my normal business.

PN26

THE COMMISSIONER: And the same with you, Ms Frenzel.

PN27

MS R. FRENZEL: This is my normal business.

PN28

MR NOLAN: I think disputes with the AWU around Christmas time are a part of my normal business, I have to say, Commissioner.

PN29

THE COMMISSIONER: Well, that is very unfortunate then, Mr Nolan.

PN30

MR NOLAN: It is good that this one has been resolved so amicably.

PN31

THE COMMISSIONER: Yes.

PN32

MR NOLAN: Thank you, Commissioner.

PN33

THE COMMISSIONER: There is a first time for everything, Mr Nolan.

PN34

MR NOLAN: Well, that is true. Thank you, Commissioner.

PN35

THE COMMISSIONER: Good. Now, Mr Winter, my question: do you generally assert that this agreement meets the no disadvantage test?

PN36

MR WINTER: Yes, we believe it does and - - -

PN37

THE COMMISSIONER: Good, that is sufficient, Mr Winter. Just a general question, I am looking for a yes, or basically a brief answer. But the flexibility provisions: are they anticipating that flexibility will be up or will it be both and down?

PN38

MR WINTER: We see that the flexibility provision will be basically up; that there will be - during different events there will need to be discussions between the parties on how to best operate the agreement in relation to those events. They include things like the Commonwealth Games, etcetera.

PN39

THE COMMISSIONER: Yes. Well, there is little concern about flexibility provisions which improve conditions of employment, but to have an agreement which will allow an employer to give less by way of remuneration or conditions to employees without having to seek a variation of the agreement could be a problem, and I just hope the parties will note that.

PN40

MR McNAB: That is understood, Commissioner.

PN41

THE COMMISSIONER: Good. Now, have you anything else to say, Mr Winter?

PN42

MR WINTER: Unless you have any further questions, I would rely on the statutory declarations. It has been for a re-vote and that is shown in the statutory declarations.

PN43

THE COMMISSIONER: Yes, and it was solidly supported, as I recall.

PN44

MR WINTER: Yes, it was overwhelming.

PN45

THE COMMISSIONER: Yes.

PN46

MR WINTER: We can provide that information if you require it.

PN47

THE COMMISSIONER: But I am pleased to note that I think the retrospective payments have already been made to a number of employees.

PN48

MR WINTER: Only to the full timers. The casuals are waiting for their Christmas present at the moment.

PN49

THE COMMISSIONER: Are they? Well, there you go. It is even more important that we get this done. Mr McNab, anything else to say?

PN50

MR McNAB: Nothing further to add, Commissioner.

PN51

THE COMMISSIONER: Good, thank you. Well, having considered the submissions of the parties and the statutory declaration - of course, I take note of the undertakings given by the LHMU - sorry, the AWU and the company to the LHMU, but I am satisfied that the agreement meets the relevant requirements of the Act. The employees have been given the relevant notice of the intention to enter into the agreement. The terms of the agreement have been explained in an appropriate way. The agreement has been approved by a valid majority of employees, and lodged within the time period prescribed.

PN52

The Commission is satisfied the agreement meets the no disadvantage test. It contains the necessary dispute settlement procedure, specifies a nominal expiry date in accordance with the Act's requirements, and is not inconsistent with the decisions of the Commission in regard to matters pertaining between the employee and employer. I, therefore, propose to certify the agreement as sought by the parties. This matter is adjourned.

ADJOURNED INDEFINITELY [12.17pm]