AG2004/5086, Transcript of Proceedings [2005] AIRCTrans 616 (10 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10703

VICE PRESIDENT ROSS

AG2004/5086

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY CHECKPOINT METO PTY LTD AND ANOTHER
(AG2004/5086)
National Electrical, Electronic and Communications Contracting Industry Award 1998

MELBOURNE

11.49AM, TUESDAY, 01 MARCH 2005

Continued from 15/7/2004

PN1

MR D SULLIVAN: I appear for the Australian Industry Group on behalf of Checkpoint.

PN2

MR G BORENSTEIN: I appear for the CEPU, along with MR S LEAN, who is the relevant organiser.

PN3

THE VICE PRESIDENT: Thanks Mr Borenstein. Mr Sullivan, my apologies for this matter sort of disappearing into the ether. On the last occasion it was put before me and I indicated on transcript that there was a Full Bench, decision expected. That was ultimately handed down on 13 September, last year, in print PR951805 in the Alcheringa matter, but my recollection was that may not directly deal with the issue you have. As I understand it, you say that you have an agreement with your men and to use the vernacular, they're reneging on it, and you say there is an agreement because the delegates on site have reached an agreement with the relevant employers. Is that right?

PN4

MR SULLIVAN: Yes, your Honour.

PN5

THE VICE PRESIDENT: The union's argument isn't really about the Alcheringa point, although they might want to agitate that, but I may need to do that before a Full Bench, but their argument is there was no agreement at all, presumably because the delegates weren't authorised to enter into an agreement on behalf of the union. So there was no agreement with the organisation, as opposed to an agreement you may have had with individuals on site. Is that the essence of the argument?

PN6

MR SULLIVAN: Basically, your Honour. Our view is the stewards are still talking to the union through the agreement and the union didn't choose to do anything until after the vote was taken so our view was they were party to it.

PN7

THE VICE PRESIDENT: Well look, really the purpose of today is to see where the matter is up to. If there is still no agreement about it, it will need to be programmed and you'll need to bring forward an argument in relation to the points you want to argue.

PN8

MR SULLIVAN: Yes, your Honour. We would ask that there is another issue running concurrently with it, where the union have chosen to go to the own path and take industrial action on this company over the EBA, and - well there is a 99 listed tomorrow before Senior Deputy President Ives, at 3 o'clock and we've asked for it to be delayed and we think it should be run concurrently, because it's the same issue. If it's found that the agreement - there is agreement made, will make any action unprotected, therefore it shouldn't be occurring, in our view. So we think it should be heard together, or at the same time, to save the same argument. Up until then the union - our view is the union should stop the action and leave it as it is until we've worked through it.

PN9

THE VICE PRESIDENT: Well, I don't want to get in to the - if that matter is listed before DP Ives, then I'll leave him to deal with the industrial action question. Is there anything you wanted to say, Mr Borenstein?

PN10

MR BORENSTEIN: Your Honour, just in respect of that, we have lodged a section 99. It's over the response by the company to our industrial action which was to take the cars and mobile phones off their employees and those employees are taking industrial action and changing hours of work and injuring them because they're taking protected industrial action. So, there will be - that doesn't relate to this issue of whether or not there is a certified agreement and whether an agreement should be certified.

PN11

THE VICE PRESIDENT: No, but the issue in common is the parties are the same.

PN12

MR BORENSTEIN: That's right.

PN13

THE VICE PRESIDENT: What's the industrial action in relation to? I'm not asking you to make any admissions about whether - - -

PN14

MR BORENSTEIN: Seeking a certified agreement, but no 127 or anything like that has been filed by the company.

PN15

THE VICE PRESIDENT: All right, thanks. Well look, given that the matter before DP Ives raises the question of a certified agreement between the company. I hear what you say Mr Borenstein, the issues are distinct, but the parties are the same and I think the central issue is the nature of any agreement that applies in relation to this workplace. Having regard to those similarities, I think the same person should deal with the matter. I'll refer the file to DP Ives and I'll advise him as to what has taken place this morning and he can deal with the further programming in relation to your matter, Mr Sullivan, and it will be a matter for him about how the matters go, whether they are in parallel or however it's done.

PN16

Again, my apologies for letting this matter slip. I suppose we thought since there was no noise coming from anyone the problem had disappeared. Sadly, that didn't turn out to be the case, nothing further? I will adjourn.

<ADJOURNED INDEFINITELY [11.54PM]