AG2005/2835, Transcript of Proceedings [2005] AIRCTrans 632 (15 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10800

COMMISSIONER GAY

AG2005/2835

s.170LS - agreement about industrial dispute (division 3)

APPLICATION BY AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-VICTORIAN BRANCH AND OTHERS
(AG2005/2835)
Metal, Engineering and Associated Industries Award 1998

MELBOURNE

10.21AM, MONDAY, 28 FEBRUARY 2005

PN1

MS C CHEW: I appear on behalf of the Australian Manufacturing Workers Union.

PN2

MR J DOWE: I appear on behalf of Konecranes.

PN3

THE COMMISSIONER: Yes, Mr Dowe. Thank you.

PN4

MS CHEW: Thank you, Commissioner. We have here before us an agreement made pursuant to section 170LS of the Workplace Relations Act. We rely on our statutory declaration filed with the Commission. The one outstanding issue that we would like the Commission to pay particular attention to is that the agreement was lodged out of time. The vote was taken on 6 October and the documents were filed with the Commission on 28 January, making the documents approximately one and a half months out of time. In any case, I have just consulted with the employer.

PN5

The employer confirms that there has been no change to the composition of the workforce. He has indicated that there has been an additional employee but in our submission that one person would not change the majority of the vote that was undertaken on 6 October. In other respects we submit that the agreement otherwise complies with the Workplace Relations Act in that it contains a dispute settlement procedure at clause 19, a nominal expiry date on 31st March 2006 and is not of a disadvantage to the employees.

PN6

We also submit that the agreement complies, is consistent with the principles espoused in the Electrolux case and unless the Commission has any questions, we would ask for the Commissioner to exercise your discretion bearing the time limit under section 111(1)R, but in all the other respects we submit that the agreement should be certified.

PN7

THE COMMISSIONER: Ms Chew, what is the date from which the agreement operates?

PN8

MS CHEW: The date of operation is blank.

PN9

THE COMMISSIONER: What date were the employees told when they voted on the agreement?

PN10

MS CHEW: No, unfortunately I wasn't there, but perhaps - - -

PN11

MR DOWE: It was from this date.

PN12

MS CHEW: Date of certification?

PN13

THE COMMISSIONER: You should stand, Mr Dowe.

PN14

MR DOWE: Sorry. Yes, it was agreed that the date would be from the date of certification.

PN15

THE COMMISSIONER: Okay. We're going into conference about this agreement. We will go off the record now.

<SHORT ADJOURNMENT [10.24AM]
<RESUMED [10.38AM]

PN16

THE COMMISSIONER: We have had the benefit of a conference in this matter. The transcript will reveal how long the conference has taken and the position is, as I understand it, Ms Chew, that to avoid any possible uncertainty about the effect of clause 25.3, it is proposed that, and it is in further clarification of it, that by way of an undertaking, so it couldn't be misunderstood or misapplied in the field, you will, the parties that is, will set down on a piece of paper and sign the piece of paper and forward to the Commission by way of an undertaking as to the agreement's operation in actuality, a statement to this effect.

PN17

The company will recognise the right of all employees to be represented by an eligible union/s in relation to all matters covered by the agreement and the award, by this agreement and the award.

PN18

And by that means undertake that that is how that sub-clause of the renegotiation clause would apply, and that that additional undertaking, reduced to writing, would be appended to copies circulated in the work place. Is that right?

PN19

MS CHEW: Yes. Thank you, your Honour. I think this statement clarifies the intention of the parties in respect of that clause.

PN20

THE COMMISSIONER: Yes. All right. And you have also, in our conference, highlighted that there is a, really a typographical imperfection in the arrangement page and that that can be remedied by providing a clean page and I do say that that can be done because it is clear that it is the arrangement page of an earlier draft which was not put before the employees and it is true, of course, that what comes for certification should be that which was put. So it can't be that page. All right. Well now, Mr Dowe, is that also your view, that we should adopt that course, or the parties should?

PN21

MR DOWE: Yes. We are in agreeance with that.

PN22

THE COMMISSIONER: Yes. Well, thanks very much. All right. And of course, it is true that the CPU are unable to attend. They have also been unable to advise my associate of their incapacity to attend today, and Ms Chew, I look to you as has happened in the past, to ask the representative of the CPU please to contact my chambers to let me know that they continue to identify with the agreement, that nothing has happened in the intervening period and in the absence of having heard from them, of course, one can't be sure about that.

PN23

MS CHEW: Certainly.

PN24

THE COMMISSIONER: But of course, in the light of what you and Mr Dowe have thought was a practical solution, it will be important for the CPU to also identify with that because it is on that basis that I will certify the agreement and in the event that the agreement isn't forthcoming from them, it will be necessary for the matter to come back on. All right.

PN25

MS CHEW: Yes, I understand that.

PN26

THE COMMISSIONER: Yes. Thank you very much, Ms Chew. Well, I do now proceed with the certification of this agreement under section 170LS and it is the Konecranes Victorian Operation Collective Bargaining Agreement 2004 and it has as its parties Konecranes, the CPU and the AMWU to use the short hand. The company is defined as that which is operating at Brooklyn and the agreement is, Mr Dowe tells me and was too in the mind of the employees in explanation given to them, is to operate from the date of certification which is today's date, will be today's date subject to the conditional comments I will make shortly.

PN27

And to expire on 31st March 2006. Now the agreement does provide benefits, it doesn't disadvantage employees. It does have a dispute settling provision and subject to the undertaking given in respect of 25.3, does in my view, satisfy and not offend the sections of the Act as are necessary. And for those reasons I will certify the agreement subject only to the caveat that I will receive the information from the employee - from the parties, and I do accept the undertaking given, and most particularly on the basis that it will be attached to each copy of the agreement in the field and if it is hanging on a noticeboard or available to employees, then the undertaking is there for employees to understand how it is, that that section of the agreement will be applied.

PN28

And for those reasons, I will certify the agreement and when I have received the information from the CPU and the company's signed undertaking, I will place it with the agreement and I will sign an instrument certifying it which will show that the agreement is certified with effect from today's date, having regard to the period of operation of the agreement to which I have already referred. Thank you, we will call on the next matter.

<ADJOURNED INDEFINITELY [10.43AM]