AG2005/2561, Transcript of Proceedings [2005] AIRCTrans 747 (29 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 10955-1

COMMISSIONER HOFFMAN

AG2005/2561

APPLICATION BY AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/2561)

BRISBANE

10.57AM, THURSDAY, 17 MARCH 2005

Adjourned sine die

PN1

MR J LEE: I appear for Transfield Services Australia Pty Ltd.

PN2

MR B MACKIE: I appear for the Australian Rail, Tram and Bus Union.

PN3

THE COMMISSIONER: Thank you. Mr Lee?

PN4

MR LEE: Thank you, Commissioner. Commissioner, this is an application made under Division 2 of Part VIB of the Act for the certification of an agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the RTBU and endorsed by the valid majority of the work force covered by the agreement on Tuesday 8 February 2005. The parties have filed statutory declarations, which I believe meet all the requirements of the Act and the rules of the Commission. In accordance with section 170LT(2) and (3), the agreement does not disadvantage the employees covered by it. Also, at clause 11 of the agreement there is an avoidance of disputes procedure in accordance with section 170LT(8). The agreement has a nominal expiry date in accordance with section 170LT(10) and that expiry date, being clause 5, 28 January 2005.

PN5

It is the company's submission that the agreement meets all the requirements of sections 170LJ and LT. It is the company's submission that the agreement and supporting documentation, which were filed in the registry on 28 February 2005, which meet the statutory requirement, meet all the requirements to satisfy the Commission that the agreement is worthy of the Commission's approval. If the Commission pleases.

PN6

THE COMMISSIONER: Yes, thank you. Yes, Mr Mackie?

PN7

MR MACKIE: Thank you, Commissioner. The document in front of you today was negotiated with the company Contractual Services. It has a valid majority of the employees at Transfield at the Brisbane Airport, and we believe it also meets the requirements of the rules of the Commission. Thank you, Commissioner.

PN8

THE COMMISSIONER: Can you indicate to me how you see clause 30 of the proposed agreement as pertaining to the relationship between employers and employees?

PN9

MR LEE: Yes, Commissioner. As that clause indicates, it is the company's responsibility to ensure that were we to use subcontractors from time to time in performing work in similar like nature to what our employees' perform, that the subcontractors' employees will not be disadvantaged in, against the terms and the classification structure, so on balance they will not be disadvantaged. It is not uncommon - - -

PN10

THE COMMISSIONER: How does that pertain to the relationship between Transfield Services Ltd and its employees?

PN11

MR LEE: Well, it pertains to the relationship based on us having industrial harmony at the site.

PN12

THE COMMISSIONER: I understand all the practicable ramifications but I have to be concerned with the ramifications from a legal perspective as well.

PN13

MR LEE: Well, Commissioner, the company has been challenged on this on numerous occasions and what we have done is refer the Commission to the decision of Senior Deputy President Watson in Southgate Hotel Management and Others in print 935830, which was brought down on 7 August 2003, where at paragraphs 22 and 23 - - -

PN14

THE COMMISSIONER: That would have been prior to the Electrolux decision?

PN15

MR LEE: That would have been prior to the High Court decision, yes, Commissioner.

PN16

THE COMMISSIONER: Yes. And what did SDP Watson say at that stage?

PN17

MR LEE: His Honour said at paragraphs 22 and 23:

PN18

The parties contend that subclause 31.2 is to be interpreted as placing an obligation upon the employer party to require contractors to comply with site occupational and health and safety provisions and require contractors to provide a minimal level of remuneration and employment conditions not less than the relevant safety net award applicable to the hotel employees.

PN19

The obligation arises from subclause 31.2. It was said to be upon the employer part of the agreement to require these matters of contractors engaged by them. He went on to say at paragraph 23:

PN20

If the subclause is interpreted in that way as placing an obligation upon the employer party to the agreement I am satisfied that it does pertain to the employment relationship between the employee parties to ...(reads)... connected to the relationship between the hotels, employers and their employees.

PN21

THE COMMISSIONER: Can I just interrupt you. Did you bring a copy of that with you?

PN22

MR LEE: No, Commissioner, but I can certainly have a copy to you by the end of the day.

PN23

THE COMMISSIONER: Yes, if you would. The matter stands adjourned to a time and date to be fixed.

<ADJOURNED INDEFINITELY [11.04AM]