AG2005/2571, Transcript of Proceedings [2005] AIRCTrans 860 (7 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11054-1

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2005/2571

APPLICATION BY BOC LIMITED AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/2571)

SYDNEY

11.42AM, WEDNESDAY, 30 MARCH 2005

PN1

MS V PAUL: I appear for Australian Industry Group on behalf of BOC Limited, with me MR MARK FLETCHER from the company.

PN2

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers' Union.

PN3

MS N KASTOUN: I appear on behalf of the Communications Electrical and Plumbing Union.

PN4

THE SENIOR DEPUTY PRESIDENT: Who wants to go first on this matter?

PN5

MS PAUL: Your Honour, this is an application made under Division 2 of Part VIB of the Act for certification of the agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the AMWU, AWU and CEPU on behalf of employees covered by the Metal Engineering and Associated Industries Award 1998. Firstly, sir, we say that we seek for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21 day limit prescribed in section 170LM(2). The Commission, I am sure, will have noted that whilst the agreement was approved by the employees on 7 January 2005, it was not filed until 14 March which obviously means that it's been unfortunately late.

PN6

We say, sir, that the delay was caused with respect to the AWU initially refusing to sign the actual agreement after the vote had been taken, and then administrative issues arising from having to make sure the appropriate stat decs et cetera were appropriately signed, and matters filed before the Commission. We say, sir, that notwithstanding the fact that there's been no material change to the work force, and there is no detriment to the employees with respect to the delays, and as such we seek that the Commission exercise the discretion to grant the extension of the 21 day limit to allow for the certification of this agreement.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. I notice that this agreement terminates two bargaining periods. Could I ask if there was industrial action taken?

PN8

MS PAUL: No, sir, there was no industrial action on my instructions.

PN9

THE SENIOR DEPUTY PRESIDENT: Okay. So you're not concerned about the failure to comply with the 21 days negating any protection for industrial action during the negotiation period?

PN10

MS PAUL: No, sir.

PN11

THE SENIOR DEPUTY PRESIDENT: Obviously the company is not, but from the union point of view, that's not an issue as there was no industrial action, obviously.

PN12

MR MORRISON: It's my instructions that there was no industrial action over the making of this agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Morrison, while you're on your feet, anything you want to add in relation to the lateness issue, or Ms Kastoun?

PN14

MR MORRISON: Nothing more I can add except also the union would request the Commission exercise its discretionary powers under section 111(1)(r) of the Act which goes to the late filing. It's my understanding that the work force has remained constant since the date and therefore we would support Ms Paul's submission.

PN15

MS KASTOUN: Your Honour, we would also support the submissions.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, just while we're dealing with lateness, I also note that the agreement is stated to operate from 11 May 2004 and to remain in force until 10 May 2007. There is attachment B which sets out a remuneration schedule. What's the effect of that clause about the agreement operating from 11 May, but under the Act it not being certified until today?

PN17

MS PAUL: Sir, the effect is that, to put it in simple terms, is that there would
be - we see the certification occurring as at today, and the force of certification obviously on the agreement as at today, but for the purposes of any payment, the company has already started making payment to the terms of the agreement as at 11 May which, in simple terms, would be a back pay issue, sir, which the company has acceded to as at 11 May '04.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. Anything anyone else wants to add?

PN19

MR MORRISON: Nothing further from us.

PN20

THE SENIOR DEPUTY PRESIDENT: Okay. Given what's been said I will exercise whatever discretion is available to the Commission to extend the date of full lodgement to the actual date. Having said that, back to you, Ms Paul.

PN21

MS PAUL: Thank you, sir. The parties have prepared statutory declarations, sir, which we believe meet all the requirements of the Act, regulations and rules of the Commission. We further submit that the requirements of section 170LJ and LT have been met, namely that the agreement we submit does not disadvantage the employees and refer your Honour to items 7.5 of the statutory declaration. A valid number of employees genuinely approved the agreement on 7 January '05 and we refer your Honour to item 6.2 of the statutory declaration. Access to the agreement and explanation of the terms of the agreement occurred with the requirements of section 170LR and was appropriate having regard to the particular circumstance of the employees.

PN22

To that end we also refer your Honour to item 6.6 of the statutory declaration. The agreement contains a dispute settlement procedure clause at 7.3. The period of operation of the agreement is set out in clause 3.1, where it is stated the agreement will expire on 10 May 2007. We do note, sir, that clause 10 of the agreement, being the union access clause, has some vagueness associated with that, and would seek to put for the record that the company sees that clause as meaning a right of entry which is confined to entry for the purposes of investigating and securing compliance with any relevant award, the agreement or other matters that pertain to the relationship between employers and employees. And with that, sir, we therefore request that the Commission certify the agreement in the terms sought.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Morrison?

PN24

MR MORRISON: Yes, your Honour, firstly with regard to clause 10, the AMWU supports Ms Paul's submission as to clarifying the basis of the wording of clause 10 and in relation to the right of entry. As to the agreement itself, the AMWU supports the certification from today's date. Unless there are any further questions, that is it.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Kastoun?

PN26

MS KASTOUN: Your Honour, the CEPU supports the submissions made today and we also support this application for agreement.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you very much, that's short and sweet. I guess there's nothing further you want to put given what's been said, Ms Paul?

PN28

MS PAUL: No, sir.

PN29

THE SENIOR DEPUTY PRESIDENT: This is an application under section 170LJ of the Workplace Relations Act 1996 for certification of an agreement known as the BOC Limited Agreement New South Wales Bulk Plant Operations 2004. I've reviewed the statutory declarations filed by the parties to the agreement and the content of the agreement. I've also taken note of the undertaking given on transcript about the meaning of clause 10 and will include that in the preface to the certificate which I propose to issue. As I say, on the basis of the material and the submissions made this morning and taking account of the undertaking given, I'm satisfied that the relevant requirements of the Act and Rules have been met.

PN30

So in accordance with section 170LT of the Act, the Commission certifies the written agreement. It shall come into force from today and remain in force until 10 May 2007. A certificate will issue to that effect. Thank you very much and we'll adjourn.

<ADJOURNED INDEFINITELY [11.51AM]