AG2005/6687, Transcript of Proceedings [2006] AIRCTrans 177 (13 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14167-1

SENIOR DEPUTY PRESIDENT ACTON

AG2005/6687

APPLICATION BY SILCAR A PARTNERSHIP OF THIESS PTY LTD AND SIEMENS LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/6687)

MELBOURNE

9.23AM, FRIDAY, 28 OCTOBER 2005

PN1

MR M CUSACK: I seek leave to appear on behalf of Silcar and I have with me MR R WATLING from the company and MR C TOMLINSON also from the company, Mr Tomlinson being the employee representative if the Commission pleases.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes Mr Cusack.

PN3

MR CUSACK: If the Commission pleases, may I say for the record that the company appreciates the efforts of the Commission in listing this at short notice and the efforts of both your own staff and the registry staff to facilitate the receipt of the documentation to enable this matter to be brought on quickly. It is an application your Honour, to certify an agreement pursuant to section 170LK of the Act. The Commission will have on its file the signed copy of the agreement, it will have also signed copies of the statutory declarations of both Mr Watling and Mr Tomlinson. In essence your Honour, we would be reliant on the content of those statutory declarations to say that the requirements of the Act to enable certification of the agreement have been satisfied.

PN4

You will find within the statutory declarations that the gentlemen concerned who accompany me have indicated that there was a notice of intention to reach an agreement circulated to the employees. That notice was given more than fourteen days in advance of the making of the agreement. The notice did in fact advise employees that if they were members of a relevant union and the union was entitled to represent them, that they may request that union to represent them in meetings. The company was not alerted to any requirement of that nature. The document as circulated to the employees was in fact the document that was subject to consultation, it was in fact ultimately the document that was voted upon. A vote of six of the seven employees concerned took place, the seventh being on leave and unable to attend the vote.

PN5

The vote indicated a consensus to make the agreement in the terms sought the agreement specifies its duration consistent with the requirements of the Act. The other contents of the agreement we say are consistent with the requirements of the Act. It contains a provision for procedures for preventing and settling disputes. There is in our submission, no evidence of coercion and there is certainly no discriminatory provision in the agreements. On those basis we would say that the Commission should be satisfied that the requirements of the Act have been satisfied. In relation to no disadvantage, it is quite apparent we would submit from the content of the agreement that there is no question of disadvantage in the terms and conditions proposed therein, if the Commission pleases.

PN6

THE SENIOR DEPUTY PRESIDENT: Mr Cusack clause 14 purports to impose obligation on the union or unions, they’re not party to this agreement are they?

PN7

MR CUSACK: You are correct your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: You would give an undertaking that that clause will not impose any obligations?

PN9

MS CUSACK: I do give that undertaking your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Similarly, clause 17 to the extent that it is has a different arrangement to what’s available under the Act, which impose obligations on the union officials, I assume you give a similar undertaking that that clause does not impose any obligation on the union officials.

PN11

MR CUSACK: I give that undertaking your Honour and of course from a practical point of view, in the absence of the union being party to the agreement, it would be an obligation that would be impossible to enforce in any event.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. I just wanted to underline that you understood.

PN13

MR CUSACK: I understand that your Honour, to the extent that one can make excuses at this stage of proceedings, the intention of the parties clearly was to reflect arrangements that have been in existence and there was no intention to change those arrangements and I guess if one were wise in retrospect we would have taken more care with those clauses. However, to the extent that it is necessary I give the undertakings on behalf of the company.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes thank you. Mr Tomlinson do you want to say anything?

PN15

MR TOMLINSON: No your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Watling?

PN17

MR WATLING: No your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: Well, having regard to the material contained in the file on this matter and also the submissions put to me including the undertaking given, I am satisfied that I should certify the agreement known as the Western Port Electrical Certified Agreement (Silcar) 2005-2008. I am satisfied that to do so would be consistent with the requirements of the Act and the regulations. The certification of the agreement will come into force from today’s date and remain in force until 27 October 2008.

<ADJOURNED INDEFINITELY [9.30AM]