AG2006/2395, Transcript of Proceedings [2006] AIRCTrans 214 (27 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14176-1

COMMISSIONER DANGERFIELD

AG2006/2395

APPLICATION BY TRANSPORT WORKERS’ UNION OF AUSTRALIA & TOLL TRANSPORT PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/2395)

ADELAIDE

9.33AM, THURSDAY, 09 FEBRUARY 2006

PN1

MR R WYATT: I appear on behalf of the Transport Workers' Union of Australia.

PN2

MR M POINTER: I am from Toll AutoLogistics Components Division South Australia.

PN3

THE COMMISSIONER: Thank you. What's your position with the company, Mr Pointer?

PN4

MR POINTER: State operations manager.

PN5

THE COMMISSIONER: Thanks for that. Yes. I will hear from Mr Wyatt first.

PN6

MR WYATT: Yes sir and if the Commission pleases, before I go into my submission there was a mistake within the statutory declaration. I believe there is some correspondence come through. Do you want me to deal with that now or after?

PN7

THE COMMISSIONER: That has been dealt with. I now have - the mistake you are referring to, is that originally on the file there were statutory declarations referring to - at 6.3 I think that the total number of employees covered by the agreement was only four. It is in fact 84 and that was obviously some sort of typographical error and I now have on file two corrected statutory declarations in that respect so I am satisfied with that.

PN8

MR WYATT: If the Commission pleases. Before the Commission today is an agreement signed by Mr Wayne Hunt for the company. Mr John Allen the Federal Secretary and Mr Alex Gallagher, the branch secretary which has been lodged with the Commission under Division 2 section 170LJ of the Australian Workplace Relations Act 1996. The Transport Workers' Union is the organisation legally entitled to represent the interests of the employees covered by the agreement.

PN9

The Transport Workers' Award 1998 and the Transport Workers' Long Distance Drivers Award 2000 are the awards which underpin the agreement. The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declarations signed by Mr Allen for the union and Mr Hunt for the company. The agreement does not in relation to the terms and conditions of employment disadvantage the employees who are covered by the agreement. The agreement at clause 30 includes procedures for preventing and settling disputes between the parties.

PN10

The agreement provides for consultation with employees in relation to any changes that may affect those employees. The agreement applies only to part of a single business. Employees covered by this agreement have been consulted at meetings conducted at the work site. Draft copies of the agreement were circulated to employees and a ballot was conducted with a valid majority of employees voting in favour of the agreement. The total number of employees covered by this agreement is 84. In respect to section 170LT(7) of the Act there is one relevant employee to be considered and that is a person under the age of 21.

PN11

Pursuant to Part VIB of Division 4 section 170LT of the Act we seek the Commission to certify an agreement referred to as the Toll AutoLogistics Components South Australia Agreement 2006 operative from today's date and expiring on 31 December 2008. If the Commission pleases.

PN12

THE COMMISSIONER: Thanks for that, Mr Wyatt. Mr Pointer, anything you wish to add?

PN13

MR POINTER: Yes Commissioner. Just before you, you have a stat dec sworn by Wayne Hunt and the amendments to one myself. Just to say that the requirements of the Act have been met accordingly and we ask that the agreement be certified.

PN14

THE COMMISSIONER: Yes. Thanks for that. Well I can indicate that there are - I have got the statutory declarations on file which are both consistent. I did note in regard to those statutory declarations, first of all the correction in regard to the number of employees, we are in fact dealing with 84 employees here and that is now reflected in the statutory declarations.

PN15

The employer stat dec at 7.7.1 did not actually specify the disputes clause, not that that matters, the union stat dec specified it appropriately as clause 30 and Mr Wyatt, I noted that the union's statutory declaration at 7.9 does not actually specify that the agreement replaces another one. Again not that that matters but as long as you can confirm what is in Mr Hunt's statutory declaration which is that the agreement does in fact replace the TWU and Toll AutoLogistics South Australia's Enterprise Agreement 2003. Is that the case?

PN16

MR WYATT: If the Commission pleases. That is correct.

PN17

THE COMMISSIONER: Yes. I mean I thought it was fairly obvious that that was the case but it is just that the union declaration just didn't say anything about that but just so long as we all know that it did in fact replace that.

PN18

MR WYATT: It could be that or it was close to Christmas and - - -

PN19

THE COMMISSIONER: Yes. I can understand. Well that's fine. Having clarified those matters I can indicate that this application for certification of an agreement is filed under Division 2 of Part VIB of the Act. I am satisfied firstly that the agreement in every respect does pertain to the relations of the employer and employees in their respective capacities as such and hence complies with section 170LI of the Act.

PN20

The application is underpinned by statutory declarations from Wayne Hunt, the divisional General Manager of AutoLogistics for Toll Transport Pty Ltd - the General Manager AutoLogistics for Toll Transport Pty Ltd, the employer in this matter and John Allen, Federal Secretary of the Transport Workers' Union of Australia. Those declarations are now consistent. They are in order and with one or two slight omissions that I have referred to today they are fine for the purposes of supporting this application.

PN21

Having heard from the parties today I am firstly satisfied that the no disadvantage test has been satisfied and in this respect I have compared the provisions of the agreement with the provisions of the Transport Workers Long Distance Drivers Award 2000 and the Transport Workers' Award 1998. I note that the agreement at clause 30 includes procedures for preventing and settling disputes between the parties. On the material before me I am satisfied that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate.

PN22

Accordingly the Commission certifies the Toll AutoLogistics Components South Australia Agreement 2006. Today's date, 9 February 2006 will be the date of certification although I note from clause 5(a) that the agreement will effectively operate on and from 1 January 2006. That's when it effectively comes into operation it is just that today's date is the date of certification which means it can only be enforceable as and from today and gentlemen the necessary documentation confirming all that - confirming certification will be forwarded to you both in the next week or so and I think that concludes the hearing of the matter.

<ADJOURNED INDEFINITELY [9.40AM]