AG2006/3000, Transcript of Proceedings [2006] AIRCTrans 386 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14370-1

COMMISSIONER DANGERFIELD

AG2006/3000

APPLICATION BY TRANSPORT WORKERS’ UNION OF AUSTRALIA & FREDERICKS PETROLEUM PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/3000)

ADELAIDE

10.09AM, WEDNESDAY, 01 MARCH 2006

PN1

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

PN2

MR B FREDERICKS: Managing Director of Fredericks Petroleum and Adelaide Fuel Distributors.

PN3

MR M MITCHELL: Adelaide Fuel Distributors.

PN4

THE COMMISSIONER: And Mr Mitchell. What's your position, Mr Mitchell?

PN5

MR MITCHELL: Manager.

PN6

THE COMMISSIONER: Manager. Thank you. Mr Wyatt thank you.

PN7

MR WYATT: Yes. If the Commission pleases. Before the Commission today is an agreement signed by Mr Fredericks 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 this agreement. The Transport Workers Oil Distribution Award 2001 is the award which underpins.

PN8

The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declaration signed by Mr Allen for the union and Mr Fredericks for the company. The agreement does not in relation to the terms and conditions of employment disadvantage the employees who are covered by this agreement. The agreement at clause 19 includes procedures for preventing and settling disputes. The agreement provides for consultation with employees and the agreement applies only to part of the single business.

PN9

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 formal vote was taken on 18 January 2006. There is nine employees covered by the agreement. There are no – in respect to section 170LT(7) of the Act there are no relevant employees to be considered and pursuant to Part VIB Division 4 section 170LT of the Act we seek the Commission to certify an agreement referred to as the Adelaide Fuel Distributions TWU Distribution Agreement 2006 and operative from today's date but the agreement does have an operative date of 30 January 2006 and expiring on 29 January 2009.

PN10

THE COMMISSIONER: There's a couple of things, Mr Wyatt. I just note you mention the title of the agreement. The actual title of the agreement I am taking to be as in clause 1 which says the agreement shall be known as the Transport Workers Adelaide Fuel Distributors Agreement – hang on - - -

PN11

MR WYATT: Sir if the Commission pleases that is actually a typing error.

PN12

THE COMMISSIONER: Typographical is it?

PN13

MR WYATT: Yes.

PN14

THE COMMISSIONER: So, I am looking at clause – the document I have got – on the very front page it says Adelaide Fuel Distributors TWU Distribution Agreement 2006. Do you want that to be the title of the agreement?

PN15

MR WYATT: If the Commission pleases.

PN16

THE COMMISSIONER: Because in very – clause 1 it says this agreement shall be known as the Transport Workers Adelaide Fuel Distributors Agreement 2003. So 2003 obviously should be 2006 anyway.

PN17

MR WYATT: 2006, yes.

PN18

THE COMMISSIONER: But you want the whole name changed?

PN19

MR WYATT: Yes.

PN20

THE COMMISSIONER: Look, can I just suggest if that is the case, could you give me another page on that? So that I have got on file here – on the Commission's file I have got an absolute up to date copy of the agreement. All I need is another copy of what is page 2. It is just the one with clause 1 title and clause 2 arrangement on it.

PN21

MR WYATT: Yes.

PN22

THE COMMISSIONER: Well only part of clause 2 arrangement if you get what I mean. But I think the Commission should have an absolute up to date copy of the agreement. The other thing, Mr Wyatt, you are out of time for this. 18 January was the ballot. 21 days from there would take you through to 8 February. It was actually filed on 14th. Your reason for filing it late?

PN23

MR WYATT: Yes. If the Commission pleases. The usual cross border stuff that goes on and the timeframe with Christmas and I returned from leave around that time and hurried up the process and we got it happening.

PN24

THE COMMISSIONER: And the usual thing getting the signatures from interstate with Mr Allen?

PN25

MR WYATT: That's correct.

PN26

THE COMMISSIONER: And perhaps Mr Fredericks or probably Mr Mitchell might be able to answer me this one. Gentlemen I don't know if you understand what I am talking about but the agreement has to be filed within 21 days of it actually being approved by the work force at a ballot. It was approved by the workers on 18 January. 21 days from there would take you through to 8 February according to my maths. This was actually filed on 14 February. What I need to know is, in that overlap time – that is between the 8 February when it should have been filed and 14 February when it was filed, was there any change in the composition of the work force?

PN27

MR FREDERICKS: No. No structural change at all.

PN28

THE COMMISSIONER: No new employees came on - none left? Okay the only other thing I need to know is what was the result of the ballot?

PN29

MR WYATT: It was unanimous.

PN30

THE COMMISSIONER: Unanimous?

PN31

MR WYATT: Yes.

PN32

THE COMMISSIONER: They all voted.

PN33

MR WYATT: Yes.

PN34

THE COMMISSIONER: Nine zero.

PN35

MR WYATT: Yes.

PN36

THE COMMISSIONER: Okay. Thanks for that and either Mr Fredericks or Mr Mitchell, anything you want to say about the agreement?

PN37

MR FREDERICKS: No we were happy with the outcome.

PN38

THE COMMISSIONER: Okay and I have noted also, Mr Fredericks, I have got a new statutory declaration from you today which covers that point that I had flagged to you through my associate yesterday I think. Thanks for that. Okay then I can indicate that this is an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ.

PN39

The application was filed some six days out of time however having regard to the explanation for the delay and the fact that there was no change in the composition of the work force between 8 February and 14 February and the result of the ballot, I exercise my discretion pursuant to section 111(1)(r) of the Act to grant the necessary extension of time. The Commission has considered the application and the terms of the agreement, the subject of the application.

PN40

I am firstly satisfied that the agreement in every respect pertains to the relations of the employer and the relevant employees and hence complies with section 170LI of the Act. The agreement is underpinned by statutory declarations of Bryson Fredericks, Managing Director Adelaide Fuel Distributors, the employer in this matter and John Allen, the Federal Secretary of the Transport Workers' Union of Australia. Those declarations are in order.

PN41

Having heard from the parties today in relation to the application to have their agreement certified I note firstly that the Transport Workers Oil Distribution Award 2001 is the relevant award for the no disadvantage test and having compared the provisions of the agreement with those of the award I find that test to be satisfied. I note that the agreement at clause 19 includes procedures for preventing and settling disputes between the parties.

PN42

I am satisfied on the material before me 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 having regard to their circumstances and needs. Accordingly the Commission certifies an agreement to be known as the Adelaide Fuel Distributors TWU Distribution Agreement 2006. The date of certification will be today's date, 1 March 2006 although I note that the agreement will effectively operate from prior to today but today will be the date of certification and in accordance with clause 5 the agreement will remain in force until 29 January 2009.

PN43

The necessary documentation confirming certification will be forwarded to the parties over the next few days. Can I say gentlemen that we will do that after I have received that replacement page 2, Mr Wyatt, just so that we have got the complete copy of the agreement on file and I think unless there is anything further from the parties for the record? No? I congratulate the parties on their agreement and that disposes of the hearing of the matter.

<ADJOURNED INDEFINITELY [10.18AM]