AG2005/6558, Transcript of Proceedings [2006] AIRCTrans 55 (5 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13872-1

COMMISSIONER DANGERFIELD

AG2005/6558

APPLICATION BY TRANSPORT WORKERS’ UNION OF AUSTRALIA & PEAM PTY LTD T/AS EH CAMBRIDGE & CO
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/6558)

ADELAIDE

10.05AM, WEDNESDAY, 21 DECEMBER 2005

Continued from 7/11/2005

PN62

THE COMMISSIONER: Yes Mr Donolly, I think we adjourned this from the last occasion and because I think you were dropped in it at the last moment. What has happened since then?

PN63

MR DONOLLY: Okay. Commissioner, since then I have gone back out to the EH Cambridge in Mount Barker and got the company - Mark Cambridge to amend the issues that you had with the statutory declaration which you have a copy of, however I need to point out to you that actually whilst I did get Mark, well Mr Cambridge to sign the statutory declaration I actually failed to get the union's JP to put the signature or I guess verify the stat dec. That was an oversight on my behalf. I don't know if that is going to be problematic.

PN64

THE COMMISSIONER: Well what it means is that I don't have a statutory declaration. That is what it means. If a statutory declaration isn't properly sworn then it is not a statutory declaration. That is the issue. Look all I have got here is what was faxed to me from the union yesterday which is a - what purports to be a statutory declaration from Mr Cambridge although as I say it hasn't been declared. It is only signed by him and it is not sworn. It is also missing a number of questions in the standard form statutory declaration, 6.4, 6.5, 6.6, 6.7 and - - -

PN65

MR DONOLLY: Okay so there is actually a page missing.

PN66

THE COMMISSIONER: Because I go straight from the page here that says 6.2, 6.3 and then it goes straight over to 7.1 and some of those questions that are normally in the standard format statutory declaration 6.4, 6.5, 6.6, 6.7 I think they are quite important in this current context and look the other thing that intrigues me here is I have now got faxed to me from the union yesterday a thing titled the EH Cambridge & Co Enterprise Agreement 2005. It is in a substantially different form from the agreement that was before me on the last occasion and it does in fact appear to have picked up the issues that I had with the agreement on the last occasion. I agree with that.

PN67

The agreement that is now being presented to the Commission in this fax from the union yesterday would seem to comply, I mean it would seem to comply with the Act. I don't have any problems with the content of the agreement but the difficulty that I have is this. What you have presented in this fax from the union office yesterday is an agreement with new wording from the agreement that was put up on the last occasion.

PN68

Now, is what you are now presenting to me the actual document put to the workers for the vote on 20 September or not? In other words was the defective agreement that you put to me last time just simply the wrong cut and paste draft of the real, more accurate agreement put to the workers on 20 September which I now have before me or was the agreement put to the workers on 20 September the badly drafted defective agreement that I considered on the last occasion?

PN69

I suspect the answer is the latter and that what you have done is now go back - see I suspect what has happened, you tell me if I am wrong, but I suspect that on 20 September the employees voted on a document and that document they voted on is not the one that the union has now faxed through to me but they voted on the original document that I considered on the last occasion here and I said look I can't approve this. What has happened since, I adjourned the matter on the last occasion because you had been - I mean you just didn't have any instruction, you were dropped in at the last moment.

PN70

I adjourned the matter and said look, tell me what you want done with it. In the meantime you have gone back, you have taken on board the comments that I made about the agreement and you have now amended the agreement and the purported statutory declaration of Mr Cambridge purports to say that the amended agreement that has now been faxed through to me - yes this was the same agreement put to the workers on 20 September and I don't think it was.

PN71

MR DONOLLY: Yes that is correct.

PN72

THE COMMISSIONER: I mean it is quite a tangle that we have got ourselves into and look, I can appreciate the difficulty for someone like yourself who wasn't involved with the thing initially and probably with a busy employer who hasn't got time to make sure that statutory declarations are signed correctly et cetera et cetera but all I would say is simply this. Under the current enterprise agreement regime things really do have to be done properly. I need on the file a full statutory declaration from the employer and I need to be satisfied that the agreement that I am being asked to approve or certify is the same agreement that was put to the workers for the vote way back on 20 September and I can't be satisfied of that.

PN73

MR DONOLLY: Okay.

PN74

THE COMMISSIONER: I think the only way out of this frankly is for the company and the union to do it again and I am sorry to say that because with agreements I think the Commission ought to and certainly it is always my intention to try and facilitate what the parties do. I don't try to just be technical for the sake of being technical but the fact is the Act has certain requirements and I have got a statutory duty to follow those requirements and I just don't think those requirements have been met in this instance and to be perfectly honest about this I am concerned about the employees with this as well.

PN75

I don't know that they know fully what is going on. There are a couple of things, still a couple of things that I am unclear of. I mean I asked a question on the last occasion. The application itself talks about an organisation called PEAN, that is P-E-A-N Pty Ltd trading as EH Cambridge & Co. The application only gives one ACN number. Now I am presuming that ACN number is for PEAN Pty Ltd and not the alleged business name EH Cambridge & Co although the alleged business name EH Cambridge & Co sounds like a corporate name in any event and I am just confused and that is why I would like to know, this ACN number that we have got, does that refer to PEAN Pty Ltd or EH Cambridge & Co? What is it?

PN76

And frankly I think it should be Mr Cambridge who fronts here to tell me that. I mean if Mr Cambridge was here, either here on this occasion or the last occasion we might have been able to sort some of these things out with respect. And I know he is a busy man and all the rest but if he wants an agreement approved by the Commission I think he is going to have to do that. As I said on the last occasion the employer has still not answered the question in the statutory declaration about how the agreement was explained to the different employees.

PN77

Now I asked for that last time. It has still not been forthcoming even in the alleged draft statutory declaration that has been faxed through to me. The third thing is, what has been faxed through to me is only a draft statutory declaration it is not the real thing because it hasn't been sworn. There are also several questions that have not been answered in the draft statutory declaration faxed through to me. As I mentioned 6.4, 6.5, 6.6 and 6.7 and as I indicated what you have now, what is now before the Commission is certainly - it is an agreement with new wording and I can indicate to you that I have looked at the wording and I am happy with the agreement that is currently before me.

PN78

I think that's certifiable but I need to be sure that the agreement that is now before me was in fact the agreement that was before the workers when they voted on it way back on 20 September and as I say I am not satisfied of that and I think you are indicating that that is the situation. So look I think given all that I honestly think the only thing we can do is go back to square one and put a - it is basically rule a line under everything that has taken place, withdraw this application in effect and well not so much withdraw it, I think you can either withdraw it or I will dismiss it I think or refuse it and then just do it again.

PN79

A new agreement in the terms of what you have faxed through to me. Put it out to the workers for the standard 14 days and then have the ballot and whatever. Come back to me and we can still get this thing approved, I don't know, end of January or whenever. I mean I will facilitate that but - and as I say I understand the inconvenience but the statute is the statute and it must be followed.

PN80

MR DONOLLY: The union respects that, I completely understand what you are saying, sir.

PN81

THE COMMISSIONER: Yes.

PN82

MR DONOLLY: We are happy to go back and - - -

PN83

THE COMMISSIONER: And look it is not as though - I would feel even worse about it if there were, you know, 200 employees or something. There is not many employees anyway. It is a small number. I mean I don't think it would be difficult to go back and do it again. It wouldn't be a major exercise and in order to get it absolutely squeaky clean that is really what you are going to have to do. So, Mr Donolly, I don't know how you want to proceed from here but I was going to suggest either you can seek to withdraw the application or I can indicate today that I am not satisfied on the material before me and I refuse the application. I mean whatever and you are not in a position I suppose to withdraw the application.

PN84

MR DONOLLY: No.

PN85

THE COMMISSIONER: Well can I simply indicate for the record this then. Having considered this matter for the second time today I am not satisfied on the material before me that the agreement that is now being presented to the Commission was in fact the actual agreement put to the workers to vote on, on 20 September 2005. In addition, the supporting statutory declaration or what purports to be a draft statutory declaration, it is incomplete and it is unsigned, that is the declaration from the employer. Therefore for these reasons the Commission refuses the application and what I suggest is that the parties go back and do the process again.

PN86

It is not to say that all has been lost because I think some progress has been made in the sense that the draft agreement that has now been presented is an agreement that I think is in a form that can be certified and I indicate, that but I think it is now the process that we need to go back and do again and if you do that and lodge it in due course, you can indicate when you lodge it that I have been dealing with this matter in the past. It can come through to me and I can facilitate the hearing of it in the new year. So if you are happy with that, Mr Donolly?

PN87

MR DONOLLY: Absolutely.

PN88

THE COMMISSIONER: Content with that?

PN89

MR DONOLLY: Yes.

PN90

THE COMMISSIONER: I shouldn't say happy but if you are content with that Mr Donolly we will leave it on that basis and we will adjourn.

PN91

MR DONOLLY: Thank you.

<ADJOURNED INDEFINITELY [10.18AM]