AG2006/3740, Transcript of Proceedings [2006] AIRCTrans 596 (10 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14643-1

COMMISSIONER DANGERFIELD

AG2006/3740

APPLICATION BY TRANSPORT WORKERS’ UNION OF AUSTRALIA & WESTGATE LOGISTICS PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/3740)

ADELAIDE

12.37PM, FRIDAY, 24 MARCH 2006

PN1

MR J LOADER: For the Transport Workers' Union of Australia and I have with me MR M VOGT, an employee representative for the company.

PN2

THE COMMISSIONER: I note that I have on file a letter from Mr Richard Speck, the state manager SA Westgate Logistics dated 23 March 2006. I should read into the transcript the letter:

PN3

Dear Commissioner,
Re Enterprise Agreement 2006 Westgate Logistics Pty Ltd and Transport Workers' Union. I was advised on Wednesday 22 March 2006 that a time on midday on Friday 24 March 2006 has been set aside for the certification of the above agreement. As state manager of Westgate Logistics Pty Ltd, I have been involved in the negotiation period from commencement. The enterprise agreement 2006 between Westgate Logistics Pty Ltd and the Transport Workers' Union has been agreed by all parties and signed off by the chief executive officer of Westgate Logistics Pty Ltd. I must apologise and notify you that I will be unable to attend this certification session due to prior commitments. A representative of the Transport Workers' Union will be in attendance along with Michael Vogt, Westgate employee and TWU delegate, to answer any questions you may have. It would be greatly appreciated if I could receive a copy of the transcript for reference. Once again, my sincere apologies etc.
Yours faithfully,
Richard Specks, State Manager SA.

PN4

I just read that into transcript to indicate that while the company is not represented here today, they have certainly turned their attention to the certification of this matter and I'll hear from you then, Mr Loader.

PN5

MR LOADER: Commissioner, before the Commission today is an agreement which was signed by the company, Mr David Sinclair, the chief executive officer and Mr John Allen, the federal secretary of the Transport Workers' Union of Australia and Mr Alex Gallagher, the branch secretary South Australia and Northern Territory branch of the Transport Workers' Union of Australia. It 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 interest of the employees covered by this agreement. The requirements to be satisfied under section 170LT of the Act are addressed in the statutory declarations signed by Mr John Allen for the union and Mr Brett Dodd for the company.

PN6

The agreement does not, in relation to its terms and conditions of employment, disadvantage the employees who are covered by the agreement. The agreement at clause 19 incorporates procedures for preventing and settling disputes between the parties an, in particular, allows for referral to the Australian Industrial Relations Commission for settlement at clause 19.3. The agreement provides for consultation with employees in relation to any changes that may affect those employees at clause 42. The agreement applies only to part of a single business. The employees covered by this agreement have been consulted at meetings conducted at the worksite.
Draft copies of the agreement were circulated to the employees and a formal vote was taken on 14 March 2006 at which a majority of the employees voted in favour of the agreement. The result of that ballot was that 14 people voted in favour of the agreement, nil voted peopled voted against the agreement. The total number of employees that are covered by the agreement is 18. In respect of section 170LT(7) of the Act, there are no relevant employees to be considered. I raise clause 41.1 Commissioner, I believe there's been a typographical mistake in the drafting of this agreement. That clause should read - should be employee meetings and it should read:

PN7

Subject to reasonable notice, the employees shall be entitled to a total of 120 minutes annually of paid time to consult in relation to the operation of this agreement and/or the terms of this agreement.

PN8

I'm proposing, whilst that document is lodged at the Commission today, a corrected page be - replace this particular page that's in the agreement today.

PN9

THE COMMISSIONER: Would it be to consult the union? In other words - because the way it reads at the moment Mr Loader, I'm - it's clear that there is a typographical error there. Because the way it reads at present, the employer would actually have to pay the union secretary. I'm quite sure that wasn't what was meant. But as I read it, you've confused the words the union and employees there. So it should actually read:

PN10

Subject to reasonable notice, the employees shall be entitled to a total of 120 minutes annually of paid time to consult the union.

PN11

That's what - I just thought the words union and employees should be interposed there.

PN12

MR LOADER: Yes, I concur with that. That's correct. I thought I just said that, Commissioner.

PN13

THE COMMISSIONER: I think you didn't or perhaps I misunderstood. It's quite clear, I think, that there is a typographical error there and you will - you don't have a replacement page there/

PN14

MR LOADER: No Commissioner, it was just brought to my attention.

PN15

THE COMMISSIONER: That'll be fine if you can give me a replacement page for that in due course.

PN16

MR LOADER: Commissioner, pursuant to Part VIB, Division 4, section 170LT of the Act, we seek that the Commission certify the agreement today. It is to operate from today's date and to operate for a 36 month period. The agreement is known as the Westgate Logistics Pty Ltd (South Australian Transport Operations IGAD Contract) Enterprise Agreement 2006.

PN17

THE COMMISSIONER: Yes, thanks for that. So it's to operate on and from today's date and to remain in force for a period of 36 months, yes, in accordance with clause 3.1. I can indicate then that the Commission has before it an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ. The Commission has considered the application and the terms of the agreement the subject of the application. I can say at the outset that I am satisfied that the agreement in every respect does pertain to the relations of the employer and the employees in their respective capacities as such and hence complies with section 170LI of the Act.

PN18

I say that particularly noting the typographical error that you have pointed out,
Mr Loader, today in regard to clause 41, union meetings, which clearly as it reads at the moment really doesn’t make sense at all and it's quite clear, I think, that the terms the union and employees has just been - they need to be transposed. As I indicated, that's quite clearly a typographical error. So that being the case, with that change I'm quite satisfied that the agreement pertains to the relations of the employer and the employees in their respective capacities as such. The application before the Commission is supported by statutory declarations on file from John Allen, the federal secretary of the Transport Workers' Union of Australia and what appears to be a declaration from Brett Dodd, chief financial officer of Westgate Logistics Pty Ltd, employer in this matter.

PN19

I say what appears to be from Mr Dodd because the statutory declaration itself does not say on the first page who is actually making it. It is signed clearly by
Mr Dodd but it appears that he signed in the place where the JP should have signed it. What I can only assume is, the JP has signed it just above him in the position where the person making the declaration should have signed it. In other words, the signatures appear to have been put in the wrong position. But clearly, Brett Dodd, chief financial officer for the organisation, has signed this statutory declaration. You understand, Mr Loader, that from your discussions with the company that it is in fact Mr Dodd's declaration?

PN20

MR LOADER: Yes Commissioner.

PN21

THE COMMISSIONER: That being the case and subject just to confirmation that in fact it is Mr Dodd who made this declaration, and I'll get my Associate to confirm that in due course with the company, but subject to that those declarations are both consistent with one another and they are in order. I note that the Transport Workers' Award 1998 and the Transport Workers' Distribution and Facilities Award 2004 are the relevant awards for the purposes of the no disadvantage test in this case. I am satisfied that the agreement passes the no disadvantage test as required by the Act. I note also that at clause 19 the agreement includes procedures for preventing and settling disputes between the parties as required by the Act.

PN22

On the material before me, I am satisfied that a valid majority of employees employed at the time genuinely approve 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 and subject only to confirming that issue about the statutory declaration of Mr Dodd and subject only also to receiving a replacement page covering the change to the typographical error on clause 41, the Commission certifies the Westgate Logistics Pty Ltd (South Australian Transport Operations IGAD Contract) Enterprise Agreement 2006 to be operative from today's date, 24 March 2006 and in accordance with clause 3 to remain in force for a period of 36 months being a date that is consistent with the provisions of the Act. Necessary documentation confirming certification will be forwarded to the parties in due course. Unless there's anything further for the record, Mr Loader?

PN23

MR LOADER: No Commissioner, thank you.

PN24

THE COMMISSIONER: That being the case, the Commission stands adjourned.

<ADJOURNED INDEFINITELY [12.48PM]