AG2008/1539, Transcript of Proceedings [2008] AIRCTrans 857 (30 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19550-1

COMMISSIONER HARRISON

AG2008/1539

cl.2A(1)(b) Sch. 7 - Application for an order to vary pre-reform certified agreement

Application by United Group Rail Services Limited
(AG2008/1539)
United Goninan Limited - Broadmeadow Operation Enterprise Bargaining Agreement 2005

(ODN AG2005/3587)
[AG841199 Print PR960187]]




Sydney

1.35PM, MONDAY, 15 DECEMBER 2008

PN1

MR A SALMON: If the Commission pleases, I seek leave to appear for the applicant in this matter which is United Group Rail Services Limited. I am also appearing for the Australian Manufacturing Workers Union by way of correspondence from that union. Appearing with me, Commissioner, is a
MR M DAILEY, General Manager of the applicant. If the Commission pleases.

PN2

THE COMMISSIONER: Thank you, Mr Salmon.

PN3

MR A MCKINNON: If it pleases the Commission, McKinnon initial A, appearing for the CEPU Electrical Division New South Wales Divisional Branch and I have no objection to leave to …..

PN4

THE COMMISSIONER: Leave is granted, Mr Salmon.

PN5

MR MCKINNON: Thank you.

PN6

MR SALMON: Thank you, Commissioner. Commissioner the matter before you today is an application by United Group Rail Services Limited to extend a pre-reform certified agreement. The application is by consent, with the consent of the AMWU, the AWU and the ETU the three unions who represent the industrial interests of employees at my clients workplace. And the matter as the Commission is well aware forms the basis of an application under Item2A of Sch.7 of the Act, which was brought in by virtue of the transition to ….. legislation back in March, 27 March early this year. Which effectively enabled parties to pre-reform certified agreements to actually extend those agreements by virtue of their duration. And also go further and also vary terms of the certified agreement.

PN7

This is such an application and the Commissions jurisdiction in enlivened when a person bound by a pre-reform certified agreement makes such an application. The Commission will note that the certified agreement in question is the United Goninan Broadmeadow Operation Enterprise Bargaining Agreement 2005, since that time the name of the employer has changed to United Group Rail Services Limited. So the jurisdictions enlivened by my client by consent with the other parties seeking to vary that agreement and that is sought by way of an order to be made and I have electronically caused that draft order to be forwarded to your associate Commissioner. That order sets out in appendix A and itemised list of variations to the agreement, and Appendix B sets out the agreement as it would appear had the variation been made.

PN8

There are some prerequisites, some mandatory prerequisites which the Commission is well aware in relation to these applications. The Commission must be satisfied that all parties bound by the agreement genuinely agree to it. That none of the parties have engaged after the introduction day and that introduction day is of course is 27 March 2008, organised or engaged or threatened to engage in industrial action or apply for a protected action ballot. And also the requirement that the agreement as varied, would not on balance result in a reduction of the overall terms and conditions of employment of employees bound by the agreement, akin to the no disadvantage test.

PN9

Commissioner part of the documentation that was filed together with the application are four statutory declarations. One from Mr Paul Sinclair from the ETU or the CEPU, Paul Bastion from the AMWU and Kevin Maher as well as a statutory declaration from Mr Collinson, a representative of my client. The union statutory declarations I submit form the evidentiary basis upon which I can make this submission that the valid majority of employees did agree, genuinely agree to vary the agreement as sought. Secondly, that it wouldn’t result in balance in the reduction of the overall terms and conditions of employment. And thirdly that no parties have been engaged in nor threatened to engage in protective industrial action or seeking of a ballot.

PN10

Essentially, Commissioner, the substantive aspect of the variation goes to improvements in wages some variations to a disciplinary procedure that really go to terms and that is sought in essence to comply with my clients obligations that arise under the National Code of Practice for the construction industry and implementation guidelines. So the changes that have been made to the agreement have essentially been on wages and other related issues regarding the code. They have not resulted in a reduction of current terms and conditions as are applicable under the relevant certified agreement or agreement as it now operates.

PN11

Commissioner, they are my submissions I am happy to address the Commission on any aspect of the application. I will put on the record that this has been a long negotiation, negotiations began in February of this year and have culminated in this application. I reiterate that the application is made by consent of all of the parties to it. If the Commission pleases.

PN12

THE COMMISSIONER: Thank you, Mr Salmon. Mr McKinnon?

PN13

MR MCKINNON: Thank you, Commissioner. I would like to start off by saying that the union supports the submission as sought today and as made by the applicant. In saying that the CEPU and its members have found genuine agreement in the varied and extended award before the Commission, sorry agreement before the Commission today. And that the CEPU submits that it has submitted a statutory declaration of the assistant secretary which is the evidence it gives in order to satisfy the Commission that it has not organised or engaged in , or threatened to organise or engage in industrial action in relation to this agreement, and that it has not applied for a protected action ballot in relation to this agreement. On the balance the agreement does not result in a reduction in the overall terms and agreements of the members of the CEPU. They are the submissions of the CEPU today. If the Commission pleases.

PN14

THE COMMISSIONER: Thank you, Mr McKinnon. Well, this is an application to vary and extend the United Goninan Limited Broadmeadow Operation Enterprise Bargaining Agreement. Having regard to the statutory declarations provided with the application and also the submission of Mr Salmon and Mr McKinnon, I am satisfied that the requirements of the Act have been met. Accordingly the agreement to be renamed will come into force on and from today's date and remain in force until - still the 22 April 2011?

PN15

MR SALMON: The 22 April 2011.

PN16

THE COMMISSIONER: Yes, all right. An order giving effect to this decision will issue shortly.

PN17

MR SALMON: Commissioner, I would just like to place on the record our gratitude to the Commission for listing the matter as quickly as possible, the parties appreciate it.

PN18

THE COMMISSIONER: Thank you. These proceedings stand adjourned.

<ADJOURNED ACCORDINGLY [1.43PM]