AG2001/2183, Transcript of Proceedings [2001] AIRCTrans 1094 (5 June 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 7474

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER GRAINGER

C2001/2183
C2001/2184

APPLICATION FOR DETERMINATION
OF DESIGNATED AWARD FOR
CERTIFIED AGREEMENT

Application under section 170XF of
the Act by Independent Education Union
of Australia for determination of
designated award for certified agreement

MULTIPLE BUSINESS AGREEMENT (DIVISION 2)

Application under section 170LC of the Act
by Independent Education Union of Australia
for certification of the Victorian Catholic
Schools and Catholic Education Offices
Certified Agreement (2001-2003)

MELBOURNE

9.04 AM, THURSDAY, 17 MAY 2001

PN1

MR A. ODGERS: I appear for the IEUA. With me today is MS D. JAMES.

PN2

MR A. PRENDERGAST: I appear on behalf of the Victorian Catholic Schools Association for the respective respondents to the certified agreement.

PN3

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, Mr Odgers.

PN4

MR ODGERS: If your Honour pleases, if I can turn firstly to the XF application. If I can take the Bench to either of the statutory declarations that accompanied the application for certification, to part 3, paragraph 3.3 of either of those statutory declarations. Listed there are the names of 13 catholic schools in Victoria. They are the only schools or employers in respect of which the Victorian Catholic Schools and Catholic Education Officers Award does not currently apply. However they, together with all of the other proposed respondents to the agreement, apply the award even though they are not respondent to it.

PN5

So we say that quite clearly, the Victorian Catholic Schools and Catholic Education Officers Award is an appropriate award for the purposes of the no disadvantage test. In respect of the test itself, if I can refer the Bench to part 6 of either of the statutory declarations, the agreement does not contain any detraction from any condition in the award. In other words it builds on and improves upon those award conditions that it deals with. So we say that the no disadvantage test is met in relation to those schools that are not covered by an award and in respect of whom the XF application is made and that it is met in respect of the other proposed respondents for that reason and we ask the Commission to approve that application.

PN6

In relation to the application for certification, I do not propose to say anything other than that we believe that the application meets the standards that are set out in the Act and that the statutory declarations deal with all of the relevant matters that are identified by section 170LC. This statutory declaration is submitted in the same form as statutory declarations have been submitted for the previous two agreements and those agreements were approved by Full Bench's of the Commission.

PN7

The only other matter I wish to raise is the termination of the existing agreement. The parties had neglected, until very late yesterday afternoon, to lodge an application to terminate the agreement that exists at the moment, the forerunner, the predecessor of this agreement. I understand, your Honour, that - from speaking with your associate briefly prior to today's hearing, that the Registry has made a copy of that application available to you. If it is convenient - - -

PN8

SENIOR DEPUTY PRESIDENT WILLIAMS: Well it has actually been allocated to me individually, not to this Full Bench, Mr Odgers, at this stage. I was going to raise that with you. Is the reason for making such an application the provisions of section 170LC(5), otherwise it appears to me that if we were to certify the new agreement it would, by operation of the Act, mean that the existing agreement would no longer operate, but there is that provision in LC(5) which may be the reason why traditionally in this area this application under 170MH(a) is being made.

PN9

MR ODGERS: On the occasion - not on the last occasion we sought to have our agreement certified but on the occasion before that, no application had been made to set aside the previous agreement and from memory the Bench expressed the view that it would be wise to make such an application and I made an application on my feet on that occasion and it was approved by the Bench on that day. So that is what we did on the last occasion, I think for the reasons that you proffer and that is why we have made one, having remembered to do so at the last minute on this occasion, from an excess of caution, I think.

PN10

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, well the only matter of concern to us was that it is probably wise if one is terminating an existing agreement to do it simultaneously with the certification of the new agreement and, subject to what Mr Prendergast has to say, I would be prepared to act as appropriate in respect to the section 170MH(a) application as an individual member at the same time as this Full Bench acts to - assuming it agrees to do so, grant the applications that are before it and we can perhaps get around it that way and next time all applications can be lodged and referred to the same Bench.

PN11

MR ODGERS: Forewarned is forearmed, your Honour. Well that concludes what I have to say in relation to this agreement and the course of action your Honour proposes in relation to setting aside the old agreement is certainly one that meets with our approval. If the Commission pleases.

PN12

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes. Mr Prendergast.

PN13

MR PRENDERGAST: If the Commission pleases, we would support all of the applications that are before the Bench this morning and in relation to the proposition that you deal simultaneously with the previous certified agreement, we would support that as well and in doing so rely upon the statements contained in the statutory declarations. If the Commission pleases.

PN14

SENIOR DEPUTY PRESIDENT WILLIAMS: Having heard the representatives of the parties and having considered the material that is now before us, we are satisfied that the applications that are before the Full Bench, being applications for certification and for determination of a designated award, should be granted by the Full Bench. In relation to the application for termination, as I have indicated, that matter is not specifically before this Full Bench, it is before me personally and I have indicated to the parties that on the basis of what they have said to the Full Bench today I am prepared to act and grant that application as well. So in due course we will publish our reasons and at the same time we will be issuing an appropriate determination and certification, and I will be issuing an appropriate order terminating the agreement. The matter is adjourned on that basis.

ADJOURNED INDEFINITELY [9.12am]