AG2001/2970, Transcript of Proceedings [2001] AIRCTrans 1808 (7 August 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 8432

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/2970

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Australian Nursing Federation and
Another for certification of the Strathdon
Community Nursing Staff Salary Packaging
Agreement 2001

MELBOURNE

9.49 AM, WEDNESDAY, 18 JULY 2001

Continued from 9.7.01

PN32

MR P. GILBERT: I appear for the Australian Nursing Federation.

PN33

MR R. FINDLAY: I am appearing for Strathdon Community.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. When this matter was before me on 9 July I had some reservations because I did not know the nature of the employer from what was put in the statutory declarations and, indeed, there was an inconsistency between the two. That has now been corrected. Can I just ask, probably Mr Findlay would be the better person to answer this question: the statutory declarations now say that Strathdon Community is an agency of the Uniting Church and Australia Property Trust (Victoria) which was created by the Uniting Church in Australia Act, an Act of the Victorian Parliament. Is Strathdon Community the actual employer of the personnel concerned? And I am not quite sure what is meant by an agency, quite frankly.

PN35

MR FINDLAY: Well, Strathdon has no other legal standing. It is not incorporated in any way so it is an agency of the Uniting Church. In the first place, it is the initial employer of the staff.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. It is part of the Uniting Church, is it?

PN37

MR FINDLAY: Yes, yes.

PN38

THE SENIOR DEPUTY PRESIDENT: Very well. I think it will probably be best if I certify this agreement on the basis that the employer is an employer in Victoria. That avoids constitutional difficulties about whether or not a corporation is, in fact, the employer. We have the facility fortunately in the Act to certify an agreement between an employer in Victoria without worrying about those other constitutional problems and I am satisfied that Strathdon is an employer in Victoria. Mr Gilbert, do you want to say anything?

PN39

MR GILBERT: No, your Honour, just to say that we are quite comfortable with relying on section 494.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I am in the position to give a decision. The Australian Nursing Federation applies under part VIB division 2 section 170LJ of the Act to certify an agreement to be known as the Strathdon Community Nursing Staff Salary Packaging Agreement 2001. Having heard Mr Gilbert on behalf of the ANF and Mr Findlay on behalf of the employer, and having read the statutory declarations filed on behalf of the ANF by Belinda Morieson and on behalf the employer by Mr Findlay, I am satisfied that the agreement pertains to an employer in Victoria that is carrying on a single business.

PN41

I am also satisfied that the ANF has at least one member employed in the single business to which the agreement relates and is entitled to represent the industrial interests of the member. I am also satisfied that the agreement passes the no disadvantage test; that it was made in accordance with section 170LJ of the Act, and that a valid majority of persons employed at the time whose employment would be subject to it genuinely approved it; that the explanation of the terms of the agreement was appropriate; that it includes procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to it; and that it specifies a date as a nominal expiry date which is not more than three years after the date on which it will come into operation.

PN42

I am also satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify it. Accordingly, the agreement will be certified with effect from today to operate in accordance with its terms also from today's date. I will issue a formal certification in due course. Is there anything else, gentlemen? Adjourn the Commission.

ADJOURNED INDEFINITELY [9.54am]