AG2001/3818, Transcript of Proceedings [2001] AIRCTrans 2004 (17 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2001/3818

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by C J Ord River Sugar Pty Ltd for the
certification of the C J Ord River Sugar
Certified Agreement 2001

SYDNEY

9.30 AM, TUESDAY, 31 JULY 2001

PN1

THE COMMISSIONER: Yes, could I take appearances please?

PN2

MR N. KEATS: Good morning Commissioner, I appear for CJ Ord River Sugar Pty Limited, if the Commission pleases.

PN3

MR W. G. McNALLY: I appear for P. KLAUSE, K-l-a-u-s-e, who was the elected representative of the employees.

PN4

THE COMMISSIONER: I have a statutory declaration of Mr Klause, Mr McNally.

PN5

MR McNALLY: Good, thank you, and I have with me - there's a bit of a history with this matter. I have with me Mr D. BONER who is the secretary of the CSR Staff Association. There was a previous agreement which was a 170LJ Agreement between CSR and the Staff Association, or Officers Association, I'm sorry, it's called. But CSR sold their business to the present company. So that because of the doubt as to whether that organisation, although it still has members working there, was eligible to negotiate on their behalf the machinery outlined by 170LK was followed, but that the employees during the course of the negotiations had the benefit of, some of them are still members of the association, had the services of the services of the association in terms of advising them. If the Commission pleases.

PN6

THE COMMISSIONER: Thank you, Mr McNally. Mr Keats, I presume you are going to address the application.

PN7

MR KEATS: That is correct, Commissioner.

PN8

THE COMMISSIONER: I have a couple of questions that I would ask the parties in relation to certification but I will state at this point, apart from those questions, I have a concern in regards to statutory declarations at point 5, point 12, point 2. Now, the statutory declarations are informing me that the agreement was varied after the notice referred to in 5.6 was given and what it tells me is that after that variation the proposed agreement did not follow the steps outlined in 170LK(3), would that be correct?

PN9

MR KEATS: That is correct. To sort of give a bit more meat to the bone if it will, what didn't happen is that there was first a notice of written intention to make the agreement with the agreement given, and that's done on the 3rd.

PN10

THE COMMISSIONER: Do I have a copy of that notice by the way, Mr Keats?

PN11

MR KEATS: I don't believe there was one attached to the application, but I can hand one up.

PN12

THE COMMISSIONER: Yes, I might actually mark that notice K1, thank you.

EXHIBIT #K1 DOCUMENT NOTICE OF WRITTEN INTENTION

PN13

THE COMMISSIONER: Yes, please continue.

PN14

MR KEATS: Subsequently, Commissioner, there were variations made to the agreement and the company each time gave the agreement to the employees but did not give a further additional notice as required by section 170LK. What we say is that that is a procedural - - -

PN15

THE COMMISSIONER: So it was 170LK(4) or was it the 14 days?

PN16

MR KEATS: Well, it's the failure to provide the physical notice. The 14 days is met, Commissioner, in terms of the agreement, but there's only one notice, not further notices when the agreement changes.

PN17

THE COMMISSIONER: So each time the agreement as varied was given to employees, they had another 14 days?

PN18

MR KEATS: With the agreement but not with the notice and the agreement.

PN19

MR BONER: You don't have to give another notice do you?

PN20

MR KEATS: Well, technically in 170LK(8). That's the defect that we are referring to in the statutory declarations.

PN21

THE COMMISSIONER: Yes, and that refers to 170LK(2).

PN22

MR KEATS: That's correct, Commissioner. What we say about that, that is a procedural requirement that the Commission would have jurisdiction to deal with in terms of section 111(1)(q) being that what the intent of 170 is, is to facilitate the making of agreements. That's made quite clear by the provisions of the legislation in particular 170L and that the giving of the notice once would be sufficient and that the important thing is that the employees have the agreement before them each time it's changed for the full 14 days.

PN23

THE COMMISSIONER: I'll hear from Mr McNally, but, Mr Keats, I don't think I tend to agree with you. Unfortunately I haven't been able to put my hands on a particular Full Bench decision, that's my understanding, that has looked at the issue of compliance with the Act. It's my view, without actually re-reading that Full Bench decision that I don't have the power to waive the requirements of the Act. I see what you're saying in regards to 111, but I don't think it goes as far as to catch action that is required to be taken under the provisions of the Act.

PN24

Now, I'm quite sure you people want your agreement bona fide and valid and I'm quite sure that you want to ensure that all compliance with the Act has been met to ensure that the agreement is a legal binding document. I'll hear from Mr McNally but what is on my mind when I walked into the hearing room is to actually hear the parties on the application. I don't believe this, I think I may have certified the last CSR staff agreement.

PN25

MR BONER: Sorry, I didn't hear that.

PN26

PN27

THE COMMISSIONER: I was saying to Mr McNally, I think that I may have certified a CSR staff agreement some time ago myself.

PN28

MR BONER: I think it was Deputy President Drake, 2 November.

PN29

THE COMMISSIONER: Yes, well there might have been one other one that I had or whatever, or it might have been a variation, I don't know, but anyhow, apart from all that, there's a couple of questions that I would have. What's on my mind is that I'm inclined to hear the parties. I hear what you are saying, Mr Keats, but I would feel far more comfortable if that particular compliance, that particular section of the Act is actually complied with and if that is the case, if the parties go back in regards and comply with (2) then I've a mind that I can be notified formally of that situation and provided with the appropriate material to satisfy me that the application now does meet the Act and then I would certify in chambers and there wouldn't be a requirement for a more formal hearing.

PN30

So that is where my mind is at the moment. If you seek an adjournment to consider what I've put, after I've heard Mr McNally, then by all means, we can do that. But that's in my mind. Is there anything you wish to add just at the moment on that point?

PN31

MR KEATS: Not at this stage, Commissioner.

PN32

THE COMMISSIONER: Yes.

PN33

MR McNALLY: Could I ask to go off the record so that I can obtain a - if that is appropriate - a better understanding of just what it is that the Commission has in mind?

PN34

THE COMMISSIONER: Yes. Mr Keats you don't have a problem with that at all?

PN35

MR KEATS: No objection.

PN36

THE COMMISSIONER: Yes thank you we will just go off the record.

OFF THE RECORD [9.41am]

RESUMES [10.30am]

PN37

THE COMMISSIONER: I have been in conference with the parties discussing a couple of issues. I have also as highlighted earlier there was a concern in relation to the requirements of the Act being met after the agreement had been varied. In that regard I have given the parties a copy of a Full Bench decision in print R4468 which it was Senior Deputy President McBean, Senior Deputy President Harrison and Commission Redman dated 6 May 1999.

PN38

Now Mr McNally I think you are going to address me as and what the parties would require in regards to the application. I think Mr Keats you might have a few things to say as well.

PN39

MR McNALLY: If the Commission pleases, we seek time to prepare written submissions in particular on two aspects, that is the true meaning of what the parties are required to do under section 170 LK2. We acknowledge that the provision of relevant to section 170 LK are provisions that have to be followed. Our second proposition will be that despite that section 111(1)(q) of the Act gives the Commission a discretion to waive any non-compliance.

PN40

There is so far as I am aware and indeed in private conference anyone is aware, any authoritative decision by the Full Bench of the Industrial Commission on that issue, and the parties are considering whether a reference should be sought and will indicate to decide that issue in an authoritative way. We would seek indulgence to consider that until the end of the week when we can convey if not the written submissions, our intention to seek a reference.

PN41

We do that rather than adopt the alternative course of going through the process again for reasons that were elaborated upon in conference, which included the difficult seasonal conditions that currently prevailed in this industry. The fact that all employees will go on holidays in October until next year and the requirement that Mr Boner travels there to again obtain the endorsement of the agreement. It is felt that this course would be a far quicker course than the other alternative.

PN42

THE COMMISSIONER: Just one thing, that if it is the parties decision to go back and comply with these steps after the variation of the agreement, I just thought I must mention to there would be requirement to go back to a vote so I wanted to let you know that as well. I may not have elaborated on that in any great detail.

PN43

MR McNALLY: We will deal with that in our submissions. There is no requirement to have a vote. There is a requirement that the majority indicate.

PN44

THE COMMISSIONER: Yes, I'm sorry.

PN45

MR McNALLY: The majority have indicated - where there is going to be no variation in the agreement, but the majority have already indicated by signing the agreement that they accept the agreement. The signature of the majority of employees is attached to the agreement that is filed.

PN46

THE COMMISSIONER: This is in regards to the first issue of the parties work through the steps.

PN47

MR McNALLY: Yes.

PN48

THE COMMISSIONER: Yes, wrong terminology, not "vote".

PN49

MR McNALLY: We hope to convince that whoever it is that we convince, that section 111(1)(q) relieves by the exercise of the Commissioner's discretion, there is no requirement to again serve notice of intention to seek an agreement for the reasons that we elaborated upon. My understanding is it is generally felt that if ever there was a case that 111(1)(q) could be applied to 170 LK this is a prime example. But we can put all that in written submissions.

PN50

We have in conference also and we confirm that so far as the agreement is concerned it is in the nature of a second term agreement. There was a previous agreement affecting these employees albeit employed by another company. The salary rates that are set out on page 8 of the agreement deal with five levels. Level 3, 4 and 5 are the only levels that perform shift work and they perform shift work on a rotating basis. So that the rates prescribed at page 8 are all in excess of what the employees would receive under the terms of the award that applies which is the CSR Staff Award which applies by virtue of the transmission of business. If the Commission pleases.

PN51

THE COMMISSIONER: Yes. Thank you, Mr McNally. Mr Keats, you are going to address the requirements of the Act apart from the issue that we have raised earlier?

PN52

MR KEATS: That is correct, Commissioner. This document has been passed by a valid majority of employees being 34 of 39. I won't take that matter any further in light of our earlier comments. It provides for an expiry date being the 1 July 2003 in clause 4. It does relate to a constitutional corporation being CJ Ord River Sugar Pty Ltd. It applies to the whole of the business. It passes the no disadvantage test, in my submission, you have heard the submissions of my friend in relation to the comparison with the award provisions and we adopt those submissions.

PN53

It does contain a grievance procedure, it is in clause 12. In my submission there are no matters sitting in 170LU. They would cause the Commission difficulties in certifying the agreement. I also adopt my friends comments regarding the making of submissions in relation to provisions of section 111(1)(q). We also seek indulgence of the Commission regarding the questions of a reference till the end of the week to make our decision. Unless there is anything further, they are our submissions.

PN54

THE COMMISSIONER: I don't know whether I have put this on the record, but if I have not I will. If it is the parties choice to go back over the steps in 170LK, 2, 3, 5 and 7, and seek approval, if they choose that course of action and they provide me with documentary material satisfying the requirements of the Act I think I have indicated that I would not require a further hearing of the application. If that material satisfied me then I would certify from my office.

PN55

I just wanted to put that on record that is the course for and the position I would take. Now I will hear from the parties either jointly or individually by the end of the week and we see where we go to from that point.

PN56

MR McNALLY: Thank you.

PN57

THE COMMISSIONER: The Commission is adjourned.

ADJOURNED INDEFINITELY [10.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K1 DOCUMENT NOTICE OF WRITTEN INTENTION PN13