AG2001/4650, Transcript of Proceedings [2001] AIRCTrans 2602 (3 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2001/4650

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Media, Entertainment and Arts Alliance
and Another for certification of the Company B
Belvoir Performers' Certified Agreement 2000-2002

SYDNEY

9.05 AM, THURSDAY, 13 SEPTEMBER 2001

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2

MS E. PROPPER: I appear on behalf of the Media, Entertainment and Arts Alliance, thank you, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I've received a letter from the Administrator of Company B Belvoir Street Theatre

PN4

dated 4 September indicating that he had been notified of this hearing and did not wish to appear at the hearing but consented to the certification of the agreement. Yes, Ms Propper?

PN5

MS PROPPER: Thank you, your Honour. If it pleases the Commission, I reiterate that, as I understand it, neither Rachel Healy, General Manager, nor Nigel Smith, Company Administrator from Company B, is able to appear this morning but, however, consent to the certification.

PN6

Your Honour, we are here today to support an application made under Division 2, part VIB, 170LJ of the Workplace Relation Act for the certification of the Company B Performers Certified Agreement 2000-2002, signed by Christopher Warren, Federal Secretary of the Media, Entertainment and Arts Alliance, and filed with the Commission on 21 August 2001. You also have before you statutory declarations prepared by the Media, Entertainment and Arts Alliance and Nigel Smith of Company B Belvoir Theatre Company.

PN7

The agreement relates to a single business, namely, those employees to be engaged as performers. The business is a constitutional corporation within the meaning of the Act and the ACN number is 002 866 828. MEAA has constitutional coverage for these employees to be engaged as performers. The agreement passes the no disadvantage test.

PN8

A valid majority genuinely approved the agreement on Thursday, 23 August 2001. The agreement was given to each cast member on Thursday, 2 August 2001. The cast delegate and General Manager also had copies of the agreement available. A copy of the agreement was further made available in the Green Room and dressing room for the cast and was always accessible with company management.

PN9

The cast voted on Thursday, 23 August 2001. The agreement was filed within 21 days. A dispute settling procedure is set out at clause 15 of the agreement. The agreement specifies a nominal expiry date of 30 June 2002. The agreement has a life of less than three years. On these grounds we would request that you certify the agreement to operate from today's date. Thank you, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I have considered clause 15, the dispute resolution procedure, and note that after some steps that are required to be taken in clauses 15.1 to 15.3 the matter may come to the Commission; and it is referred to in terms that if the matter remains unresolved it should be notified to the Commission for resolution. Do you know what the parties mean by the words "for resolution"?

PN11

MS PROPPER: I haven't brought the copy of the agreement with me today, which is extremely remiss of me. However, as I understand it - sorry, your Honour. I'm just thinking how to answer appropriately.

PN12

THE SENIOR DEPUTY PRESIDENT: It might be better that I indicate what is behind my question and then you continue with your answer or do whatever you think is appropriate.

PN13

MS PROPPER: Thank you.

PN14

THE SENIOR DEPUTY PRESIDENT: There have been now a few decisions subsequent to the High Court decision in March of this year dealing with the role the Commission has under dispute settlement procedures in enterprise bargaining agreements. The words used in the dispute settlement procedure and the intention of the parties in relation to what it is that the Commission will do when a dispute comes to it have been considered. For myself, I don't know what "for resolution" means.

PN15

MS PROPPER: I believe it would mean if we encountered a local issue such as the lay-off, which historically has meant when a production goes from one theatre to another. There was a decision last year based on the GFO - Gordon Frost Organisation - and the "Sound of Music" cast about when that lay-off period has to be paid. Senior Deputy President Polites gave us a decision on that. However, within the agreement it still does not address lay-off. That is just an example, your Honour, of where we would come to the Commission. Am I going down the right track?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, partially. That gives me an understanding of the type of matter that might come under this dispute. The issue though is this. When a matter comes here for resolution, for myself it is unclear whether it is coming here for conciliation, for conciliation and arbitration, for conciliation and arbitration in accordance with the provisions of the Act, or otherwise; and they all mean different things in terms of the restraints that the parties might have seen fit to place on the Commission. The parties may have intended, by using the words "for resolution", to give the Commission the widest powers or something less.

PN17

Certainly, since the decision of the High Court and subsequent decisions in this place it is my view that it is appropriate for the parties to be alerted to the fact that when a dispute comes to us the sort of words you've used in your dispute resolution procedure will be very important as to what we can do for you. So we're not suggesting what you can or can't do in terms of bestowing power. We're just suggesting to you, if you think you've given us powers that are this wide - and I'm here indicating by my hands - if you think they be wide powers you may get a bit of a shock when we are obliged to refer you to these various cases and say, "Do you realise the role we can now have is considerably less than what you thought you were giving us?", or vice versa.

PN18

I don't want this to hold up the resolution this morning but I think it is a matter of very real significance. Now, Ms Propper, if, for example, you want to take that on board - and, of course, we're in a particular problem here with the employer not appearing so it's not as if you can both say to me now what you agree it means - and you and employer get back to me as soon as possible and clarify what that means, or maybe take on board what I've had to say and you might decide you should use other words that better describe what the role of the Commission will be in the event of a dispute arising, irrespective of the application of the agreement, hopefully you can do that in a few days.

PN19

MS PROPPER: Am I able to do that by faxing you our understanding of the words "for resolution" under that clause?

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, you can do that or otherwise even, upon reflection,if you both agree better words should be used, I would be happy to substitute that page. It is not a matter about which I would form the view that employees need to vote again. It's not that sort of matter.

PN21

MS PROPPER: All right; thank you. So that page can just be replaced, "for resolution"?

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, just so that you are both perfectly clear on what you decided the role of the Commission will be in the event of a dispute and that the words you use properly describe that role. Whilst you're there, if you're going to replace a page, would you give consideration to replacing page 35? The bottom of it has a clause 40 in it. I think it might be referring to a previous version of the amended Act.

PN23

MS PROPPER: I apologise, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Well, it's just a good opportunity to bring it up to date. Otherwise I had no other questions. May I leave it on this basis: that on the basis of your submissions and the statutory declarations I would have been persuaded to certify the agreement effective from today's date, 13 September 2001, and indicate it will remain in operation until the 30th day of June 2002. I won't proceed though to issue the certificate yet until I have heard from you in relation to the dispute settlement procedure. So the ball is in your court really. The sooner we hear from you the sooner the certificate will issue.

PN25

MS PROPPER: All right, thank you. Your Honour, can I ask a question? Can that be a joint letter from the employer and us?

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, of course.

PN27

MS PROPPER: Thank you, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

ADJOURNED INDEFINITELY [9.15am]