AG2001/5217, Transcript of Proceedings [2001] AIRCTrans 2655 (4 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 0155

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2001/5217

APPLICATION FOR CERTIFICATION
OF GREENFIELDS AGREEMENT

Application under section 170LL of the
Act by the National Union of Workers
for certification of Saizeriya Australia
Employment Agreement 2001

MELBOURNE

11.38 AM, FRIDAY, 7 SEPTEMBER 2001

PN1

MR T. LYONS: I appear for the National Union of Workers.

PN2

THE VICE PRESIDENT: Thank you Mr Lyons.

PN3

MR P. VITALE: I seek leave to appear in behalf of Saizeriya Australia Proprietary Limited.

PN4

THE VICE PRESIDENT: Thank you Mr Vitale, I take it no objection.

PN5

MR LYONS:No.

PN6

THE VICE PRESIDENT: Leave is granted Mr Vitale. Mr Lyons, it is your application. I might just run you through the relevant statutory tests and then see if Mr Vitale agrees.

PN7

MR LYONS: Certainly, your Honour.

PN8

THE VICE PRESIDENT: I note the application states it has been made under division 2 of part 6(b). Was the application lodged no later than 21 days after the day on which the agreement was made, in accordance with section 170LL?

PN9

MR LYONS: It was, your Honour.

PN10

THE VICE PRESIDENT: Is the employer party to the agreement a constitutional corporation within the meaning of the Act?

PN11

MR LYONS: Yes.

PN12

THE VICE PRESIDENT: I note that a written copy of the agreement has been submitted for certification. Do you say that that agreement is about matters pertaining to the employment relationships.

PN13

MR LYONS: It is your Honour.

PN14

THE VICE PRESIDENT: And is the agreement in respect of part of a single business, is that right?

PN15

MR LYONS: Yes it is.

PN16

THE VICE PRESIDENT: And you say that is a distinct operational or organisational unit?

PN17

MR LYONS: It is your Honour.

PN18

THE VICE PRESIDENT: Can you explain that?

PN19

MR LYONS: It covers the production employees that will be employed at a factory being built in Melton, sir.

PN20

THE VICE PRESIDENT: Okay.

PN21

MR LYONS: It doesn't cover clerical and other employees.

PN22

THE VICE PRESIDENT: Okay and do I take it that the single business or part of the single business covered by the agreement is a new business that the employer proposes to establish or is establishing when the agreement was made?

PN23

MR LYONS: Yes.

PN24

THE VICE PRESIDENT: And was the agreement made before the employment of any of the person who will be necessary for the normal operation of the part of the business and whose employment will be subject to the agreement?

PN25

MR LYONS: It is - it was, sorry.

PN26

THE VICE PRESIDENT: Yes, right. And is your organisation entitled to represent the industrial interests of one or more persons whose employment is likely to be subject to the agreement, in relation to work that will be subject to the agreement?

PN27

MR LYONS: We are.

PN28

THE VICE PRESIDENT: And the relevant award, is it Grocery Products Manufacture - Manufacturing Grocers Award?

PN29

MR LYONS: It is sir, in our submission.

PN30

THE VICE PRESIDENT: And do you say that certification would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees covered by the agreement?

PN31

MR LYONS: No we say the agreement is above the award in all respects, sir.

PN32

THE VICE PRESIDENT: Okay. And there is a dispute settlement clause in clause 29?

PN33

MR LYONS: There is your Honour.

PN34

THE VICE PRESIDENT: There is a nominal expiry date of 30 September 2002?

PN35

MR LYONS: That is correct.

PN36

THE VICE PRESIDENT: In relation to termination of employment, are any provisions of the agreement inconsistent with a provision of division 3 of part 6(a) an order by the Commission under that division or any injunction granted or any order made by the Court under that division?

PN37

MR LYONS: No, they are not.

PN38

THE VICE PRESIDENT: In relation to negotiating conduct, are there any matters under section 170LU(3) which would lead me to refuse to certify the agreement?

PN39

MR LYONS: No, your Honour.

PN40

THE VICE PRESIDENT: In relation to discrimination, do any provisions of the agreement discriminate against the employee whose employment will be subject to the agreement because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN41

MR LYONS: They do not.

PN42

THE VICE PRESIDENT: Does the agreement contain any objectionable provisions within the meaning of section 170LU(2A)?

PN43

MR LYONS: It does not.

PN44

THE VICE PRESIDENT: No preference clauses - - -

PN45

MR LYONS: No, sir.

PN46

THE VICE PRESIDENT: - - - bargaining plea arrangements? No, I didn't see any when I read it, no. Okay thank you Mr Lyons.

PN47

MR LYONS: Sir, I might say, I may have misheard you, but the nominal expiry date is 30 September 2003, I did hear your Honour to say 2002. At paragraph 4 there.

PN48

THE VICE PRESIDENT: Yes that is right, well in any event, it is less than three years.

PN49

MR LYONS: Indeed.

PN50

THE VICE PRESIDENT: Yes.

PN51

MR LYONS: Thank you sir.

PN52

THE VICE PRESIDENT: Thank you. Mr Vitale, do you agree with the answers that Mr Lyons has given?

PN53

MR VITALE: Yes, your Honour, we are in complete agreement with that, the company is very happy with the agreement and pleased to see it certified. If your Honour pleases.

PN54

THE VICE PRESIDENT: Okay, thank you. I am satisfied the agreement meets the relevant statutory tests, I will issue a certificate to that effect. The only thing that remains is to thank the parties for consenting to the time change. Anything that lets me return to bed quicker today is going to be of benefit. Thank you both, I will now adjourn.

SHORT ADJOURNMENT [11.42am]

RESUMED [11.45am]

PN55

THE VICE PRESIDENT: In my haste to escape, Mr Lyons, I have overlooked your XF application. I had understood, because the statutory declaration indicated the Grocery Products Manufacturing Award that the employer was bound by that award, but I take it that is not the case and you seek to have me designate that award?

PN56

MR LYONS: Indeed we do sir, I am sorry, that is an error in the preparation of the statutory declarations. We say that is the appropriate award for the purposes of 170XF.

PN57

THE VICE PRESIDENT: And what is the nature of the work that will be performed at the factory?

PN58

MR LYONS: The work that will be performed at the factory is the manufacture and processing of a variety of foodstuffs which appropriately comes within the scope of the Manufacturing Grocers Award.

PN59

THE VICE PRESIDENT: Okay, well I will grant the XF application and designate the Grocery Products Manufacture - Manufacturing Grocers Award 1996 as the relevant award for the no disadvantage test. That of course doesn't alter the decision to certify the agreement, which I now confirm, because I did that on the basis of that award being the underpinning award in any event. Nothing further?

PN60

MR LYONS: Nothing.

PN61

MR VITALE: Nothing.

PN62

MR LYONS: No, your Honour, I guarantee it.

PN63

THE VICE PRESIDENT: Okay.

ADJOURNED INDEFINITELY [11.47am]