AG2001/5456, Transcript of Proceedings [2001] AIRCTrans 2895 (25 October 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 0660

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2001/5456

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the National Union of Workers for
certification of an agreement

MELBOURNE

10.57 AM, WEDNESDAY, 10 OCTOBER 2001

PN1

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

PN2

MR W. DAWSON: I seek leave to appear for PFD Foods. And also appearing with me is MR M. DILLON who is not well, your Honour. He has just had to duck outside for a moment.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Are you appearing as solicitor, are you?

PN4

MR DAWSON: No, I am appearing as their representative.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Any objection to leave being granted?

PN6

MR LYONS: No, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Yes, Mr Lyons.

PN8

MR LYONS: Thank you, your Honour. In this matter the NUW and PFD Food Services seek certification of an enterprise agreement in the terms filed. In doing so the NUW relies on the statutory declaration of Mr Donnelly, the Branch Secretary of the union, which should appear on the file of the Commission.

PN9

We say that that declaration sets out that the requirements of the Act in relation to the application have been met and also that it contains such other information as the Commission should satisfy itself of prior to certifying the agreement. Your Honour, unless you have any questions about the content of the agreement or the declaration, we would seek certification from today's date. If the Commission pleases.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Dawson, do you wish to say anything?

PN11

MR DAWSON: Yes, thank you, your Honour. We would agree with Mr Lyons submission in this matter. However, there is one matter we would like to draw to your attention and that is clause 49. And the reason for that is this has been a fairly protracted negotiation, which has gone on for quite some time and we are only at certification today. But the agreement and the wage increases, in fact, took effect from 1 July 2000.

PN12

The issue that has been agreed between the parties in terms of clause 49 is that the bonus and performance indicators will take effect from the period commencing 1 July this year. In other words, there will be no back payment because the mechanisms were not put in place. Now, that has been agreed with representatives of the union, but I think to save future misunderstandings about this, we need to put that on the record.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Lyons.

PN14

MR LYONS: Your Honour, I have no instructions on that and perhaps it would have been appropriate if this matter had been raised before the hearing with me, but I am not in a position to consent to that because I do not have instructions that that is the case.

PN15

THE SENIOR DEPUTY PRESIDENT: Well, what I could do in those circumstances would be to allow you some time, Mr Lyons, to confirm whether or not that is the situation. If it is, I will proceed to certify the agreement. If it is not, the matter might need to come back before me to see where it goes. Is that acceptable to you for the moment, Mr Dawson?

PN16

MR DAWSON: Yes, yes, your Honour. I mean, I would have assumed Mr Lyons probably would have been briefed on this, because it is a clear understanding between the parties.

PN17

THE SENIOR DEPUTY PRESIDENT: Well, perhaps can you indicate, Mr Dawson, when you say it has been agreed with representatives of the union, were they officers of the union or - - -

PN18

MR DAWSON: They were officers of the union. Was it Mr Thow?

PN19

MR DILLON: Your Honour - - -

PN20

THE SENIOR DEPUTY PRESIDENT: This is Mr Dillon, is it?

PN21

MR DAWSON: Yes.

PN22

MR DILLON: Matt Dillon, Group HR Executive. Your Honour, we specifically asked Mr Thow and union representatives to attend our offices so we can clarify this particular situation and I, too, like Mr Dawson, was of the belief that Mr Thow would have briefed Mr Lyons. However, it was Mr Thow representing the NUW had no problem with what was discussed on this particular day and agreed that the most suitable approach would be that it be mentioned and highlighted in the transcript. Mr Thow did not have any objection to that at all.

PN23

THE SENIOR DEPUTY PRESIDENT: Well, if that is the case it is a bit unfortunate Mr Thow has not passed that on to Mr Lyons, but I should give Mr Lyons the opportunity to confirm that with Mr Thow.

PN24

MR DILLON: If your Honour pleases.

PN25

THE SENIOR DEPUTY PRESIDENT: And in due - well, I won't say in due course, as soon as possible, Mr Lyons, if you could advice my chambers whether or not there is a problem or, on the other hand, whether what Mr Dawson and Mr Dillon have outlined is correct.

PN26

MR LYONS: I can certainly - - -

PN27

THE SENIOR DEPUTY PRESIDENT: If it is correct, then I will proceed to certify the agreement because then I can indicate otherwise I am satisfied of all the necessary matters.

PN28

MR LYONS: Perhaps, sir, if I can undertake to provide advice to your chambers one way or the other by close of business tomorrow.

PN29

THE SENIOR DEPUTY PRESIDENT: That would be acceptable to me. Thank you.

PN30

MR LYONS: Thanks, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: I will deal with it on that basis, Mr Dillon, and - sorry, Mr Dawson, and unless there is a problem, as I say, I will proceed to certify the agreement. If there is a problem then it might be necessary for me to have discussions with the parties either formally or informally to see where the matter goes.

PN32

MR DAWSON: Perhaps I can give the Commission and Mr Lyons a bit of comfort to say that we have made a payment which covered the period - the first payment in this issue in clause 49 which covered the period 1 July 2001 through to the 30th of the 9th and that was the first payment made under that arrangement. So that might help.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that. Well, I will adjourn the matter on the basis that I have outlined and I will await advice from Mr Lyons as to what the union's position is. Thank you.

ADJOURNED ACCORDINGLY [11.01am]