C3927/500, Transcript of Proceedings [2001] AIRCTrans 844 (11 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 6987

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

C NO 39275 OF 2000

APPLICATION FOR CERTIFICATION OF
AGREEMENT

APPLICATION UNDER SECTION 170LJ OF THE ACT
BY MAYNE NICKLESS LIMITED AND TWU FOR THE
CERTIFICATION OF MPG LOGISTICS SOUTH AUSTRALIA
GROCERY AGREEMENT 2000

MELBOURNE

9.55 AM, MONDAY, 23 APRIL 2001

Continued from 15.12.00

PN29

MS J. TISDALE: I appear for the Transport Workers' Union.

PN30

THE COMMISSIONER: Yes, Ms Tisdale, please proceed.

PN31

MS TISDALE: Thank you, Commissioner. This is an application made under division 2 of part 6B of the Workplace Relations Act for certification of an agreement made under section 170LJ. All of the requirements of the Act, regulations and rules of the Commission have been met in the making of this agreement except in relation to section 170LM which requires that an application to certify the agreement be made within 21 days of the agreement's approval. The agreement was approved on 28 July 2000 but not filed with the Registry until 20 November 2000 making it approximately three months out of time.

PN32

This agreement has had a difficult history, not on the ground but administratively getting it through the Commission. The Union received the paperwork minus the company statutory declaration early in August last year. We returned the completed originals of our documentation back to Mayne Nickless on 24 August. The company then contacted us several months later. It seems that they had lost the original documentation and we filed the papers with the Commission based on our copies and that was done on 20 November.

PN33

Now, in relation to the turnover that has occurred since - between 28 July and 20 November last year, I am informed that at the time of the vote there were nine employees working under this agreement, eight were members of the TWU and one was a non-member and since the time of the vote one member has left and he was replaced by a casual employee. At the time of the original vote I am instructed that all voted in favour. So there has been no turnover that would impact on the nature of the approval.

PN34

THE COMMISSIONER: I presume that more than one person voted?

PN35

MS TISDALE: Yes.

PN36

THE COMMISSIONER: Thanks.

PN37

MS TISDALE: Yes, they all - we are not sure whether the casual employee who has since been employed since the time of the vote, whether he voted, but the remaining eight voted in favour.

PN38

THE COMMISSIONER: Fine.

PN39

MS TISDALE: So I would seek the Commission exercise its discretion under section 111(1)(r) to extend the prescribed time limit. In relation to the other requirements of the Act, particularly under section 170LT, there is also an issue with this agreement in relation to whether it passed the no disadvantage test. You may recall that this agreement was listed before yourself on 15 December 2000 and at that time the union sought an adjournment and it had come to our attention that there was potentially a problem in relation to the no disadvantage test.

PN40

I am in a position to hand up, if you would, Commissioner, correspondence that was prepared for Commissioner Lewin which outlined an analysis of an agreement that was identical in turn, hand that up. That analysis showed that if employees worked to the maximum flexibility allowed under this agreement they could be substantially disadvantaged compared to the award to the extent of some $300 a week, but in practice the employees were not working to that flexibility. They were working standard Monday to Friday, 9 to 10 hour shifts per day. The problem with the way the agreement was structured is the longer they worked or the more they worked on times that would normally incur penalty rates, the more they would be disadvantaged, but they were not in practice actually working those hours.

PN41

So we have sought an undertaking from the company that would in essence protect the employees working under this agreement from having their standard arrangements changed and that the company has, only after several months, agreed to a form of undertaking which I provided to you by fax on 2 April.

PN42

THE COMMISSIONER: Yes, I think it was faxed by you on 2 April at 5.37 in the evening.

PN43

MS TISDALE: Yes.

PN44

THE COMMISSIONER: Thank you, Ms Tisdale.

PN45

MS TISDALE: Thank you, Commissioner.

PN46

MR IRONMONGER: Thank you, Commissioner.

PN47

THE COMMISSIONER: Stay seated, Mr Ironmonger.

PN48

MR IRONMONGER: We would support the application and submissions made by the union. The company has got an undertaking here which will not breach the no disadvantage test. Unless the Commissioner has any question, we would seek the certification.

PN49

THE COMMISSIONER: Well, I will grant both applications, that is an extension of time pursuant to section 111(1)(r) and in light of the undertaking I am satisfied that the no disadvantage test is met given that I must certify the agreement and therefore I do so. My associate will give you a signed and sealed copy of the certificate. This matter is adjourned.

ADJOURNED INDEFINITELY [10.01am]