AG2002/1696, Transcript of Proceedings [2002] AIRCTrans 1281 (15 April 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03399
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2002/1696

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the
Act by Australian Airport Express Pty Limited
and Another for certification of the
Business Development Agreement (AaE/TWU)
2001

MELBOURNE

11.00 AM, TUESDAY, 2 APRIL 2002

PN1

MS F. FIELD: I appear for the Australian Industry Group on behalf of Australian Air Express, with MR D. ANDREACCHIO from the company.

PN2

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

PN3

THE DEPUTY PRESIDENT: Thank you. Ms Field, I think it is your application, isn't it?

PN4

MS FIELD: It is indeed.

PN5

THE DEPUTY PRESIDENT: Yes.

PN6

MS FIELD: Thank you, your Honour. Your Honour, if I could, before I start my submission, explain to you that inadvertently the wrong version of the actual agreement was filed with the Commission.

PN7

THE DEPUTY PRESIDENT: Well, I am very pleased about that, Ms Field, because the front page of mine says, "Without Prejudice", and I am sure you are not entering into an agreement without prejudice.

PN8

MS FIELD: Well, the current one still says "Without Prejudice", your Honour.

PN9

THE DEPUTY PRESIDENT: Does it?

PN10

MS FIELD: We are happy to scribble that out, because it is the final version, but it was my omission that we had a number of versions emailed through, and the wrong one was filed. But if I could perhaps hand these up. I have three copies.

PN11

THE DEPUTY PRESIDENT: Yes. Right. Thank you, Ms Field.

PN12

MS FIELD: Thank you. This is an application made under Division 2 of Part 6B of the Act for certification of an agreement made in accordance with section 170LJ of the Act. The terms of the agreement have been reached between the company and the TWU, on behalf of the employees covered by the employers in-house award, which is the Australian Air Express Consolidated Award 1994. Your Honour, we would be asking that you exercise your discretion under section 111(1)(r) of the Act to extend the 21 day time limit prescribed in section 170LM2. You will have seen that the agreement was approved on 11 February - - -

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MS FIELD: - - - but was not filed till 12 March. Now, I have checked with Ms Tisdale, and I think there was some administrative problems at the TWU.

PN15

THE DEPUTY PRESIDENT: It was the union's problem, was it?

PN16

MS FIELD: Well - - -

PN17

THE DEPUTY PRESIDENT: It is funny, when it is the union's application, it is normally the - - -

PN18

MS FIELD: It is usually our fault. I understand that. Yes. But I think the reality is that somebody was away in the TWU office - - -

PN19

THE DEPUTY PRESIDENT: Right.

PN20

MS FIELD: - - - and that resulted in a delay in filing of the agreement. Your Honour, as you can see, the parties have prepared statutory declarations, which we believe meet the requirements of the Act and the regulations and the rules of the Commission. And we would say that specifically the requirements of section 170LJ and LT have been met, in that the agreement does not disadvantage the employees covered by it. And I would take you to item 7.2 of the company's statutory declaration in that regard and 7.3. A valid majority of employees genuinely agreed - approved the agreement, as I have already said, on 11 February this year. And that is attested to at item 6.2 of the company's statutory declaration.

PN21

Access to the agreement and an explanation of the terms of the agreement occurred in accordance with the requirements of the Act. And again there is reference to that at item 6.7 and 6.8 of the company's statutory declaration. There is a dispute settlement procedure in the agreement at clause 5. And the period of operation of the agreement is set out in clause 1, where it is stated that the agreement will expire on 30 June in the year 2003. We would be asking therefore that you certify the agreement in the terms sought. If the Commission pleases.

PN22

THE DEPUTY PRESIDENT: Okay. Thank you, Ms Field. Before you take your seat again, you have handed up this new document. Am I to assume that there is actually no difference between the documents I had, in substance, and the new document?

PN23

MS FIELD: No, your Honour. I will explain to you where the difference lies. In the agreement that was filed there was a provision at 9.4 in relation to payment of wages. And that has been removed in the - that was removed during the negotiation period. And the document that I have handed up does not have that in it. It is on page 13 of the - - -

PN24

THE DEPUTY PRESIDENT: Of the - - -

PN25

MS FIELD: - - - both documents.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MS FIELD: Yes. And all it says is that:

PN28

Fortnightly pays will be introduced, where it can be facilitated with existing employees at each work place, and new employees will be paid on a fortnightly basis.

PN29

THE DEPUTY PRESIDENT: Okay. So, the agreement, as agreed to by the employees, was the agreement that you handed up - - -

PN30

MS FIELD: That is correct.

PN31

THE DEPUTY PRESIDENT: - - - ie that one which is minus - - -

PN32

MS FIELD: That provision.

PN33

THE DEPUTY PRESIDENT: - - - clause 9.4?

PN34

MS FIELD: Yes.

PN35

THE DEPUTY PRESIDENT: Yes. And that is the only variation?

PN36

MS FIELD: Yes, it is.

PN37

THE DEPUTY PRESIDENT: Okay. Also because this copy does have - and for the purposes of certification it is probably not a big deal - but because this copy does have a title page that says "Without Prejudice" and "Draft", I guess you could do a couple of things. Either give me a new title page, or alternatively under 111(1)(q) I have a discretion to correct or amend, so if you wanted me to exercise that, then I - - -

PN38

MS FIELD: Yes, we would be delighted for you to exercise your discretion in that regard.

PN39

THE DEPUTY PRESIDENT: All right. Thank you, Ms Field - - -

PN40

MS FIELD: Thank you.

PN41

THE DEPUTY PRESIDENT: - - - I will do that. Yes, Ms Tisdale.

PN42

MS TISDALE: Thank you, your Honour. The union supports the submissions made by Ms Field on behalf of the employer, and we would also seek the agreement be certified as of today's date. And we support the application to extend the prescribed time limits under 111(1)(r) and also to correct the - - -

PN43

THE DEPUTY PRESIDENT: And you also accept full responsibility for that delay?

PN44

MS TISDALE: Yes, your Honour.

PN45

THE DEPUTY PRESIDENT: Right. Thank you, Ms Tisdale. All right. Well, on the basis of the submissions that have been made to me, I will exercise the discretion under 111(1)(r) of the Act, and extend the time frame sufficiently to allow for certification of the agreement. And I will also exercise a discretion under 111(1)(q) of the Act, to amend the title page of the agreement, simply to strike out the words "Without Prejudice" from the top of the page, and also the word "Draft" from the bottom of the page. And I can indicate to the parties that on the basis of the material provided to me and also on the submissions made verbally by the parties, that the agreement will be certified with effect from today's date, and will remain in force until - perhaps you could help me?

PN46

MS FIELD: 30 June 2003.

PN47

THE DEPUTY PRESIDENT: 30 June 2003. And on that basis these proceedings are adjourned.

ADJOURNED INDEFINITELY [11.10am]