AG2001/7646, Transcript of Proceedings [2002] AIRCTrans 252 (23 January 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VTO2027

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2001/7646

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by national Tertiary Education Industry
Union for certification of the Melbourne
University Student Union Incorporated
Enterprise Agreement 2001

MELBOURNE

10.15 AM, MONDAY, 14 JANUARY 2002

PN1

THE DEPUTY PRESIDENT: Do I have an appearance from you, Ms Frenzel?

PN2

MS R. FRENZEL: You do, your Honour, thank you very much, from the LHMU.

PN3

THE DEPUTY PRESIDENT: The next matter is an application to certify an agreement under section 170LJ of the Act, the application is by the National Tertiary Education Industry Union, so I will hear from you again, Ms Roberts.

PN4

MS ROBERTS: Thank you, your honour. This is an application for certification - - -

PN5

THE DEPUTY PRESIDENT: Sorry, Ms Roberts, just before you speak, I am sorry to do this, but I am going to have an issue with one particular aspect, and Ms Frenzel is now smiling so she knows which particular issue with this agreement. It might be worthwhile - I will hear the submissions from the parties, it might be worthwhile then if we just go into conference for a short period of time to discuss that particular issue because I am not quite sure which way we go about resolving it. It is an issue to do with union - deduction of union dues. So what I will do is hear the submissions from all of the parties, we will go into conference for a little while and then we can come back on the record after that if that suits everybody.

PN6

MS ROBERTS: Thank you, your Honour.

PN7

THE DEPUTY PRESIDENT: Sorry to interrupt you.

PN8

MS ROBERTS: This is an application for certification of an agreement between the National Tertiary Education Union, the Melbourne University Student Union Incorporated, the Australian Municipal Administrative Clerical Services Union and the Australian Liquor Hospitality and Miscellaneous Workers Union Miscellaneous Workers Division and Hospitality Division. It is made under section 170LJ of the Act. It is a Division 2 agreement with a corporation. The NTEU submits that there is sufficient basis upon which the Commission can certify the agreement in the application and statutory declarations that have been furnished with the material submitted.

PN9

But in particular I should draw the Commission's attention to the fact that certification would not result, on balance, in a reduction in the overall terms and conditions of employment of employees covered by the agreement. Further that the agreement includes procedures for preventing and settling disputes between the employer and the employees at clause 10 and that the agreement specifies a date as the nominal expiry date, which is 27 October 2003, being not more than three years after the date of which the agreement comes into operation. That concludes my submissions, if it pleases the Commission.

PN10

THE DEPUTY PRESIDENT: Okay, thank you, Ms Roberts. Ms Davison.

PN11

MS DAVISON: The only thing I have to add, your Honour, is that a valid majority of staff voted and approved of the agreement so the ASU certainly endorses and recommends that it be certified.

PN12

THE DEPUTY PRESIDENT: Thank you, Ms Davison. Mr Duncan - sorry, Ms Frenzel.

PN13

MS FRENZEL: Yes, if the Commission pleases. I would seek to apologise to the Commission at the outset and indicate that the statutory declaration sworn by Brian Daly which forms part of the application and also I believe the statutory declaration of the student union is deficient, and is deficient with respect to section 7.1 of the statutory declaration. I might indicate that I received this file about 20 minutes before the hearing and unfortunately the deficiency is somewhat glaring. Can I indicate to the Commission that the Melbourne University Student Union are not respondents to the Building Services Victoria Award 1994, the Liquor and Accommodation Industry Restaurants Victoria Award 1998 or the Catering Victoria Award 1998.

PN14

I might also indicate that I did actually try to draft section 170XF applications to bring with me but time got the better of me. I would respectfully request that the union be allowed to make a verbal application under section 170XF. I do realise of course that the provisions of section 170XF require that the application be made in writing, but I would say to the Commission that it does have the discretion under section 111(1)(q) to waive that requirements for the purposes of expediting the certification of the agreement.

PN15

I am able to advise the Commission that the section 170XF applications can be made by noon today, if the Commission is minded to exercise its discretion under section 111(1)(q). Apart from that I would commend the application to the Commission as well. If the Commission pleases.

PN16

THE DEPUTY PRESIDENT: Thanks Ms Frenzel. Mr Duncan, you have nothing more to say?

PN17

MR DUNCAN: Nothing, your Honour.

PN18

THE DEPUTY PRESIDENT: Look, because I have got an issue with one particular provision of this agreement, as I said before I think it might be worthwhile just going into private conference and have a little bit of a discussion about that first of all. In respect of your submissions, Ms Frenzel, I don't have any particular issue with what you have put forward, but I think on the basis of those other discussions you may have more time than you had envisaged. So we might retire into conference for a short period of time just to discuss that and see where we can go with it.

SHORT ADJOURNMENT [10.20am]

RESUMED [10.30am]

PN19

THE DEPUTY PRESIDENT: We have had a short private conference regarding primarily the issues raised by clause 27, payroll deductions, in the agreement. We will go forward on the basis that the parties will go away to consider a response to the issues that I have raised with them about clause 27. They will do that between now and Friday of this week. On Friday, the parties will notify the Commission as to what action it - they intend to take in respect of this matter, it being open to them to make written submissions with respect to either the inclusion of the provision as it currently is in the agreement at clause 27, or submissions with relation to the excision of that particular provision and included in those submissions any discretion that they would like to point out to the Commission that might be open to it to certify the agreement in the absence of a further vote.

PN20

In the instance that the parties determine that making submissions is not in their interests at this time and will take a different agreement forward for a vote, then I will keep the file open and enable the parties to notify me directly so that we can relist the matter for hearing at some appropriate point in time in the future. At the same time the issues raised on the record by Ms Frenzel which have now become somewhat academic because the timeframe has now changed, we will be able to have the appropriate amendments made to statutory declarations. On that basis I think we can adjourn the matter. Thank you.

ADJOURNED INDEFINITELY [10.32am]