AG2002/647, Transcript of Proceedings [2002] AIRCTrans 3300 (28 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BARTEL

AG2002/647

SOUTHERN MALLEE DISTRICT COUNCIL
(ASU) ENTERPRISE AGREEMENT 2002

Application under section 170LS of the Act
by Australian Municipal, Administrative,
Clerical and Services Union, South Australian
and Northern Territory Branch and Another
re agreement about industrial dispute (Division 3)

ADELAIDE

1.30 PM, MONDAY 12 AUGUST 2002

Continued from 13.6.02

PN49

THE COMMISSIONER: This matter was originally before the Commission on 13 June this year. At that time the ASU was represented by Mr Darryl Payne and the counsel by Ms Lyn James. There was some discussion in respect to questions from the Commission on the intent of the dispute settling procedure and in particular clause 11.1.4 of the agreement which reads as follows:

PN50

If the issue still remains unresolved either party may refer the matter to the Australian Industrial Relations Commission for conciliation and/or arbitration. The parties agree to accept the decision of the AIRC.

PN51

In response to my questions to the parties in relation to that clause they requested the opportunity to seek out further information and I was subsequently advised by the parties that the intent of that subclause is to effectively abandon any right of appeal or right to seek leave to appeal which otherwise exists under the Act. The intention of that subclause is therefore that a decision of the Commission arising out of a matter - sorry, arising out of a dispute referred under clause 11 will be regarded as final by the parties to the agreement.

PN52

I have expressed my concern to both parties about whether they can effectively remove statutory rights which otherwise exist but assuming that it can be done I have also expressed concern that such an approach has,in my view, serious consequences for natural justice and procedural fairness. I would therefore strongly urge the parties to revisit this aspect of the agreement in light of my comments when they sit down to renegotiate the agreement or in advance of that time.

PN53

However, the agreement in total and when measured against the statutory criteria under section 170LT, section 170LR and 170LS of the Workplace Relations Act meets the various requirements. I indicated to the parties that I could process this matter ex parte and this was agreed by them. The Commission therefore approves the application for certification. The agreement will operate from today's date, being 12 August 2002 and have a nominal expiry date of 24 February 2004.

PN54

The agreement will be binding on the Southern Mallee District Council in respect of all employees employed pursuant to the parent award as set out in clause 7.1 and on the Australian Municipal, Administrative, Clerical and Services Union and its members employed at the council. A certificate will be issued in due course and I have asked that a copy of this transcript be provided to both parties.

ADJOURNED INDEFINITELY [1.35pm]