AG2002/3477, Transcript of Proceedings [2002] AIRCTrans 3503 (11 September 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

AG2002/3477

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Exide Australia Pty Ltd and
Another for certification of the Exide
Australia Pty Ltd - Padstow (Enterprise
Bargaining) Certified Agreement 2002

SYDNEY

9.36 AM, MONDAY, 26 AUGUST 2002

Adjourned sine die

PN1

HIS HONOUR: This is matter AG3477 of 2002. It's an application under section 170LJ of the act lodged on 9 August 2002 for certification of an agreement to be known as the Exide Australia Pty Ltd - Padstow (Enterprise Bargaining) Certified Agreement 2002. Could I have appearances, please?

PN2

MS S. PHILLIPS: If it pleases the Commission, I appear for the Australian Industry Group on behalf of member company Exide Australia Pty Ltd.

PN3

MS M. KERR: If it please your Honour, I am appearing for the CEPU.

PN4

HIS HONOUR: Yes. I note that this agreement is between Exide and the CEPU. It is to apply at Exide Australia Pty Ltd, 55 Bryant Street, Padstow premises, to all employees bound by the terms of the ME and AI Award parts 1 and 5 so far as those provisions relate to the parties referred to in the clause. The agreement was lodged on 9 August. That's nine days out of time having regard to the approval on 10 July. It will be necessary to apply for an extension of time. It will end upon certification, bargaining period 1658 of 2002. It has been signed. It applies to some 88 employees, so it would appear. The agreement has an appendix B in relation to the settlement of disputes procedure. It appears to empower the Commission insofar as it has a step that if conciliation is unsuccessful either party may then call upon the AIRC to arbitrate.

PN5

I am of the view that that does amount to an arbitration but out of more abundant caution, for what purpose it may serve I'm not sure, I ask the parties to indicate whether that also entails that the parties agree to be bound by the determination that might be made in the event of the AIRC arbitrating pursuant to appendix B. Is that a matter as to which a commitment can be given at this stage? Otherwise it's a bit unsure. There is a commitment to arbitrate but the normal form of an empowerment would be both to have that form of submission to arbitration plus an agreement to be bound by the outcome. Yes?

PN6

MS PHILLIPS: Your Honour, I am not in a position to

PN7

this morning to say whether that should result in a binding outcome upon the parties but could I liaise with our member and get back to the Commission if that's unclear?

PN8

HIS HONOUR: Yes, very well. Perhaps that might be covered by a letter in due course, I think, Ms Phillips. In addition the wage rates schedule, page 26 of 26: is not explained in the document, as far as I can see, although it appears to be the prescription of hourly rates for each of the classification positions within the relevant parts of the award.

PN9

That is satisfactory but I think it also needs a letter, unless I have missed something in the agreement, that says those are the rates to apply for the purpose of, I think, clause 8.1 which sets out rates of pay in broad terms and explains they will increase by 3.3 per cent over the final rate. I think what I would need in the letter that might be sent about the position as to the dispute settlement provision, is an indication that a page that is unexplained is attached after the signatures, in the copy I have, and says, "New pay rates as from 1.7.01".

PN10

So it's a bit hard to work out what they have to do with anything, I think, because there are no rates, are there? In fact I don't know, when I look at it, that there is a date of operation of that increase. So presumably it applies from the date of certification of the agreement. If those are the operative rates to which the 3.3 per cent is to be applied then I would require a section 170LD undertaking that those are the rates upon which the increases operate or otherwise a 170LB undertaking indicating what the rates are upon which the increases operate.

PN11

So, just running through those matters: the extension of time - there needs to be an application in relation to that. I am prepared to treat and approve appendix B as an empowerment of the Commission for the purposes of section 170LW but I would request that, if it is the parties' intention that should there be an arbitration by the Commission at the behest of one party then the parties are agreed that they should be bound by that arbitration determination as though it is a provision of the agreement, that be spelled out. That will avoid confusion in, I hope, the not unlikely event that the provision has to be availed of. Finally there is the 170LB undertaking as to the wage rates schedule to apply. Yes?

PN12

MS PHILLIPS: Thank you, your Honour. If I might first deal with the extension of time: can I make a formal application for the Commission to exercise its discretion under section 111(1)(r) to extend the 21-day prescribed limit. There were delays in us receiving the documentation from the company in relation to that.

PN13

If I might deal with that undertaking in relation to the wage rates also through the letter after liaising with the member, if that's appropriate to the Commission?

PN14

HIS HONOUR: Very well then.

PN15

MS PHILLIPS: Also I believe there was an issue with the Registry in the fact that the application page was not dated by the company. I do have a faxed copy from the company that has a dated application page, if I might tender that.

PN16

HIS HONOUR: Very well. I'll substitute that for the one that was lodged.

PN17

MS PHILLIPS: Would the Commission also like a further copy of the original page for the file?

PN18

HIS HONOUR: No. I think that will be satisfactory. I'll mark that as AIG1.

EXHIBIT #AIG1 DATED APPLICATION PAGE

PN19

HIS HONOUR: Yes, Ms Kerr?

PN20

MS KERR: Thank you, your Honour. The CEPU supports the application for the extension of time under section 111(1)(r). We support the submissions of the AIG and are happy to sign any letter if the Commission feels it is appropriate. We support the application for the certification of this agreement. If it pleases the Commission.

PN21

HIS HONOUR: Yes. Well, perhaps what could be done, out of more abundant caution, when the AIG has prepared the letter a copy might be sent to the CEPU and Ms Kerr and if that's endorsed there would be two letters on the file. Essentially what is necessary, as I understand the provisions of the Act in relation to both broad areas is that there is, as far as practicable, a coherent empowerment.

PN22

Since the parties have been put to the additional trouble of having a 170LB undertaking as to the operation of the agreement, it is best that that be in a form that leaves little doubt that the parties have both committed to the matter. That goes both to the possible operation of 170LW at a future time. In that respect I observe that there can be mutual advantages in having that provision empowered. It is not necessarily only a union party that may benefit from having arbitration, in my observation.

PN23

Secondly, in relation to the question of pay rates, in the hopefully unlikely event that the matter has to be tested at court or the subject of some proceedings, there is a necessity, in my view, that an agreement that displaces an award should be sufficiently clear so that what is displaced from an award in relation to pay rates is ascertainable, if not on the face of the agreement at least ascertainable by reference to LB undertakings associated with the certification of the agreement.

PN24

Subject to that, I'm satisfied that the agreement should be certified. Its content and the process for making it are in compliance with the requirements of the Act and Rules. My satisfaction to that effect is founded upon a scrutiny of the statutory declarations, the undertakings which have been given or foreshadowed this morning. The scrutiny of the statutory declarations has been converted into reference to a check-list compiled by my associate and completed and signed by me following my perusal of the proposed agreement. That check-list is retained as part of the file and is a component of the decision in this matter. I extend time to the extent necessary to permit the lodgement of the agreement.

PN25

In accordance with section 170LT I certify the agreement as AG817761. That certification is in print 921340. The effect of the certification is to end the bargaining period 1658 of 2002. A copy of the certificate has been signed and sealed. It contains an approval of the agreement which goes to the 170LW point. That approval is contingent upon the receipt in due course of the 170LB undertakings as foreshadowed in the hearing. A copy of that agreement will be provided to the parties prior to the calling of the next matter.

ADJOURNED INDEFINITELY [9.48am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIG1 DATED APPLICATION PAGE PN19