AG2002/236, Transcript of Proceedings [2002] AIRCTrans 3524 (12 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

WT05290

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2002/236

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Pascoe's Pty Ltd for certification
of the Pascoe's Pty Ltd Factory and Warehouse
Employees Certified Agreement 2002

PERTH

10.04AM, TUESDAY, 27 AUGUST 2002

Continued from 22.8.02

PN65

THE DEPUTY PRESIDENT: Good morning, gentlemen. The same appearances as last week I'm assuming. Look, I've listed this for hearing again in considering whether I certify the matter or not. There were a few concerns that I had with respect to the agreement so I thought I would list it and canvas those concerns. I think unless there is any objection from you, I think it appropriate maybe pursuant to 170NA conciliate on the issue or at least go off record to canvas some of those concerns. Can we go off record for the moment?

OFF THE RECORD [10.05am]

RESUMED [10.13am]

PN66

THE DEPUTY PRESIDENT: Yes, well we have had some discussions on this application for the certification of agreement and perhaps you have some comments, Mr Uphill?

PN67

MR UPHILL: Thank you, your Honour. In the event that it is determined, your Honour, that this agreement doesn't meet the no disadvantage test we would be seeking to put written submissions to you attempting to persuade you pursuant to section 170LT(3) of the legislation that nevertheless you should certify the agreement because it is not contrary to the public interest. I can undertake to have those written submissions to you within seven days and a copy of those submissions to Mr Starkey, the employees' representative for consideration by him and employees with respect to a written view to be forwarded to the Commission about those submissions on behalf of the company.

PN68

THE DEPUTY PRESIDENT: Okay. Thank you Mr Uphill. So Mr Starkey you appreciate that what is being said here is that if the agreement does not meet the no disadvantage test in the event that I find that then the company still wishes the agreement to be certified and they will be putting submissions to me about the - it is not contrary to the public interest for it to be certified. They will be putting written submissions to me, they will be doing that within seven days and you will have the opportunity to canvas those written submissions with your fellow employees.

PN69

If you wish to make any comment about that, if you can contact my chambers I'm sure the company and Mr Uphill will give you the numbers and how to do that and in any event my associate here can held you immediately after these proceedings. So Mr Uphill will put submissions to me in writing within seven days. He will forward a copy of that to you. You have a further seven days to canvas that with your fellow employees and contact my chambers if you wish to prior to me making a determination. Thanks, Mr Starkey.

PN70

Mr Uphill, for the record I suppose I have formed the preliminary view that the agreement is not certifiable on the basis of it not meeting the no disadvantage test, so I will require being convinced that it is not contrary to the public interest in order for it to be certifiable. The reason that I found it not meeting the no disadvantage test is identified in the statutory declaration, one provision in particular, the overtime provisions being less than the relevant award and the submissions you made regarding that element have not convinced me that it complies with the no disadvantage test.

PN71

On that basis I will need to be convinced that it is not contrary to the public interest for the agreement to be certifiable and I will adjourn this matter on that basis.

ADJOURNED INDEFINITELY [10.16am]