AG2002/4498, Transcript of Proceedings [2002] AIRCTrans 4301 (31 October 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT428

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2002/4498

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the act
by Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union -
Vehicle Division Victorian Region for
certification of the Australian Commercial
Catering Pty Ltd Enterprise Bargaining
Agreement 2002

MELBOURNE

3.49 PM, TUESDAY, 15 OCTOBER 2002

PN1

MR A. COLE: I appear on behalf of the Australian Manufacturing Workers Union.

PN2

THE DEPUTY PRESIDENT: Yes, Mr Cole.

PN3

MR COLE: Thank you, your Honour. Your Honour, we ask that the Commission use its power - its discretion under section 111(1)(r) in respect of this particular application. If the Commission takes itself towards the agreement itself and look at the dates that the agreement was signed off and also the statutory declarations, you will find they were signed off on 7 and 8 August, respectively. The Commission would be aware that following that period of time - for a substantial period of time thereafter there was certain happenings outside of 440 Elizabeth Street in Melbourne which didn't enable certain divisions of the union to be able to get to their offices and that is a result of the late lodgement.

PN4

So I can also blame the union, but not my particular section of it, your Honour.

PN5

THE DEPUTY PRESIDENT: Right.

PN6

MR COLE: But in terms of the agreement, your Honour - - -

PN7

THE DEPUTY PRESIDENT: Just before you move onto that Mr Cole can you advise me as to whether there has been any significant change to the workforce.

PN8

MR COLE: There has been no change at all, your Honour.

PN9

THE DEPUTY PRESIDENT: Thank you.

PN10

MR COLE: Your Honour, in terms of the agreement, for housekeeping purposes, it has been brought to my attention that there is one error in the statutory declarations as against the agreement. The agreement contains, at clause 6, the Catering Victoria Award 1998 AW772681 as the underpinning award and that is correct. Whereas, in terms of the statutory declarations, it has the Commercial Catering Interim Award 1994. Your Honour, that is a successor award, it is a simplified award 1998. I just make that clarification.

PN11

Your Honour, parties to the agreement lodge supporting statutory declarations consistent with requirements specified in the act. Accordingly, the union submits that the application made pursuant to section 170LJ of the act meets the requirements specified in 170LT of the act. In support of this the union submits that the following - the - consistent with section 170LT(5) approval of the agreement was made by a valid majority of the persons employed at the time where the employer would be subject to the agreement. They generally approved the agreement on 26 July 2002.

PN12

In relation to section 170LT(7). The union submits the explanation of the terms of the agreement to persons as mentioned in paragraph 170(or)(2) and points 5.1 and 5.6 in the statutory declarations filed by the union and the company in support of the application did take place in ways appropriate having regard to persons particular circumstances and needs. In respect of section 170LT(a) the agreement does include procedures preventing and settling industrial disputes between the parties that matters arising under the agreement and such procedure detailed in clause 16 of the agreement.

PN13

In regards to section 170LT(10), the agreement at clause 7 specifies three years from April 14 2002 as a nominal expiry date of the agreement. Further, the union submits that the agreement satisfies section 170LT(2), the no disadvantage test, by ensuring that no employees be disadvantaged as a result of the agreement. According to the union the application meets the necessary requirements specified in section 170LT of the act for the certification of the agreement and the agreement ends a bargaining period BP2002/1923. Finally, we respectfully submit the agreement be certified by the Commission effective from today's date. If it pleases the Commission.

PN14

THE DEPUTY PRESIDENT: Yes, thanks, Mr Cole. I am generally satisfied with all the documentation. I have one question for you, Mr Cole, and if I can just take you to clause 13 - sub-clause 13.5 of the agreement itself and I - when I read that particular provision, it is a right of entry provision, Mr Cole. When I read that provision it sort of - it reads potentially as ambiguous to me in that it may be that right of entry is only granted to duly accredited officials of the relevant union.

PN15

In which case I have no problem with it or it may be that right of entry is only granted to duly accredited officials of the vehicle division to the exclusion of any duly accredited official of any other union who might have a right of entry under the terms of the act. I wonder if you could tell me what it means.

PN16

MR COLE: Your Honour, we are not seeking to exclude any other union to use their right of entry to attend the premises. Though I must say, in terms of this particular agreement, it is somewhat unique moving forward. The agreement is a Greenfields site and as such, in 1989, the Council of Trade Unions at their congress agreed to this to be a single union site. I think that is where the terminology - historical this terminology - in terms of the right of entry. We do not seek to disbar other unions from entry to the site.

PN17

THE DEPUTY PRESIDENT: So the intent of clause 13.5, if I now understand you correctly is simply to state that it will only be duly accredited officials of the vehicle division of the AMWU who will have right have entry. That it is not the intent of that clause to prevent access by any other duly accredited official of another union who may have access by virtue of the act.

PN18

MR COLE: No. That is correct, your Honour.

PN19

THE DEPUTY PRESIDENT: Yes. Yes. Thank you. Thanks, Mr Cole. On the basis of the submissions of Mr Cole and the documentation received, I am satisfied that all of the requirements of the act have been met. I am satisfied as to the explanations given by Mr Cole as to the reasons for the agreement being out of time and I will duly extend the time period by the necessary amount to allow for certification. The agreement therefore will be certified with effect from today's date and the agreement will expire on 14 April 2005.

ADJOURNED INDEFINITELY [3.56pm]