AG2002/477, Transcript of Proceedings [2002] AIRCTrans 545 (20 February 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2002/477

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act by
Crane Aluminium Systems - A Division of Crane
Enfield Metals Pty Limited and Another for
certification of the Crane Aluminium Systems
(Smithfield) Enterprise Agreement 2001

SYDNEY

11.31 AM, TUESDAY, 5 FEBRUARY 2002

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: We should do the appearances, please.

PN2

MS J. STREIMER: If the Commission pleases, I appear on behalf of our member company, Crane Aluminium Systems.

PN3

MS R. ROSS-KELLY: If the Commission pleases, I appear for the Australian Manufacturing Workers Union.

PN4

THE SENIOR DEPUTY PRESIDENT: Now this is an application under section 170LJ and I note that the application is considerably out of time so which one of you is going first on what is the story here and why is this agreement certifiable.

PN5

MS STREIMER: Thank you, your Honour. You will note that this agreement was approved by employees on 5 September 2001 yet not filed until 9 January 2002, hence being considerably out of time. The reasons that I can give today is that the company took the task on themselves to put together the statutory declaration without the assistance of the Australian Industry Group and we were only informed of it on 20 December and hence that isn't a specific reason for the extreme lateness.

PN6

It is my understanding and Ms Ross-Kelly may go further into this. My reasons would just be that the company handled it themselves and their not knowing that the agreement needed to be filed within a 21 day period and as such and unfortunately at this time I don't have a specific reason except for that the company handled it themselves and unbeknown to us by the time we received it, it was fully signed of by both the union and the company and as such we would leave it to your discretion of section 111(1)(r) and to certify otherwise to send it back to the company.

PN7

THE SENIOR DEPUTY PRESIDENT: Now I note there are four employees covered by the agreement, the turnover in the work force since the valid majority approved.

PN8

MS J. STREIMER: My understanding that again the delays were not deliberate it was rather a misunderstanding and not understanding the processes of an enterprise agreement and that there had been a change in the composition of the work force, that's what I've been told from the company.

PN9

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Ms Ross-Kelly?

PN10

MS ROSS-KELLY: I can support the AIGs application, unfortunately my information is that the company did have the paperwork and they didn't forward it to the union until 11 December which obviously is well after out of time and it was then returned to the company within six days by the union so I can only concur with my colleague that unfortunately it has been held up within the company.

PN11

MS STREIMER: If the Commission requires further explanation for the delay then I'm willing to go back to the company to get more explanation from them but unfortunately I don't have anything more to say today.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, it makes it a little bit difficult.

PN13

MS STREIMER: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: In relation to the substance of the agreement is there anything you wanted to say on that?

PN15

MS STREIMER: Yes, just quickly. Your Honour, you will note that the agreement meets all the requirements of section 170LJ and 170LT, apart from the out of time application, and that the agreement does not disadvantage employees covered by the agreement and that a valid majority did approve of the agreement as it currently stands. Access to the agreement and explanation of the terms occurred as per the requirements of section 170LR with a particular or appropriate regard being given to particular circumstances of employees covered by the agreement. It contains a dispute settling clause in clause 24 and would operate as stated in clause 4 until with an expiry date of 30 June 2002 and as such as would ask the Commission to certify the agreement in its current state.

PN16

THE SENIOR DEPUTY PRESIDENT: Now there are two issues there. The agreement is stated to operate from 1 July 2001.

PN17

MS STREIMER: Rather, your Honour, it would operate from the date of certification with any pay increases being backdated to 1 July.

PN18

THE SENIOR DEPUTY PRESIDENT: Well, you and I both know that but what are the issues for the company and the employees from the fact that it would actually be certified more than six months after its stated date of operation.

PN19

MS STREIMER: I believe the company understands that the agreement isn't operative until certification. I don't have direct directions from the company as to their understanding of the court but I assume that the officer handling this case would inform them of that and is probably closer to when it was originally negotiated back in July. But again if you wish to have further clarification of that I'm willing to go back to the company and come back to yourself, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Okay. I've got a question I want to raise with both of you but why don't I hear from Ms Ross-Kelly at this stage.

PN21

MS ROSS-KELLY: Thank you, your Honour. Just perhaps to clarify or help clarify the lateness, just recording on the notes on the file, that the company was actually previously owned by Boral Windows and part of that was sold to Crane, so whether - I don't have a date on when they changed operations - but perhaps that may help and it is noted here so perhaps it they may help in explaining the delay in terms of. I believe the company operates similar warehouses in Victoria and WA and are perhaps not familiar maybe. Other than that I would just to support what my colleague has said and rely on the statutory declaration signed by John Parkin and recommend the agreement for signing as of today's date.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 24.2 which is part of the dispute settlement procedure. I must say my reading of that suggests that it is a little ambiguous as to what powers you're expecting the Commission to exercise. Can you clarify the intended operation of that clause for me, please?

PN23

MS STREIMER: I would assume that that would mean that the Commission could only arbitrate in regards to issues within the agreement as opposed to general issues that might arise in the workplace during the period in which the agreement was operating.

PN24

THE SENIOR DEPUTY PRESIDENT: That's the situation anyway under section 170LW, isn't it, because under LW the Commission may be empowered to do either or both of the following: (a), to settle disputes over the application of the agreement, and (b), to appoint a board of reference and so on. But also the reference to the Commission is empowered - I'm referring now to 24.2:

PN25

The Commission is empowered following agreement with the relevant unions under section 111AA and 170LW as appropriate to arbitrate over the matter ...(reads)... of this agreement.

PN26

I've got to say I find that confusing. What exactly do you think the parties are intending to empower the Commission to do because it is qualified isn't it?

PN27

MS STREIMER: In 24.3?

PN28

THE SENIOR DEPUTY PRESIDENT: 24.2. It refers to the Commission is empowered following agreement with the relevant unions.

PN29

MS STREIMER: Your Honour, I wouldn't want to guess on this one. It seems that either the company has inserted additional clauses so that they understand it more clearly but in the process confused all the other parties here today or there is a good explanation for what they intend to be done with the agreement, I have no idea. So I suppose at this point we probably have to go back to the company for clarification and if the clause was to be changed then rewrote and undertake the process again.

PN30

THE SENIOR DEPUTY PRESIDENT: Ms Ross-Kelly, anything you want to suggest?

PN31

MS ROSS-KELLY: Yes. Unfortunately, your Honour, I can't offer any clarification, only trying to assume that in trying to be somewhat in their own minds specific, they've perhaps clouded the understanding of that clause. So I unfortunately can't shed any light -

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. In the light of all the factors to be considered here, what I propose to do is to ask you both to make undertakings in relation to two matters. First of all, given the issues of lateness, I'm prepared to exercise the discretion available to me under the act to extend the date of lodgement of the application on the basis that the company gives an explanation that it will explain to the employees the reason for late lodgment and that its late lodgment has no effect on any substantive position for the employees. So that's number one.

PN33

Number two, rather than go through a very convoluted process, given that neither of you are briefed this morning on the matter, I would ask you to make an undertaking or give a written undertaking as to what the powers intended to be given to the Commission under 24(2) are. Is that clear? Did I put that clearly enough? Rather than us exchange ignorance and on the basis of an exchange of ignorance on what the intentions were, send it back and possible revoting and all those sorts of things, if you can give me an undertaking having sought clarification from the people directly involved as to what's intended by clause 24.2, we'll proceed on that basis.

PN34

MS STREIMER: Yes, we're willing to accept those conditions, your Honour. When would you like the written undertaking? By the end of the week?

PN35

THE SENIOR DEPUTY PRESIDENT: Well, can we do that in 14 days? Is that reasonable period taking account of the communications you've got to make?

PN36

MS STREIMER: Yes.

PN37

THE SENIOR DEPUTY PRESIDENT: So rather than certify it today, I'll certify it when those two undertakings are provided and if you can do that within 14 days, we'll take care of the paperwork.

ADJOURNED INDEFINITELY [11.43am]