AG2002/939, Transcript of Proceedings [2002] AIRCTrans 553 (22 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT02401

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2002/939

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by English Style Confections Pty
Limited and Another for certification
of the English Style Confections Pty
Ltd Certified Agreement 2001

MELBOURNE

2.17 PM, WEDNESDAY, 6 FEBRUARY 2002

PN1

MS K. IRWIN: I am from the Australian Industry Group on behalf of English Style Confections.

PN2

MS R. JASTRZEBSKI: I appear for the Australian Manufacturing Workers' Union.

PN3

THE DEPUTY PRESIDENT: Thank you. Who would like to start?

PN4

MS IRWIN: Your Honour, this is an application made under Division 2 of Part VIB of the Workplace Relations Act for certification of an agreement in accordance with section 170LJ. The terms of the agreement were reached between the company and AMWU on behalf of employees covered by the Confectioners' Award 1980. Your Honour, we would seek for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21-day limit prescribed in section 170LM(2). The Commission will have noted that while the agreement was approved by employees on 12 December 2001, it was not in fact filed until 25 January 2002.

PN5

Your Honour, statutory declarations were forwarded to both the employer and the AMWU on 18 December, and the union's documents were not received back at the AIG office until 25 January, and the agreement was lodged on the same day. I believe that the delay was due to key members of the AMWU staff being absent on annual leave, but I will let Ms Jastrzebski elaborate on that. Your Honour, the parties have prepared statutory declarations which we believe meet all of the requirements of the Act, regulations and rules of the Commission.

PN6

THE DEPUTY PRESIDENT: Yes.

PN7

MS IRWIN: We further submit that all of the requirements of section 170LJ and 170LT have been met, namely, the agreement we submit does not disadvantage the employees covered by it. A valid majority of employees genuinely approved the agreement on 12 December. Access to the agreement and an explanation of the terms of the agreement occurred in accordance with the requirements of section 170LR, it was appropriate, having regard to the particular circumstances of the employees covered by the agreement. The agreement contains a dispute settlement procedure at clause 7, and the period of operation of the agreement is set out in clause 5, where it is stated that the agreement will expire on 1 June 2003.

PN8

Your Honour, as I was revising the agreement this morning, prior to the hearing, I noted a typographical error in clause 11.2(a) of the agreement.

PN9

THE DEPUTY PRESIDENT: 11.2(a)?

PN10

MS IRWIN: Yes, your Honour.

PN11

THE DEPUTY PRESIDENT: Just bear with me for a second. The clause reads $15 per week or $7, and so on?

PN12

MS IRWIN: Yes. You will note there that it says $7 plus the 2001 safety net adjustment.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MS IRWIN: And it should read 2002 SNA.

PN15

THE DEPUTY PRESIDENT: Yes, I see.

PN16

MS IRWIN: I only picked that up just prior to the hearing, your Honour. I can provide a substitute page.

PN17

THE DEPUTY PRESIDENT: Well, this is the agreement that is approved by a valid majority and has been consulted about and so on, isn't it?

PN18

MS IRWIN: Yes, it is.

PN19

THE DEPUTY PRESIDENT: Is it open to us now at this stage, after all that has been done, to vary the content? I must say I have my doubts.

PN20

MS IRWIN: I guess, your Honour, I would not see it as a variation to the content per se, as remedying a typographical error. Certainly my understanding is it was the intention of the parties that it would be the 2002 SNA. That is when the - 2002 is when the increase is due. However, I am prepared to consult with the organiser at the site to ensure that that is - - -

PN21

THE DEPUTY PRESIDENT: Could you point me to the provision of the Act which enables me to - either you to make this change at this late stage or me to make the change, or both?

PN22

MS IRWIN: I do not believe there is a provision. I am not aware of the provision, your Honour. However, I have been involved in other matters where typographical issues have been picked up and substitute pages provided.

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MS IRWIN: However, if your Honour is not open to that, then I will be directed by your Honour in that matter.

PN25

THE DEPUTY PRESIDENT: All right. Perhaps we could adjourn into conference just briefly.

OFF THE RECORD

PN26

THE DEPUTY PRESIDENT: Okay, Ms Irwin.

PN27

MS IRWIN: Thank you, your Honour. Before I continue with the statutory test, your Honour, if I may raise with you a minor typographical error in clause 11.2 of the agreement.

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MS IRWIN: Your Honour, we are able to provide a substitute page to amend that typographical error. We would submit that it does not change the substance of the agreement as consulted on with employees and which they voted on.

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MS IRWIN: And we would therefore seek leave to amend the clause under section 111(1)(p) of the Workplace Relations Act. If the Commission pleases. Further, in relation to the statutory tests, your Honour, we would submit that the agreement applies only to a part of a single business and that part being a geographically distinct - an operationally distinct part of the organisation, being the production area, and employees covered by the Confectioners' Award. Furthermore, your Honour, we would submit that the agreement does not disadvantage employees covered by it, as compared to the Confectioners' Award.

PN32

The agreement does not contain discriminatory provisions nor does the agreement contain preferential provisions for union members, your Honour. Certainly, your Honour, there are members of the AMWU at the site, and the AMWU is eligible to cover that work. The agreement was genuinely approved by a valid majority of employees employed at the time. These employees were provided with access to the agreement throughout the negotiation process. Shop stewards and management representatives were both available to answer questions that employees had, and I believe that the union organiser was also involved in that consultation process.

PN33

The agreement does cover employees who are described in clause 6.5 of the statutory declaration. Does your Honour require me to go through those - - -

PN34

THE DEPUTY PRESIDENT: I do have one question, Ms Irwin. Correct me if I am wrong, but didn't the accompanying statutory declaration state that the agreement does not apply to part of a single business? Section 170LU(8) states that - well requires us to assess whether it applies to part of a single business that is not geographically distinct or operationally or organisationally distinct. Could you just reiterate the submission you put on that point?

PN35

MS IRWIN: My apologies, your Honour. The agreement does apply only to a part of a single business.

PN36

THE DEPUTY PRESIDENT: Yes.

PN37

MS IRWIN: And that part of the single business is an operationally distinct part of that single business.

PN38

THE DEPUTY PRESIDENT: Right.

PN39

MS IRWIN: My apologies, I may have tripped over my words.

PN40

THE DEPUTY PRESIDENT: No, no, I might have misheard you, I was not sure. So on that basis you say that the requirements of section 170LU(8) are met, are they?

PN41

MS IRWIN: Indeed, your Honour. Certainly that is reflected at item 2.4 of the company's statutory declaration.

PN42

THE DEPUTY PRESIDENT: Yes, thank you, Ms Irwin.

PN43

MS IRWIN: If the Commission has nothing further, we would seek to have this agreement certified.

PN44

THE DEPUTY PRESIDENT: Thank you, Ms Irwin. Ms Jastrzebski.

PN45

MS JASTRZEBSKI: If your Honour pleases, the AMWU concurs with the submission made on behalf of the company. We would also request that an extension of time is granted with the Commission using its powers under section 111(1)(r). The reason for the late application was the union's fault in this matter. It arrived in our office the day that the office closed down for Christmas, and we did not have an officer authorised to sign available until the 22nd, and that was the day we signed it and sent it immediately to the AIG.

PN46

The organiser responsible for the site has been there within the last fortnight, and I spoke to him on Monday also. There has been no substantial change to the workforce and the employees are in fact very keen that this agreement is certified. Aside from the late application, we believe that all the requirements of the Act have been met and we request that this be certified. If your Honour pleases.

PN47

THE DEPUTY PRESIDENT: Thank you. In accordance with section 111(1)(r) of the Workplace Relations Act 1996, I extend the time as sought by both the AMWU and the employer. In accordance with my powers under section 111(1)(p) I grant the application as sought by the employer and the AMWU to amend clause 11.2(a) as sought. I do so on the basis that in no way is the substance of consultation with employees or approval by a valid majority of employees affected by the amendment, and on the basis of consent between the AMWU and the employer.

PN48

I am also prepared to certify the agreement as sought by the employer and the AMWU, from today's date, was it?

PN49

MS IRWIN: Yes, your Honour.

PN50

THE DEPUTY PRESIDENT: Yes, and I will do so from today's date. I will issue a formal order to that effect as soon as possible. Is there anything else?

PN51

MS IRWIN: No, your Honour.

PN52

THE DEPUTY PRESIDENT: Thank you very much. On that basis, we will adjourn.

ADJOURNED INDEFINITELY [2.40pm]