AG2003/1652, Transcript of Proceedings [2003] AIRCTrans 1429 (16 April 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT10315
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/1652

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by the National Union of Workers, Victorian Branch
and Another for certification of the Gippsland
Environmental Services Pty Ltd and National Union
of Workers (Morwell) Certified Agreement 2002.

MELBOURNE

10.26 AM, WEDNESDAY, 2 APRIL 2003

PN1

MR T. LYONS: I appear for the National Union of Workers.

PN2

THE DEPUTY PRESIDENT: Thank you, Mr Lyons.

PN3

MR LYONS: Your Honour, in this matter, I note no appearance is entered by the employer. As your Honour may be aware from the perusal of the stat decs, the employer's business is located in Traralgon and then operating in Morwell. And my understanding is that explains their non-appearance today, given the agreement also covers four employees. We seek that you certify the agreement, your Honour, from today's date, based on the declaration of Mr Donnelly, Branch Secretary of the union which should appear on the file of the Commission.

PN4

THE DEPUTY PRESIDENT: Just wait till I find it.

PN5

MR LYONS: Yes, sorry, go on. And in an equivalent declaration, your Honour, of Mr Neil Young, who is a director of the employer, we say the declarations make out that the requirements of the Act in relation to the application, have been met

PN6

THE DEPUTY PRESIDENT: Yes.

PN7

MR LYONS: There is one matter, your Honour, and that is that the declarations are deficient in that neither declaration provides the Commission with the information about the day on which the agreement was approved - that is, in fact, blank. Now, my instructions from the organiser - - -

PN8

THE DEPUTY PRESIDENT: I think the employer stat dec - - -

PN9

MR LYONS: The employer's declaration does, I am sorry - - -

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR LYONS: I examined the union's and presumed it was the same. I was going to say, my instructions only occurred on 11 December which is set out in the employer's declaration, that the union's declaration should have also apportioned 11 December. Obviously, your Honour, that means the agreement is some period out of time. Your Honour will note that the agreement covers four employees. My instructions to the organiser are that the composition of that workforce has not changed, the delay was occasioned, I think, by the Christmas break as much as anything else and in the circumstances we ask that you exercise your discretion to allow the agreement to proceed, notwithstanding that it is out of time. Unless your Honour has any questions, I would leave the matter there.

PN12

THE DEPUTY PRESIDENT: I did have one, one if I could. If you go to 7.1 of your statutory declaration, I don't think you advise whether the employer is bound by an award and if so which award?

PN13

MR LYONS: My understanding, your Honour, is - - -

PN14

THE DEPUTY PRESIDENT: And the employer's statutory declaration doesn't, either.

PN15

MR LYONS: Yes. My understanding, your Honour, is that the - I am sorry, your Honour, we have been in error there. This application ought have been accompanied by an application for the determination of the appropriate award for the purpose of the no disadvantage test. This is a new company that has been organised - - -

PN16

THE DEPUTY PRESIDENT: Right. So it is not respondent to an award.

PN17

MR LYONS: No. Now, that application should have been made in writing but, with your Honour's permission, I make it in oral form.

PN18

THE DEPUTY PRESIDENT: Right.

PN19

MR LYONS: To inform your Honour about what these employees do - - -

PN20

THE DEPUTY PRESIDENT: Are you allowed to do that?

PN21

MR LYONS: Well, there is certainly that the requirement needs to be in the required form, however, I think we would lever the Commission under section 111, it could proceed on an oral basis or even on the Commission's own motion.

PN22

THE DEPUTY PRESIDENT: Just take me to the relevant section for designating an award.

PN23

MR LYONS: 170XF, sir.

PN24

THE DEPUTY PRESIDENT: Thank you. Someone remembers the letters. I have it in front of me.

PN25

MR LYONS: Now, to inform your Honour about what these employees do. Gippsland Environmental Services has a cleaning contract for National Foods, in Morwell - - -

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR LYONS: So these employees are engaged in cleaning and low level maintenance at the National Foods Morwell factory.

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MR LYONS: The employer observes the terms and conditions of the Butter Factories and Condensories Award which is the award that covers that work in the dairy industry in the State of Victoria. In the circumstances, we say that that is the appropriate award for the purposes of the no disadvantage test.

PN30

THE DEPUTY PRESIDENT: Yes. So, just to get this straight. That award which is which award, again?

PN31

MR LYONS: The Butter Factories and Condensories Award, sir. And that is the award on which the - - -

PN32

THE DEPUTY PRESIDENT: So that is an award regulation. Terms and conditions of employment for employees engaged in the same kind of work as that of a person employed under the agreement, within 170XF(3)(a) is it?

PN33

MR LYONS: It is, your Honour. On this basis, in the dairy industry most of the employees do performing this work are company employees employed under that award. In this case, National Food has out-sourced this requirement and we say that that award applies for the form of work. For example, it is cleaning tanks and milk dryers and this sort of stuff, your Honour.

PN34

THE DEPUTY PRESIDENT: Yes.

PN35

MR LYONS: Which is the standard form of work performed by our members under the Butter Factories and Condensories Award.

PN36

THE DEPUTY PRESIDENT: All right. Thank you for that.

PN37

MR LYONS: So I do apologise for that, your Honour, that application should have accompanied by it. But as I say, the agreement is - was drawn up based on those conditions and is, in fact, very close to - the agreement itself is very close to the agreement applying to the direct employees of National Foods.

PN38

THE DEPUTY PRESIDENT: All right. Just before we leave that XF issue, I just take you to 170XF(1), it says:

PN39

The employer organisation must apply in writing to the Commission - - -

PN40

MR LYONS: Apologies, your Honour.

PN41

THE DEPUTY PRESIDENT: That is all right. It says that yourself, the NUW:

PN42

...must apply in writing to the Commission.

PN43

MR LYONS: Yes.

PN44

THE DEPUTY PRESIDENT: And you say what?

PN45

MR LYONS: Well, I think we say, your Honour, that your powers under section 111 give you the ability to waive procedural requirements. So in the circumstances, given the material that my submission, on transcript, that you can proceed without a need for compliance with the written requirements.

PN46

THE DEPUTY PRESIDENT: I would have to waive the rules as well, wouldn't I?

PN47

MR LYONS: Yes, I think that is right - - -

PN48

THE DEPUTY PRESIDENT: Let us get this straight. First of all, I would waive compliance with section 170XF, pursuant to section 111(1)(q).

PN49

MR LYONS: Yes.

PN50

THE DEPUTY PRESIDENT: Then I would waive compliance with the Australian Industrial Relations Commission's rules which require, I think, various statutory declaration, a written application in a prescribed form - - -

PN51

MR LYONS: A written application, yes.

PN52

THE DEPUTY PRESIDENT: - - - notice to be given, of some sort, I think. And is there anything in the regulations I have to waive, as well?

PN53

MR LYONS: No, sir. I think it is the rules, it is the rules of the Commission in conjunction with the provision of the Act. Now I might say that, I think, properly characterised, what I request you to do is to waive so much of the rules as - and the provisions of the Act as go to that matter being in writing - - -

PN54

THE DEPUTY PRESIDENT: Yes.

PN55

MR LYONS: - - - and it would be our submission that we have complied, substantially - well with the substantive provisions and requirements of the Act which is that your Honour be satisfied that, first of all, the award is the appropriate award. That is the substantial test involved in the provision of the Workplace Relations Act. Now, given that we say we have done that, it is essentially a procedural requirement and really on a par with a request that the matter proceed out of time.

PN56

THE DEPUTY PRESIDENT: Yes. Could you take me to the appropriate rule? Here it is, 63, I think, rule 63. It says:

PN57

An application to the Commission must be in accordance with form R45. And the Commission fixes a time and place and the registrar gives notice of the time and place.

PN58

63, Mr Lyons.

PN59

MR LYONS: Yes, I am having some difficulty locating it. Sorry, was that regulation 63 or rule 63?

PN60

THE DEPUTY PRESIDENT: Sorry, rule 63, Mr Lyons, in the form R45.

PN61

MR LYONS: Yes. So, your Honour, I think your Honour is right, in terms of dispensing with the rules we would need relief from compliance with all three of the provisions of rule 63.

PN62

THE DEPUTY PRESIDENT: Sorry?

PN63

MR LYONS: In respect of it both being in writing, the fixing of a time and place and the hearing of the application and the notice. Now, however, we say this is not a matter about which there would be any controversy.

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR LYONS: There are no other organisations, for example, who might have any stake in this matter.

PN66

THE DEPUTY PRESIDENT: Yes.

PN67

MR LYONS: And on that basis, your Honour can proceed to resolve the matters today without the need for further hearing.

PN68

THE DEPUTY PRESIDENT: All right. Thank you for that. Well I am not aware of any policy reasons which would lead me to refuse the application. It does seem to be, essentially, a procedural set of requirements. Using my own knowledge of the area, I am not aware of any other organisation that would have an interest and should, therefore, lead me to refuse your application or to waive such requirements. So, therefore, I am prepared to waive the requirements of the Act and the rules to the extent necessary to enable you to make the submission - make the application you did, orally and for me to grant it. Before I do, I would just ask you if the agreement - this is dealt with in the statutory declarations, is it not. I take it that all the provisions of the agreement are above the award?

PN69

MR LYONS: Yes, on - - -

PN70

THE DEPUTY PRESIDENT: Yes, it says it.

PN71

MR LYONS: - - - each and every provision, sir, is well above the award.

PN72

THE DEPUTY PRESIDENT: Yes.

PN73

MR LYONS: These members, in fact, by negotiation of this agreement, have enjoyed very significant pay increases. You will note that the full time rate is now some $20 an hour on this agreement which is obviously well above some $8 an hour above the award rate for equivalent work.

PN74

THE DEPUTY PRESIDENT: Yes, thank you for that.

PN75

MR LYONS: So there is very great benefits to the employees.

PN76

THE DEPUTY PRESIDENT: No, no, thank you very much for that.

PN77

MR LYONS: If the Commission pleases.

PN78

THE DEPUTY PRESIDENT: All right. I will also extend time, as sought by you, Mr Lyons. On the basis of the statutory declarations and the submissions put today, I will certify the agreement as sought. Thank you very much. You are excused if you wish to leave.

SHORT ADJOURNMENT [10.30am]

RESUMED [12.05pm]

PN79

THE DEPUTY PRESIDENT: Sorry, I call on the other matter again, Mr Lyons just for this reason. I don't think I expressly designated the award as sought by you and I am just making it clear that that was done by me and intended to be done by me prior to the certification of the agreement as sought. The decision to certify was based on a designation of the award as sought by you. Thank you, Mr Lyons.

PN80

MR LYONS: If the Commission pleases.

ADJOURNED INDEFINITELY [12.05pm]