AG2003/3603, Transcript of Proceedings [2003] AIRCTrans 2078 (2 June 2003)

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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 2676

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/3603

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Makmur Enterprises Pty Limited and
Another for certification of the Makmur
Enterprises Pty Limited Certified
Agreement 2003

MELBOURNE

10.38 AM, THURSDAY, 15 MAY 2003

PN1

MR L. STEWART: I am from the AIG appearing on behalf of the company and applicant in that matter. Sir, MR C. GREENWAY is also appearing on behalf of the company with me today. Your Honour, this is an application under division 2 of part VIB of the Act for certification of an agreement in accordance with section 170LJ and the terms of the agreement were reached between the company and the AMWU. And that is to cover the employees working under the Food Preservers Award of 2000, sir.

PN2

Sir, we do note that the agreement is some three weeks out of time and we would seek for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend that 21-day time frame prescribed by section 170LM(2) of the Act. Sir, a vote of the employees and a valid majority was reached on 20 March 2003. However, the agreement wasn't filed until 1 May. Sir, in relation to the delay I am instructed that there was administrative processing problems with the documentation travelling between the company, the Australian Industry Group and the AMWU head office. And I am putting back to my friend that she can give you further submissions in relation to that delay at the union's end but there was a short delay in processing at the AIG as well, sir.

PN3

However, I have Mr Greenway with me today who can provide you - he has provided me with instructions that there has been no change to the workforce during that time. And, sir, in fact the agreement has been applied in the workplace, if you like, since the vote and in fact the employees will be back-paid pursuant to clause 9 of the agreement back until 1 March of this year. And, sir, on that basis we would say that it would be appropriate for the Commission to exercise its discretion to extend the time frame and we would be asking the Commission to do so.

PN4

THE DEPUTY PRESIDENT: So the administrative delay, there was some delay at the AIG, a short delay you say.

PN5

MR STEWART: That is correct, sir.

PN6

THE DEPUTY PRESIDENT: Where was the bulk of the time?

PN7

MR STEWART: The bulk of the time was with the AMWU, sir, and maybe my friend can talk to you further about that issue.

PN8

THE DEPUTY PRESIDENT: I will hear from her in a minute but before I do, can I just take you to clause 16 of the agreement?

PN9

MR STEWART: Certainly.

PN10

THE DEPUTY PRESIDENT: Could you just indicate to me why you think that that meets the requirements of section 170LI of the Workplace Relations Act?

PN11

MR STEWART: Having just seen this clause for the first time, sir, I would say that this is obviously an agreement which has been struck between the parties. It is a third generation agreement and it is possible that this is a roll-over of existing terms and conditions in that regard. But to address your question in relation to LI of the Act - - -

PN12

THE DEPUTY PRESIDENT: Employment relationship, does it pertain to the employment relationship?

PN13

MR STEWART: Yes. And, sir, if it was to be deemed that clause 16 was not a matter pertaining to the employment relationship between the parties we would say that the removal of such clause would not be fatal to the application proceeding today. But, again, I would have to seek the instructions of my friend on that. But it is possible that this is a roll-over, as I said, being a third generation agreement.

PN14

THE DEPUTY PRESIDENT: Well, just remind me. There is a Full Bench decision in Atlas Steels which, I think, looked to the issue of union dues and, correct me if I am wrong, concluded that the fact that it was in a certified agreement, was an agreed matter, brought it within the scope of the employment relationship notwithstanding High Court authority to the contrary. Is that correct?

PN15

MR STEWART: Well, sir, we would be seeking to rely upon that for the inclusion of this clause into this agreement. And while we have that Full Bench authority - - -

PN16

THE DEPUTY PRESIDENT: You are not seeking to rely on the High Court authority.

PN17

MR STEWART: Well, while we have this Full Bench authority, sir, we would be seeking to rely upon that. This was obviously a matter that has been agreed between the parties. I think it has been in existence between the parties for a while now and is one that is in accordance with the wishes of both the parties. So, therefore, sir, on the basis - - -

PN18

THE DEPUTY PRESIDENT: No, the fact of agreement is important, I think, on the authority of Atlas Steels.

PN19

MR STEWART: That is correct, sir, and we would be seeking to rely upon that.

PN20

THE DEPUTY PRESIDENT: All right. Thank you very much. Ms Jastrzebski. I hope I have pronounced your name correctly.

PN21

MS R. JASTRZEBSKI: Getting closer. The AMWU - - -

PN22

THE DEPUTY PRESIDENT: I will take that as a compliment.

PN23

MS JASTRZEBSKI: We support the submission made. We would also request that the Commission grant an extension of time. This matter before you and the one following were both lodged out of time and there was a combination of reasons which included myself being on annual leave for over a week, there were school holidays and the secretary of the division was looking after her own children and just - that was basically what caused the problems of the delay in the application being lodged.

PN24

THE DEPUTY PRESIDENT: Right.

PN25

MS JASTRZEBSKI: Aside from that we believe that the requirements of the Act have been met and we would request that the agreement be certified. If the Commission pleases.

PN26

THE DEPUTY PRESIDENT: Thank you very much. On the basis of the submissions put today I will, first of all, extend time as sought by the parties. Secondly, on the basis of the statutory declarations filed and the submissions put today I am satisfied that the agreement meets the statutory test for certification including section 170LI regarding which I propose to follow the authority of the Full Bench in Atlas Steels. And I will certify the agreement as sought by the parties and a certificate will be issued as soon as possible. Thank you very much. You are excused, if you wish to leave.

PN27

MR STEWART: Thank you, sir.

ADJOURNED INDEFINITELY [10.44am]