AG2003/3298, Transcript of Proceedings [2003] AIRCTrans 2079 (2 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 2677

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/3298

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by the Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union -
Food and Confectionery Division, Victoria
Region, and Another for certification of
the Steric Trading Pty Limited Certified
Agreement 2003

MELBOURNE

10.45 AM, THURSDAY, 15 MAY 2003

PN1

MS R. JASTRZEBSKI: I appear for the AMWU, your Honour.

PN2

THE DEPUTY PRESIDENT: Thank you very much.

PN3

MS JASTRZEBSKI: This is an application under division 3, section 170LS, an agreement between Steric Trading Proprietary Limited and the AMWU. The first thing I should address with this one is the late application. The vote was made by the 15 employees on 28 February and we were not able to lodge the application until 22 April and we would request that an extension of time was granted with the Commission using the powers under section 111(1)(r). The organiser for the site, Khamal Selikal, went out there last week and assured me that there has been no change to the workforce and that the employees are very keen to have the agreement certified. The agreement is covered under the Food Preservers (Interim) Award 1986 and was - - -

PN4

THE DEPUTY PRESIDENT: Does that award still exist? I think it is - correct me if I am wrong, it may have been cancelled.

PN5

MS JASTRZEBSKI: Actually, I beg your pardon. Yes, I think it should be the Food Preservers Award 2000.

PN6

THE DEPUTY PRESIDENT: Yes. So what effect does that have on your statutory declaration?

PN7

MS JASTRZEBSKI: It would make the statutory declaration incorrect and I believe it would also mean that the clause that I have circled here in the agreement itself would need to be amended also, your Honour. And I could provide - - -

PN8

THE DEPUTY PRESIDENT: I am sorry, which clause?

PN9

MS JASTRZEBSKI: 1.7 in the agreement itself.

PN10

THE DEPUTY PRESIDENT: Of the agreement?

PN11

MS JASTRZEBSKI: Yes. It is obviously an oversight in the drafting.

PN12

THE DEPUTY PRESIDENT: Well, I think you are permitted - I am not sure that there is a problem with that in terms of the statutory tests. I mean, it is not unknown. It has happened in one of the previous matters today for an agreement to preserve the terms of an award that has been superseded for whatever reason the parties are keen on an earlier form of an award. Is that what you are doing there or?

PN13

MS JASTRZEBSKI: Well, the 1986 award is still referred to fairly consistently by the Food and Confectionery Division.

PN14

THE DEPUTY PRESIDENT: Let me get this straight. That award has been superseded by the 2000 award, hasn't it?

PN15

MS JASTRZEBSKI: That is right.

PN16

THE DEPUTY PRESIDENT: Which is the simplified form?

PN17

MS JASTRZEBSKI: Yes.

PN18

THE DEPUTY PRESIDENT: The '86 award is the unsimplified, if I could use that term.

PN19

MS JASTRZEBSKI: That is right.

PN20

THE DEPUTY PRESIDENT: Yes. Well, the significance of that, firstly, is - the no disadvantage test, firstly, is the employer respondent to the 2000 award?

PN21

MS JASTRZEBSKI: Yes.

PN22

THE DEPUTY PRESIDENT: Are you sure of that?

PN23

MS JASTRZEBSKI: I am 80 per cent sure, your Honour.

PN24

THE DEPUTY PRESIDENT: I will need to be 100 per cent sure for the purposes of the statutory tests.

PN25

MS JASTRZEBSKI: Absolutely.

PN26

THE DEPUTY PRESIDENT: Secondly, have you assessed the agreement against the terms of the 2000 award?

PN27

MS JASTRZEBSKI: Yes, that would have been done during the negotiations by the industrial officer that is responsible for the Food and Confectionery Division.

PN28

THE DEPUTY PRESIDENT: Right. "Would have been done", that means it might have been done, or probably would have been done. Again, that is not enough. I need to be certain on the issue. So what we could perhaps do on that issue is this. You could provide me with a letter following today's hearing which encloses the respondency of the company to the 2000 award, firstly. And, secondly, provides me with a satisfactory submission on the issue of the no disadvantage test.

PN29

MS JASTRZEBSKI: Absolutely.

PN30

THE DEPUTY PRESIDENT: For example, are the terms of the agreement equal to or in excess of the terms of the 2000 award? Are there any reductions? If so, and so on.

PN31

MS JASTRZEBSKI: Absolutely.

PN32

THE DEPUTY PRESIDENT: All right. We can deal with them on that basis and you can look at clause 1.7 That is a matter for you, I don't require it. I am not sure there is a problem there in terms of the statutory tests. I don't think there is. If there is you tell me.

PN33

MS JASTRZEBSKI: And the letter that we would provide would simply support the submission, is that correct?

PN34

THE DEPUTY PRESIDENT: Yes. We would also deal with that particular issue, what you want done regarding clause 1.7, if anything. But, as I said, I don't think there is a problem with it in terms of the statutory tests.

PN35

MS JASTRZEBSKI: Okay. Thanks, your Honour. What else is there? The agreement has the required procedures for prevention and settlement of disputes and has a nominal expiry date of 1 January 2004. And apart from the late application we believe that the requirements of the Act have been met.

PN36

THE DEPUTY PRESIDENT: Terrific. Thank you very much for those submissions.

PN37

MS JASTRZEBSKI: Thank you.

PN38

THE DEPUTY PRESIDENT: On the basis of the submissions put I will, first of all, extend time as sought by you. Secondly, subject to satisfactory information being provided to you relating to the respondency of the employer to the award and the no disadvantage test within seven days and provided that is satisfactory, having regard to the statutory declarations and the submissions put today I will certify the agreement as sought by you. Thank you very much.

PN39

MS JASTRZEBSKI: Thank you.

ADJOURNED INDEFINITELY [10.50am]