AG2003/3593, Transcript of Proceedings [2003] AIRCTrans 2100 (2 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2003/3593

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Sydney Turf Club and Another for certification
of the STC & MEAA Customer Service Enterprise
Agreement 2003

SYDNEY

10.01 AM, FRIDAY, 16 MAY 2003

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2

MS C.MONTGOMERY: If the Commission pleases, I appear on behalf of the Media Entertainment and Arts Alliance.

PN3

MR C. LLOYD: Your Honour, I appear for the Sydney Turf Club.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I've had an opportunity to peruse an agreement and the statutory declarations lodged in support. I have a couple of questions about the agreement but who wants to address me first on any matters additional to those contained in the statutory declaration.

PN5

MR LLOYD: Just a little bit of background your Honour, I'm not sure whether you would like to hear that. Just by way of background the STC and MEAA, an enterprise agreement 2000 was certified on 27 March 2000, it had a nominal expiry date of 22 March 2003. That agreement covered wages and conditions for casual customer service employees working on race days and other functions and events held at the club's Rosehill Gardens and Canterbury Park racecourses. Your Honour, with a view to building upon and approving that agreement in order to meet some changing business needs and some employee needs negotiations commenced in November 2002 between the STC union delegates and officials from the MEAA. The result is the STC and MEAA Enterprise Agreement 2003 that we seek to have certified today.

PN6

The agreement was approved by a valid majority of employees, voting was conducted by postal ballot with voting papers distributed to employees on 9 April and voting closed on 25 April. Votes were counted jointly by the club and the union on 29 April 2003 and the result was 48 yes and 16 no. As a result the application before you today your Honour was filed with the Commission on 30 April 2003 accompanied by the agreement and statutory declarations from both the Sydney Turf Club and the union.

PN7

In relation to the technical requirements prescribed in the Act your Honour the agreement was provided to employees more than fourteen days before approval was given. The terms of the agreement were explained to all employees through briefing sessions, a fairly comprehensive letter and contact people who were made available to answer questions that any of the employees had. As I indicated it was approved by a valid majority of employees, it does not disadvantage employees when compared with the relevant award and it also contains procedures for the resolution of disputes. The nominal expiry date proposed is no more than three years after the date on which it will come into operation.

PN8

As a result of all that your Honour we seek certification of the agreement by the Commission with the nominal expiry date of three years from certification.

PN9

THE SENIOR DEPUTY PRESIDENT: In relation to the disputes settlement procedure I see that the parties have agreed in step five that the Commission will have a role in it and the role is discussed as:

PN10

When a matter is referred to it the Commission will exercise its functions pursuant to the Workplace Relations Act 1996.

PN11

Have the parties agreed just what that means, what it is that the Commission can do with a dispute if it is referred to it?

PN12

MR LLOYD: Your Honour, I think the role we sort for the Commission was to facilitate the resolution of the dispute. I don't think we're proposing any particular action or direction that the Commission would take in that regard just to simply facilitate that resolution if we can't come to a resolution.

PN13

THE SENIOR DEPUTY PRESIDENT: Since a High Court decision a little while back now that considered what the role for the Commission is and what the nature of the legal standing of the power exercised by a Commission under a disputes settlement procedure it has been necessary for parties to turn their mind with some particularity as to what they have agreed the Commission can do because the Commission is exercising, is empowered by the parties to do something to settle the dispute, it's not empowered by the Act. All the Act requires is that a certified agreement has a disputes settlement procedure, it doesn't say that the Commission has to have a role in it. So therefore you properly have the disputes settlement procedure where you have decided for a role for the Commission and it is unclear to me for the moment that the parties have decided what the role will be.

PN14

It is not uncommon for the parties to agree that the role of the Commission will be to either attempt to conciliate the dispute and if it can't to arbitrate it, there will be an end to it. It is also not uncommon for the parties to agree that the Commission will only conciliate. Do you want to talk about that. Ms Montgomery?

PN15

MS MONTGOMERY: Thank you your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Let's go off transcript for a short time.

OFF THE RECORD [10.07am]

RESUMES [10.16am]

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Lloyd?

PN18

MR LLOYD: Thank you your Honour. In relation to step five of the dispute procedure we've discussed what we would like to see from that step and in essence we would like to see the parties be able to refer the matter to the Commission to conciliate in the first instance and should conciliation be unsuccessful to arbitrate the matter.

PN19

THE SENIOR DEPUTY PRESIDENT: Ms Montgomery?

PN20

MS MONTGOMERY: We support the change to the step five of the disputes settlement procedure.

PN21

THE SENIOR DEPUTY PRESIDENT: I just read it as clarification of what the parties mean, I don't understand there to be any change, there will be no alteration to the words, it's just this transcript will be placed on this file and should a dispute arise and not be resolved well when it comes to the Commission there is some indication as to what the role is going to be, that's all that is now achieved. Anything else you want to add to the submissions made by Mr Lloyd.

PN22

MS MONTGOMERY: I do, thank you your Honour. We are here today to support the application made under Division 2, Part 6B, Section 170LJ of the Workplace Relations Act for certification of the STC and MEAA Customer Services Enterprise Agreement 2003. Your Honour, the agreement relates to part of a single business, namely those employees engaged as customer service employees. The business is also a constitutional corporation within the meaning of the Act. The Media Entertainment and Arts Alliance has constitutional coverage of the employees to be engaged as customer service employees. The agreement passes the no disadvantage test, a valid majority generally approved the agreement on 29 April 2003. A disputes settling procedure is set out in clause 23 of the agreement and the agreement specifies a nominal expiry date of 22 March 2006.

PN23

Given that all other requirements are fulfilled we ask the Commission certify the agreement from today's date. If the Commission pleases.

PN24

THE SENIOR DEPUTY PRESIDENT: Just one question then arising out of that submission Ms Montgomery, I know where you got the date of 22 March 2006 because it is three years from the date referred to in clause 2.2. I had rather thought that clause 2.1 would mean, no I might have misunderstood it, I had thought it might run three years from the date of certification, namely today but if it is to be three years from 22 March I now understand that. I would therefore propose it to go until 21 March 2006.

PN25

MR LLOYD: Your Honour, I think the intention was that the expiry date be three years from certification with the relevant wages clauses kicking in from 22 March.

PN26

THE SENIOR DEPUTY PRESIDENT: The parties are perfectly entitled to agree where the benefits that flow from the agreement might come into operation, it's just the Act doesn't let us certify it before today's date. So should I revert then to 15 May 2006, three years from today?

PN27

MR LLOYD: Yes your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Ms Montgomery, are you happy with that?

PN29

MS MONTGOMERY: I am your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Excellent thanks. Based on the statutory declarations lodged in support of this application and the submissions made this morning I am satisfied that each of the relevant requirements of the Act have been met and the agreement should be certified. It will be known as the STC and MEAA Customer Service Enterprise Agreement 2003, it will come into operation on today's date, 16 May 2003 and remain in operation until 15 May 2006. A certificate will issue in due course and a copy will be provided to the parties. The Commission now adjourns.

ADJOURNED INDEFINITELY [10.20am]