AG2003/6028, Transcript of Proceedings [2003] AIRCTrans 3276 (5 August 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10476

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2003/6028

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
by Visionstream Pty Limited to vary the
Visionstream Certified Agreement 2001

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MELBOURNE

FRIDAY, 18 JULY 2003

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PN1

THE COMMISSIONER: I am in a position to announce a decision in this matter. This is an application to vary the Visionstream Certified Agreement 2001 to remove ambiguity and uncertainty. The agreement has a nominal expiry date of 2 January 2004. It is the submission of Visionstream that the agreement in relation to clause 5, 13(iv) and 15(iii) is uncertain in its application. In relation to clause 15(iii) the matter has some urgency as a consequence of serious legal proceedings being foreshadowed by CoINVEST Limited.

PN2

Mr Absolom, for the CEPU, is unable to agree to the application as the union has not been able to fully consider the matter. Mr Absolom seeks an adjournment of the matter. In ordinary circumstances, it would be very important to hear the considered views of the other party to the agreement. An agreement, unlike an award, is the creation of the parties and the Commission's ability to determine the terms of the agreement is highly regulated by the provisions of the Workplace Relations Act 1996. However, the foreshadowed proceedings by CoINVEST Limited places a sense of urgency on the matter where consideration needs to be given to the application made by Visionstream.

PN3

Having heard Mr Butler, on behalf of Visionstream, I am satisfied there is uncertainty in relation to the operation of clause 5 and clause 13(iv). Indeed, Mr Absolom says that the area of consultation that needs to be undertaken does not go to the operation of those clauses. In relation to clause 15(iii), I am satisfied that Mr Butler has established a prima facie case for the grant of the application.

PN4

The question is whether or not I should vary the agreement in the absence of substantive merit submissions from the CEPU. Given the particular circumstances of this case in relation to CoINVEST and the difficulty confronting the CEPU in consulting with its members, I have decided that the best course is to vary the agreement in the manner sought by Visionstream. I do so against a specific reservation. That reservation is that the CEPU can seek a relisting of this matter should it wish to put submissions.

PN5

My decision in this matter has been taken against the background of the urgency apparent to me, and will not prejudice any further submissions the CEPU would wish to make or, indeed, any further submissions that might be sought to be raised by Visionstream. The variation will occur from the date of certification and, again, leave is granted to the CEPU should they wish to have the matter relisted. Thank you for your participation. The matter is adjourned sine die.

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