AG2003/5736, Transcript of Proceedings [2003] AIRCTrans 3379 (11 August 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 3841

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/5736

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Phillip Island Homes for the Aged
Association Inc and Others for certification
of the Melaleuca Lodge, ANF and HSUA
Certified Agreement 2002

MELBOURNE

11.25 AM, THURSDAY, 24 JULY 2003

PN1

MR M. RAHILLY: I seek leave to appear for the applicant, Melaleuca Lodge.

PN2

THE SENIOR DEPUTY PRESIDENT: Leave is granted.

PN3

MR P. GILBERT: I appear for the ANF.

PN4

MR J. O'MALLEY: I appear on behalf of the Health Services Union.

PN5

THE SENIOR DEPUTY PRESIDENT: This one is not quite as late but it is still fairly late. At least the HSUA has signed a statutory declaration I think on this occasion.

PN6

MR RAHILLY: Yes, I believe so, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Rahilly, are the reasons for the application for the extension of time the same as you have advised in the previous matter?

PN8

MR RAHILLY: They are, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: This one is 13 days late, is it?

PN10

MR RAHILLY: Yes, your Honour, and I can say to your Honour that I have sought instructions in relation to this matter also and the instructions are that the number of employees have not changed to any extent that would bring about a different outcome were the vote taken today or on 30 June when application was made. Your Honour will notice that Melaleuca Lodge is situated on Phillip Island and the turn over of staff in facilities in country areas is in this industry always low, so that the advice I have given I would submit should be sufficient to allow your Honour to exercise your discretion.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Gilbert, you don't need to repeat what you have said on previous occasions but if there is something to add by all means.

PN12

MR GILBERT: No, I don't, only to elaborate on my milk bar comment just to say that Mr Battie is in fact the owner of a local fish and chip shop in Cowes if you happen to be around that way and that is just I guess evidence of my earlier submission, but we have nothing further to add.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr O'Malley.

PN14

MR O'MALLEY: I would just like to endorse the comments made by Mr Rahilly and Mr Gilbert and I would encourage the Commission to certify the agreement with regards to section 111(1)(r) of the Act.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. I notice, Mr O'Malley, that there is a few of the questions on the statutory declaration that have just not been filled in on behalf of the HSUA.

PN16

MR O'MALLEY: It just doesn't seem to get any better this morning, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: It is not your day, Mr O'Malley. But I point out to you so that you can raise it with - - -

PN18

MR O'MALLEY: Take that as a given, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, I am sure you will. But important questions have not been answered. Part 5 has been left blank. I don't know from the HSUAs statutory declaration whether it has at least one member employed in the business whose employment will be subject to the agreement or whether the HSUA is entitled to represent the industrial interests of that person or persons. Now, that is, I would have thought, an important question that really only the HSUA can provide me with evidence of. The employer has purported to do so, as has the ANF, but how do they know?

PN20

MR O'MALLEY: I can only take this under advisement, your Honour, and if it suits the Commission I could arrange for an appropriately completed statutory declaration to be submitted.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, given what I intend to do with this that is something you might consider because I will adjourn this to the same basis that I adjourned the previous matter to give the parties an opportunity to either do the exercise again or file statutory declarations to persuade me to exercise my discretion. I am sorry to be the bearer of these ill tidings but I have to be satisfied.

ADJOURNED INDEFINITELY [11.30am]