AG2003/6005, Transcript of Proceedings [2003] AIRCTrans 3999 (11 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4535

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2003/6005

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Lynch Manufacturing Group and Another
for certification of the Lynch Manufacturing
Group - National Union of Workers -
National Certified Agreement 2003

MELBOURNE

11.31 AM, FRIDAY, 22 AUGUST 2003

PN1

MS E.J. RADLEY: I seek leave to appear on behalf of Lynch Manufacturing Group.

PN2

MR T. KENNEDY: I appear on behalf of the National Union of Workers.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted. I assume that leave is not opposed. Leave is granted.

PN4

MS RADLEY: Thank you, your Honour. This application is made under division 2 of part VIB of the Workplace Relations Act. The Lynch Manufacturing Group - National Union of Workers - National Certified Agreement 2003 is an agreement made between Lynch Manufacturing Victoria Pty Ltd, Lynch Manufacturing Queensland Pty Ltd, Lynch Manufacturing Western Australia Pty Ltd, Lynch Manufacturing New South Wales Pty Ltd and the National Union of Workers.

PN5

Your Honour, it is our submission that the companies constitute a single employer for the purposes of section 170LB(2). The companies together form a common enterprise. In addition, the four companies are related corporations under the Corporations Act 2001. Your Honour, I tender a copy of section 50 of the Corporations Act and an affidavit attaching company searches in relation to the four companies.

EXHIBIT #R1 EXTRACT FROM CORPORATIONS ACT 2001

EXHIBIT #R2 AFFIDAVIT OF ELIZABETH JANE RADLEY

PN6

MS RADLEY: Each of the companies is a wholly owned subsidiary of the same holding company, which is the Lynch Manufacturing Group Pty Ltd. We submit that on this basis, under section 50C of the Corporations Act, the four companies party to this agreement are each related to the others. Your Honour, the evidence of matters necessary for certification are set out in the statutory declarations filed in support of this application. I would make one note. I think both of the statutory declarations refer to the nominal expiry date as 30 June 2003. It should, in fact, be 30 June 2005 as set out in clause 5 of the agreement. On this basis, your Honour, we ask the Commission certify the agreement.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Kennedy.

PN8

MR KENNEDY: Thank you, your Honour. Your Honour would also be aware there is a section 170XF application before - - -

PN9

MS RADLEY: Yes, that is right, yes.

PN10

MR KENNEDY: - - - to support the application for this agreement. The statutory declaration that the union would seek to rely upon, filed by Greg Sword, General Secretary of the union, we submit meets the requirements for certification of this agreement. It refers to a number of awards within the statutory declaration. The XF application simply seeks to make certain that there is - out of caution, that all awards that may impact on the operations have been mentioned for the purpose of this exercise today. But subject to any questions you may have, we would be seeking certification effective of today's date.

PN11

THE SENIOR DEPUTY PRESIDENT: In relation to this matter, I am satisfied that an appropriate determination should be made under section 170XF and that will be done. I am also satisfied that the agreement should be certified and an appropriate certification will be issued as soon as possible. In particular, just in relation to that latter matter, I indicate that I am satisfied that the employer businesses referred to in the agreement can, for the purposes of certification and should, for the purpose of certification, be treated as a single business. As I indicated, an appropriate certification will be issued as soon as possible and the matter is adjourned on that basis.

ADJOURNED INDEFINITELY [11.36am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 EXTRACT FROM CORPORATIONS ACT 2001 PN6
EXHIBIT #R2 AFFIDAVIT OF ELIZABETH JANE RADLEY PN6