AG2003/6740, Transcript of Proceedings [2003] AIRCTrans 4049 (16 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4401

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

AG2003/6740

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Corning Cable Systems Pty Limited and
Others for certification of the Corning
Cable Systems - Clayton Certified
Agreement 2003-2004

MELBOURNE

9.34 AM, THURSDAY, 28 AUGUST 2003

PN1

MR G. PELS: I appear for the Australian Industry Group on behalf of Corning Cable Systems Proprietary Limited.

PN2

MR T. LYONS: I appear for the National Union of Workers.

PN3

MS R. JASTRZEBSKI: I appear for the Australian Manufacturing Workers' Union.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Pels.

PN5

MR PELS: Yes, your Honour. This is an application made under division 2 of part VIB of the Act for certification in accordance with section 170LJ. And the terms of the agreement are between the company and the NUW, the AMWU and the CEPU on behalf of employees covered by the Rubber, Plastic and Cable Making - General - Award 1998 and the Metal, Engineering and Associated Industries Award 1998. And we seek the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21-day limit prescribed in the Act.

PN6

The Commission will have noted that while the agreement was approved by employees on 3 July 2003 it was not filed until 7 August, 14 days late. And, your Honour, the reason for the delay in that was the fact that documentation had to be re-sent to the unions and other parties and there was a delay in response by some parties to the signing. And the Commission will have noted that some parties to the agreement haven't signed a statutory declaration to date.

PN7

I can advise - I am instructed, there has been no change to the workforce during this time and the parties to the agreement have prepared statutory declarations which we believe meet all the requirements of the Act, regulations and rules of the Commission - well, perhaps not the rules of the Commission, your Honour. The agreement, we submit, does not disadvantage employees covered by it. A valid majority of employees employed at the time generally approved the agreement on 3 July 2003. Access to the agreement and explanation of the terms were in accordance with the requirements of section 170LR and were appropriate under the circumstances.

PN8

There is a disputes clause at clause 14 of the agreement and the period of operation of the agreement is set out in the agreement where it is stated the agreement will expire on 31 March 2004. We, therefore, request the Commission to certify the agreement in the terms sought effective from today's date.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Lyons.

PN10

MR LYONS: If the Commission pleases. The NUW supports the submissions and the applications in respect of the exercise of the Commission's discretion for the agreement to proceed out of time. I have instructions from our organiser, Ms Allison, who can confirm what is put to you on behalf of the employer that the composition of the workforce has not changed since the taking of the vote. The union relies on the declaration of Mr Donnelly dated 1 August which should appear on the file of the Commission. We say that makes out the requirements of the Act in relation to the application have been met. Your Honour, unless you have any questions, I would leave the matter there. If the Commission pleases.

PN11

THE SENIOR DEPUTY PRESIDENT: Ms Jastrzebski.

PN12

MS JASTRZEBSKI: Your Honour, the AMWU hasn't signed the agreement or the stat dec and it is also - the late application is due to our internal processes which was that the organiser responsible for the site thought that, given the circumstances surrounding the industry that Corning Cables works in, the authorised officer would sign but the agreement was, in too many regards, outside the policy requirements and the organiser was mistaken and so the authorised officer was not able to sign the agreement and that is the position we are in at the moment.

PN13

THE SENIOR DEPUTY PRESIDENT: So you oppose the certification?

PN14

MS JASTRZEBSKI: No, we are not opposing the certification, we are simply not signing the agreement.

PN15

THE SENIOR DEPUTY PRESIDENT: Well, the agreement has you as a party bound. Whether you sign it or not doesn't matter if you are a party bound. What do you say I should do about that?

PN16

MS JASTRZEBSKI: We would not want to prejudice the NUW members or even our members who have voted to support the agreement. It is simply a case of the policy requirements.

PN17

THE SENIOR DEPUTY PRESIDENT: Should I delete the reference to the AMWU?

PN18

MS JASTRZEBSKI: We would leave that in your discretion. My instructions were that if we could be left in as a party, given that that is the agreement that the employees voted on, then that would be the case. But, given that we haven't signed the agreement if we need to be removed then - - -

PN19

THE SENIOR DEPUTY PRESIDENT: The test is not whether you have signed, the test is whether you ever agreed to be bound by the agreement. Whether you ever agreed to the agreement. That is the test - - -

PN20

MS JASTRZEBSKI: The officer with the authority to sign did not agree.

PN21

THE SENIOR DEPUTY PRESIDENT: Is there someone in your organisation with authority, who at some stage said "Yes, we agree to this document"?

PN22

MS JASTRZEBSKI: No, not with authority, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: So at no stage have you agreed to the document, is the bottom line, isn't it?

PN24

MS JASTRZEBSKI: That is the bottom line, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Well, I will delete the AMWU as a party bound. Is there any objection to that course?

PN26

MR PELS: No, your Honour, no.

PN27

MR LYONS: No, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Is there anything else?

PN29

MR PELS: Well, the issue might be similar for the CEPU as well, your Honour. I am not sure whether they have signed or even - - -

PN30

THE SENIOR DEPUTY PRESIDENT: Well, they haven't signed but they are not here telling me that they don't agree to it. Whereas Ms Jastrzebski, frankly, is. They have been notified of the hearing.

PN31

MR PELS: My instructions is they didn't participate - similar to the AMWU - they didn't participate in the negotiations although the employees, like the AMWU members, voted or understood that they would be a party but I think the circumstances are almost identical to the AMWU.

PN32

THE SENIOR DEPUTY PRESIDENT: So the CEPU never took part in the hearings - in the negotiations?

PN33

MR PELS: Not the organiser, no, the delegate.

PN34

THE SENIOR DEPUTY PRESIDENT: And no official from the CEPU has ever indicated their agreement to it.

PN35

MR PELS: That is right.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, I had better delete the CEPU too. Is there any objection to that course?

PN37

MR LYONS: No, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Mr Pels, you may have to assist me in this. How many references are there to those two organisations within the document? There is one in 6.1.1, I notice. 7.3, the Parties Bound clause.

PN39

MR PELS: Yes.

PN40

MR LYONS: Your Honour, 4.3 defines union as being respectively the three unions. I think the same applies to that provision.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. So unions will mean the NUW. Why don't I do it this way? Is there anything else the parties have got to say? No?

PN42

MR LYONS: No, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: I will certify it subject to those deletions to the references to the AMWU and the CEPU but subject to - the certification document won't issue until the employer or the employer's representative have notified my office of the clauses in which the reference to the AMWU and the CEPU need to be deleted from.

PN44

MR PELS: Perhaps we can assist the Commission by providing a new document with those deleted?

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR PELS: Or highlighted, or deleted.

PN47

THE SENIOR DEPUTY PRESIDENT: Very well. Well, having regard to the material contained on the file in this matter and also the submissions put to me, I am satisfied that I should grant the necessary extension of time for the lodgment of the application in this matter. I am also satisfied that I should certify the agreement known as the Corning Cable Systems - Clayton - Certified Agreement 2003-2004. The certification of the agreement will come into force from today's date and remain in force until 31 March 2004. The certification is subject to the deletion to the references of - or to the Australian Manufacturing Workers' Union and the Communications, Electrical and Plumbing Union throughout the certified agreement. I have asked the employer to provide me with a clean copy with the deleted references.

ADJOURNED INDEFINITELY [9.43am]