AG2003/6984, Transcript of Proceedings [2003] AIRCTrans 4112 (17 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4521

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2003/6984

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(2) of the
Act by Air New Zealand Limited to vary the
Air New Zealand Certified Agreement 2003

MELBOURNE

10.02 AM, TUESDAY, 2 SEPTEMBER 2003

THIS HEARING WAS CONDUCTED BY VIDEO LINK AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, I would indicate to the people in Sydney you should remain seated, it will be easier with the video conference and probably for you too, Mr Trindade, in terms of the people in Sydney seeing you, but I will take appearances in the first instance.

PN2

MR D. TRINDADE: I seek leave to appear for Air New Zealand together with MR A. PASCOE.

PN3

THE SENIOR DEPUTY PRESIDENT: And Mr Pascoe is in Sydney?

PN4

MR TRINDADE: In Sydney.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, and who else have we got there from Sydney?

PN6

MR H. METTE: I appear on behalf of the Australian Municipal Clerical Administrative Services Union.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes and you have Mr Andrews with you?

PN8

MR S. ANDREWS: Yes, that is right.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, very well. there is no objection to leave in respect of Mr Trindade, presumably, so leave is granted. Yes, Mr Trindade?

PN10

MR TRINDADE: Your Honour, this is an application made pursuant to section 170MD(2) of the Act for variation of the Air New Zealand Certified Agreement 2003. Your Honour may recall that agreement was certified by your Honour on 9 May this year and there was one aspect of that agreement where the parties had left a further matter yet to be done and that indeed is this variation. That was dealt with under clause 22 of that agreement and the history of it was that the parties have been for some time working together quite conducively to towards getting a classification structure that better meets the needs of Air New Zealand and its employees.

PN11

Rather than being rolled into the enterprise bargaining round, it was decided that it would be better for simply that work to be put to the side and for a variation to be made once the parties were satisfied that they had reached a proper structure and had enough time to reflect on it and to reach something that was going to be very useful for the company and for its employees going forward. I am pleased to say that that has occurred in accordance with - as foreshadowed in the agreement and that the parties have reached an agreement.

PN12

That agreement to vary was then put to a ballot of staff. The agreement was approved on 30 July 2003 by a valid majority of the 89 employees covered by the agreement as varied. And those documents have been provided and a copy of the proposed variation together with a document explaining its terms was provided to staff on 23 June 2003. In respect of the agreement we would say that it satisfies all of the tests that a normal certified agreement would satisfy and that the Commission should be satisfied that, in that regard, it certainly passes the no disadvantage test. It has a dispute settlement procedure and specifies a nominal expiry date which is less than three years from the date of the operation of the agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: In respect of the no disadvantage test, perhaps you could tell me about the content of the classification structure as against that which was in the agreement.

PN14

MR TRINDADE: Indeed, your Honour. In fact, as far as the current classification structure goes, no employee will be disadvantaged by the variation and in fact if your Honour goes to the draft order that has been provided, if you look at the new clause 22 that is proposed as the variation, it provides for what might be called salary maintenance under clause 22.2 in respect of anyone. We don't believe that that is the case but that clause is in there for that very reason, so - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Very well, yes.

PN16

MR TRINDADE: Your Honour, we say it satisfies all of the tests as if it were a new agreement asking to be certified. It satisfies the tests. We say it satisfies the tests in respect to section 170MD and we would seek the Commission to approve the variation. If the Commission pleases.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Trindade. Yes, Mr Mette?

PN18

MR METTE: Yes, your Honour, we concur with the submission been made on behalf of the company in relation to this agreement and we would rely on the statutory declarations filed in support of the variation. We sincerely concur that the variation complies with the requisite sections of the Act and particularly the no disadvantage test and we would ask that the variation be certified today.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Mette. Yes, this is an application pursuant to section 170MD(2) of the Workplace Relations Act 1996 by Air New Zealand Limited to vary a certified agreement, the Air New Zealand Limited Certified Agreement 2003, in respect of clause 22 of the agreement to give effect to a new classification structure. That variation was foreshadowed in the agreement as initially certified in clause 22. Statutory declarations have been filed on behalf of Mr Slape for the union party to the agreement, the Australian Services Union and by Mr Pascoe on behalf of Air New Zealand.

PN20

That statutory declaration relies on the content of statutory declarations initially filed for the purpose of the certification of the agreement earlier this year. The statutory declaration also provides information as to the manner in which the proposed variation was put to and explained to employees and records the results of a ballot counted on 30 July 2003 in which a valid majority of employees supported the variation to the agreement. The statutory basis for approval or otherwise of the variation is to be found in section 170MD(3) of the Act.

PN21

That provides that the Commission must by order approve a variation and must not approve the variation unless it is satisfied as to two matters, first, that a valid majority of employees whose employment is subject to the agreement at the time genuinely approved the variation. I am satisfied that the variation has been approved by a valid majority of employees. The second requirement is the Commission would be required to certify the agreement as varied if it were a new agreement - this certification applied for under the part.

PN22

In that respect I am satisfied were this a new agreement containing the clause now varied that the Commission would be required to certify the agreement. And in that respect section 170LT of the Act is relevant. I am satisfied that the agreement as varied would satisfy each of the requirements of section 170LT of the Act. Further, I am satisfied that there is nothing within section 170LU of the Act which would require the Commission to refuse certification and, finally, I am satisfied that the agreement as certified deals with matters in relation to the relationship between employees and the employer.

PN23

Accordingly, I am satisfied that the requirements within section 170MD(3)(b) of the Act are met. In those circumstances, I approve the variation of the agreement sought by the parties, approved by employees. I will issue an order to that effect shortly. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [10.11am]