AG2003/7058, Transcript of Proceedings [2003] AIRCTrans 4215 (24 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

AG2003/7058

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by Morris McMahon and Co Pty Ltd and Another
for certification of the Morris McMahon and Co
Pty Ltd Certified Agreement 2003

SYDNEY

10.05 AM, MONDAY, 8 SEPTEMBER 2003

PN1

HIS HONOUR: Yes, this is matter AG7058 of 2003, an application lodged on 19 August under section 170LJ of the Act for the certification of an agreement to be known as the Morris McMahon and Co Pty Ltd Certified Agreement 2003. Could I have appearances, please?

PN2

MS V. PAUL: Sir, Ms Paul, appearing for Morris McMahon and Co Pty Ltd and from the Australian Industry Group.

PN3

MR I. MORRISON: Yes, your Honour, if it please the Commission my name is Morrison, initial I. I appear on behalf of the Australian Manufacturing Workers Union in this matter. With me today is Ms V. Segrove, the organiser from the site.

PN4

HIS HONOUR: Yes. I note that the parties to the agreement are the AMWU and Morris McMahon. There is an application clause headed Parties Bound, Scope and Application.

PN5

This agreement is binding and shall apply in respect of the employees of Morris McMahon except those employees who are covered by an AWA or otherwise covered by the award and engaged in the print, production, maintenance, quality and logistics dispatch functions at Morris McMahon Pty Ltd carried out within the operation located at 34 to 38 Arncliffe Street, Wolli Creek.

PN6

And then it goes on to refer to Morris McMahon and the AMWU. The clause, as read out, is a bit of a conundrum. I record that in considering it I find that it applies to the part of the single business of Morris McMahon and Co comprised of the print, production, maintenance, quality and logistics dispatch functions within the operation at 34 to 38 Arncliffe Street, Wolli Creek in relation to classifications within the coverage of the ME and A award, but does not bind the employer in respect of - or an employee who is covered by an AWA. In other words that clause has to be construed, in my view, in a way that separates the application of the agreement from the binding effect of the agreement upon particular classes of employees.

PN7

It is intelligible in that way as applicable to a part of the single business and is in conformity with the Act and likewise its operation in relation to AWA employees is precluded by the terms of the agreement itself. The agreement was approved on 29 July, lodged on 19 August. It's within time. Its certification will end the bargaining period 16058 of 2003. It applies, it is said, to some 36 employees who are covered by the agreement. The only matter of difficulty for me is clause 12(ii). It sets out, as I understand it, classification structure, pay rates, wage rate per hours at 15 April 2003.

PN8

Then clause 12(v), those pay rates - wages have been and will be increased for employees subject to this agreement. Well, the first of those pay rates is as at 14 August last year, 13 January this year and then there's another one due, which is said, at 1 May this year. I'd seek clarification or at least an undertaking that the agreement will operate on the basis that the rates at clause 12(ii) are the rates operating at 15 April 2003 to be subject to the third to sixth increases that are set out in the table at clause 12(v). That seems to be pretty clearly the intention but for more abundant caution it needs to be put on the record that it is, Ms Paul.

PN9

MS PAUL: Sir, we are prepared to give the undertaking that the rates in clause 12 are the rates operating as at 15 April 2003 and the increases effective 31 August 2003, 2004 and 2005 will therefore apply to those rates.

PN10

HIS HONOUR: What about the one at 1 May, is that in or out?

PN11

MS PAUL: That shouldn't - - -

PN12

HIS HONOUR: Does that go on top? Just so as I'm - this may be well understood.

PN13

MS PAUL: Yes, sir, that - - -

PN14

HIS HONOUR: There's one training - take the training process whatever, that's the $12. Does that go up at 1 May or is - - -

PN15

MS PAUL: 1 May, sir, yes.

PN16

HIS HONOUR: So it's also to be increased.

PN17

MS PAUL: Yes.

PN18

HIS HONOUR: Yes, very well. Thank you. Is that your understanding, Mr Morrison?

PN19

MR MORRISON: Yes, that is my understanding as well.

PN20

HIS HONOUR: Yes. And the agreement will operate on that basis so far as you're concerned?

PN21

MR MORRISON: Yes.

PN22

HIS HONOUR: Yes. Very well, I am satisfied in that respect and I accept that as a 170LB undertaking. For purposes of clause 18 and section 170LW the relevant provision allows the parties by agreement upon reference of a matter to require the Commission to arbitrate to settle the dispute. I treat that as a qualified empowerment of the Commission for purposes of 170LW and approve any such empowerment for the purposes of 170LW. Otherwise I'm satisfied that the requirement of the Act and Rules have been met. That satisfaction is founded upon a scrutiny of the statutory declarations, the outcome of which is recorded in a check list compiled by my associate and completed and signed by me following my perusal of the proposed agreement.

PN23

The signed copy of the check list will be retained as part of the file and as a component of the decision in this matter. I certify as agreement 827660 in print 937139 the agreement. It shall come into force from 8 September 2003 and remain in force until 8 September 2006.

PN24

MR MORRISON: Your Honour, before you finish there is a few - an opportunity - the AMWU would like to place some words on record, if the appropriate time could be afforded to the union.

PN25

HIS HONOUR: I will never stop you putting words on record, Mr Morrison provided they are fairly short.

PN26

MR MORRISON: Thank you, your Honour. Yes, your Honour, firstly the AMWU is proud to be able to support this application for certification of the Morris McMahon agreement. The union would like to publicly thank the Australian Industrial Relations Commission and its staff for their efforts over the long process that has led us here today. In particular, the AMWU would like to express very sincerely you for your efforts and your contributions over the last eight months.

PN27

What could be at issue, though, is the union would like to hand up a copy of the Heads of Agreement which is in support of the actual agreement before you. Your Honour would note that in the agreement there appears annexure A and that agreement - that annexure A is actually extracted from this Heads of Agreement. And as - with that document, your Honour, the AMWU submits that the agreement complies with the relevant requirements of the Act and the Rules and requests certification as of today's date. If I may hand up the copy of the Heads of Agreement for your information, your Honour.

PN28

MS PAUL: Sir, we would object to the handing up of the document. We believe that the certification process is covered in terms of the Act and the material that's already been provided to the Commission is sufficient for the purposes of certifying the agreement. We believe, sir, that the agreement being sought to be tendered now is a confidential agreement between the parties, it does not form part of the certification process and further does not form part of the actual agreement. In light of that, sir, and bearing in mind its confidentiality we seek that it not be accepted for tender and therefore not be accepted into the Court file. And we can only stress that our objection is of a serious nature.

PN29

HIS HONOUR: Yes.

PN30

MR MORRISON: Your Honour, as I've said, annexure A is a straight extract from the Heads of Agreement. The Heads of Agreement has been put in previous matters before this Commission as a document that's handed up and was so noted and no dispute between the companies and the union. It earlier appeared before yourself and therefore we see that it would only assist the Commission in having the Heads of Agreement as an attachment to the agreement for certification.

PN31

HIS HONOUR: Yes. Well, I note the respective positions about a document that is, on Mr Morrison's application, extraneous to the agreement, although part of the background to the making of it. The lodgement of that copy in association with the agreement is objected to by Ms Paul, who appears for the company, although I'm sure the - and the basis of that objection is that the document is of confidential character between the parties. I am unable to see why acceptance of the document in evidence in relation to this certification hearing is essential to the certification process.

PN32

I accept that the existence of the document may give rise or be associated with some other issues but I don't consider that it is either necessary or in the circumstances where there is objection appropriate that I leave it on file for purposes of the certification. In the circumstances I will not admit the document as part of the record in this particular ruling, which is confined to the certification of the agreement. I'm sorry that I left you so late, Mr Morrison. I tend to have my head down at this stage, as you are aware, and I need - - -

PN33

MR MORRISON: That's fine, your Honour.

PN34

HIS HONOUR: So to the extent that timing is an issue then I will accept that you were not too late in making the application.

PN35

MR MORRISON: Thank you, your Honour.

PN36

HIS HONOUR: But the outcome would have been the same regardless of when you made it, having regard to the nature of Ms Paul's objection.

PN37

MR MORRISON: I appreciate that, your Honour. Thank you.

PN38

MS PAUL: Thank you, sir.

PN39

HIS HONOUR: And I think I was just at the point of saying that I had signed and sealed a copy of the certificate and that will be made available to the parties in attendance prior to the calling of the next matter. And I'm told there isn't a next matter until 11. Very well. The Commission will adjourn until 11.

ADJOURNED INDEFINITELY [10.18am]