AG2003/7109, Transcript of Proceedings [2003] AIRCTrans 4663 (22 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 4919

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/7109, 7136, 7290, 7291,
7452 and 7453

SDA-DOMINO'S PIZZA AGREEMENT
NO 15 2003

Application under section 170LL of the Act
for certification of the above agreement

REGAL CREAM PRODUCTS PTY LTD
(DERRIMUT) NUW/TWU AGREEMENT 2003

VSHP PTY LTD - NATIONAL UNION
OF WORKERS ENTERPRISE AGREEMENT
2003

BEAD FOODS PTY LTD AND NATIONAL
UNION OF WORKERS CERTIFIED
AGREEMENT 2003

KERRY INGREDIENTS AUSTRALIA PTY
LTD AND NATIONAL UNION OF WORKERS
(ALTONA NORTH SITE) CERTIFIED
AGREEMENT 2003

KREGLINGER (AUSTRALIA) PTY LTD
(DERRIMUT AND BENDIGO SITES) AND
NATIONAL UNION OF WORKERS ENTERPRISE
AGREEMENT 2003

Applications under section 170LJ of the Act
for certification of the above agreements

MELBOURNE

11.23 AM, MONDAY, 6 OCTOBER 2003

PN1

MR M. GALBRAITH: I appear on behalf of the SDA.

PN2

MS P. DOODY: I appear in matter AG2003/7109 on behalf of the Transport Workers Union of Australia.

PN3

M. A. THOW: I appear on behalf of the National Union of Workers.

PN4

THE DEPUTY PRESIDENT: I propose to hear these matters together, any objection to that? No objection; thank you. Right, perhaps we can deal with Domino's Pizza first, which is 7136. I take it - I have heard a number of these agreements, I take it is in the usual standard Domino's Pizza form, if I could put it that way.

PN5

MR GALBRAITH: Yes, it is, your Honour, it is identical.

PN6

THE DEPUTY PRESIDENT: Yes, so the reductions in the award which are reviewed in some detail in previous proceedings and found to be consistent with the no disadvantage test; I should make the same finding in this matter, should I?

PN7

MR GALBRAITH: That is right, your Honour.

PN8

THE DEPUTY PRESIDENT: For the same reasons?

PN9

MR GALBRAITH: That is right.

PN10

THE DEPUTY PRESIDENT: Thank you. All right. It is a Greenfields agreement, is it?

PN11

MR GALBRAITH: Yes, your Honour.

PN12

THE DEPUTY PRESIDENT: All right, I can rely on the sworn statutory declarations?

PN13

MR GALBRAITH: You can, your Honour.

PN14

THE DEPUTY PRESIDENT: However, there are some tests not dealt with in the statutory declarations, would you be able to deal with those now?

PN15

MR GALBRAITH: Your Honour, I must apologise, I am not familiar with the details.

PN16

THE DEPUTY PRESIDENT: All right, well, perhaps I will ask you a number of questions; that might be the easiest way to do it. First of all, are any provisions of the agreement inconsistent with the provision of Division III of Part VIA of the Act or an order or injunction made under that provision?

PN17

MR GALBRAITH: I understand they are not, your Honour.

PN18

THE DEPUTY PRESIDENT: Does the remedy contain a preference clause or similar so-called objectionable provision?

PN19

MR GALBRAITH: I believe not, your Honour.

PN20

THE DEPUTY PRESIDENT: You believe not?

PN21

MR GALBRAITH: Well - - -

PN22

THE DEPUTY PRESIDENT: Are you sure?

PN23

MR GALBRAITH: Your Honour, I am - - -

PN24

THE DEPUTY PRESIDENT: Is it possible that it may contain such a clause? Is the answer yes or no or maybe?

PN25

MR GALBRAITH: Your Honour, I am unaware of the history of this agreement. However, I can assure you that it is identical to the previous agreements.

PN26

THE DEPUTY PRESIDENT: The previous agreements, of course, contain no such clause. So I think your answer is "no."

PN27

MR GALBRAITH: No, your Honour.

PN28

THE DEPUTY PRESIDENT: Thank you for that. In respect of negotiating conduct are there any matters which would lead me to refuse to certify the agreement?

PN29

MR GALBRAITH: No, your Honour.

PN30

THE DEPUTY PRESIDENT: Do any of the provisions of the agreement discriminate against any person on the grounds referred to in the Act?

PN31

MR GALBRAITH: No, your Honour.

PN32

THE DEPUTY PRESIDENT: Does the agreement contain provisions that require or permit, or purport to require or permit, or have the effect or purport to have the effect, of requiring or permitting any conduct that would contravene Part XA or would, but for section 298C, contravene Part XA?

PN33

MR GALBRAITH: No, your Honour.

PN34

THE DEPUTY PRESIDENT: Thank you very much. All right, is there anything else you want to say in relation to the agreement, is that it?

PN35

MR GALBRAITH: That is fine, your Honour, thank you.

PN36

THE DEPUTY PRESIDENT: On the basis of the submissions put and the statutory declarations filed I will certify the agreement as sought by you and the certificate of certification will be issued as soon as possible. Thank you very much; you are excused if you wish to leave.

PN37

MR GALBRAITH: Thank you.

PN38

THE DEPUTY PRESIDENT: Right, 7109; I think that is out of time, isn't it?

PN39

MR THOW: Your Honour, I have the files in front of me but it would be useful if you could tell me the name of the company; I have got them all listed according to the names, unfortunately, rather than the numbers.

PN40

THE DEPUTY PRESIDENT: Oh, that is fine, that is Regal Cream Products Pty Ltd and it is yourselves and the TWU. I think there is a - I have received a fax from Regal Cream Products which explains the reason for delay. It explains it as being due to administrative oversight, the relevant people being on leave at the relevant times and the document lying idle for a longer period than planned. The employer also notes that there has been no change in the composition of the workforce since the majority vote by employees and this application. So I think that deals with the relevant guidance I need to deal with any application made by you under section 111(1)(r) should you make such an application.

PN41

MR THOW: Yes, your Honour, you have foreshadowed that application but I would like to ask for your discretion in accordance with that provision of the Act.

PN42

THE DEPUTY PRESIDENT: Right.

PN43

MR THOW: I do support the position put on behalf of the company to yourself. The vote was 30 July 2003. I have been instructed also from the union's point of view that there has been no change in the composition of the workforce in the areas that relate to the National Union of Workers, so on that basis I would hope that you may be able to use your discretion. The only thing I would add is that we seek to rely upon the statutory declaration submitted by Charlie Donnelly on behalf of the union and unless you had any specific questions we would request certification.

PN44

THE DEPUTY PRESIDENT: Right, well, of course, there are a number of statutory tests not dealt with in the statutory declarations, which means I don't have any material before me in relation to them. Do you have any submissions to put in relation to those matters?

PN45

MR THOW: Yes, there are no objectionable provisions that would stop you certifying the agreement and the rest of the agreement does comply with the Act and its regulations.

PN46

THE DEPUTY PRESIDENT: So there is nothing in relation to division III of Part VIA of the Workplace Relations Act that is relevant at present?

PN47

MR GALBRAITH: Nothing relevant there, your Honour.

PN48

THE DEPUTY PRESIDENT: Thank you.

PN49

MR THOW: Thank you.

PN50

THE DEPUTY PRESIDENT: All right. Does the TWU have anything to say in relation to that matter?

PN51

MS DOODY: Thank you, your Honour. The Transport Workers Union is also in support of the agreement and unless there are any further questions, your Honour, we would also be seeking certification from today's date in the terms sought. Thank you.

PN52

THE DEPUTY PRESIDENT: Thank you. All right. On the basis of the submissions put today and the material filed, including a letter from Regal Products Pty Ltd, dated 30 September 2003, I will first of all extend time, as sought by the parties; secondly, for the reasons provided in the submissions today and based on the material contained in the filed statutory declarations I am satisfied that the statutory tests are met and will certify the agreement as sought by the parties. A certificate will be issued as soon as possible. Thank you very much. You are excused if you wish to leave. You, Mr Thow, cannot leave; we will deal with your matters now.

PN53

MR THOW: Yes, thank you. If you could read the name, your Honour, that would assist.

PN54

THE DEPUTY PRESIDENT: Yes, Kerry Ingredients, clause 51.

PN55

MR THOW: Okay, let me turn to - - -

PN56

THE DEPUTY PRESIDENT: Page 55.

PN57

MR THOW: 55, yes. I have checked all the provisions to the agreement but you might have picked something that - - -

PN58

THE DEPUTY PRESIDENT: Regrettably, I have, Mr Thow.

PN59

MR THOW: Sorry, let us turn to it. Page?

PN60

THE DEPUTY PRESIDENT: It gives me no pleasure to do this.

PN61

MR THOW: That is all right.

PN62

THE DEPUTY PRESIDENT: I think there has been a Full Bench decision on the issue of provision of addresses of employees.

PN63

MR THOW: Yes, there has, your Honour, but my understanding of those provisions is that if clause 51 is expressed in the manner that it is, in that it is only in order to facilitate and for the purposes of those specific clauses, being clause 16, consultative mechanisms; 17, introduction of major change; 18, procedures for the prevention and settlement of disputes; 21, redundancy; and 59, re-negotiation that the manner in which that clause is written is certifiable and we have had quite a number of agreements with that exact wording certified on that basis.

PN64

THE DEPUTY PRESIDENT: I am sure you have.

PN65

MR THOW: Yes.

PN66

THE DEPUTY PRESIDENT: Whether that provides any support for your position is another matter.

PN67

MR THOW: No. Look, I suppose from our point of view we would like to see the agreement certified in its current form; if I need to make further submissions on that I would be happy to, although I am not in a position to do so today, unfortunately.

PN68

THE DEPUTY PRESIDENT: No, thank you for that.

PN69

MR THOW: Thank you.

PN70

THE DEPUTY PRESIDENT: In relation to other matters, I think Kreglinger Australia Pty Ltd, which is 7453 is out of time.

PN71

MR THOW: Okay. Just turning to that question, I can check. 27 August was the vote and the agreement, according to me, was submitted on 9 September, which puts it in time.

PN72

THE DEPUTY PRESIDENT: Just bear with me, I will just check that file, if we could, just resolve this issue. All right, so it is within time. Sorry, could you provide me those dates again, Mr Thow?

PN73

MR THOW: I have in the statutory declaration submitted by Mr Donnelly that the vote was conducted on 27 August 2003.

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR THOW: And I have a stamp from the Commission of 9 September 2003.

PN76

THE DEPUTY PRESIDENT: Yes, well, I think you are correct; thank you for that.

PN77

MR THOW: I will I had the same stamps on some of the other agreements that we are about to face but this one I can give an assurance on.

PN78

THE DEPUTY PRESIDENT: What, in another matter, Mr Thow, or this present matter?

PN79

MR THOW: No, I was just saying that I wish all of them were within time.

PN80

THE DEPUTY PRESIDENT: Yes, of course.

PN81

MR THOW: Would you like some further submissions on this application or would you proceed to the other applications concurrently?

PN82

THE DEPUTY PRESIDENT: I think that is it. What I would like to do is turn to deal with the statutory tests. I have sworn statutory declarations in front of me dealing with most of the statutory tests. There are of course other statutory tests.

PN83

MR THOW: Yes.

PN84

THE DEPUTY PRESIDENT: First of all, are any provisions of any of the agreements inconsistent with a provision of Division III of Part VIA or an order or injunction made under that Division?

PN85

MR THOW: No, there are no such provisions, your Honour.

PN86

THE DEPUTY PRESIDENT: Right. Do any of the agreements contain a preference clause?

PN87

MR THOW: No, the agreement does not.

PN88

THE DEPUTY PRESIDENT: Do any provisions of the agreements discriminate against an employee on the grounds stated in the Act, for example, racially?

PN89

MR THOW: No, certainly not.

PN90

THE DEPUTY PRESIDENT: Right. Do any of the agreements contain provisions that require or permit or purport to require or permit or have the effect or purport to have the effect of requiring or permitting any conduct that would contravene Part XA, or would of section 298C, contravene Part XA?

PN91

MR THOW: No, there are no such provisions.

PN92

THE DEPUTY PRESIDENT: Right. Thank you very much for that.

PN93

MR THOW: Thank you.

PN94

THE DEPUTY PRESIDENT: All right, on the basis of the statutory declarations filed and the submissions today I will certify the agreements as sought. Certificates of certification will be issued as soon as possible. I think that is all we can do today. Thank you very much for coming.

PN95

MR THOW: Yes.

PN96

THE DEPUTY PRESIDENT: Is there anything else?

PN97

MR THOW: I have got three other agreements.

PN98

THE DEPUTY PRESIDENT: I am sorry, I thought I was dealing with - - -

PN99

MR THOW: Oh you were dealing with them all concurrently, weren't you?

PN100

THE DEPUTY PRESIDENT: All globally. So perhaps we can clarify that.

PN101

MR THOW: Thank you very much, very efficient.

PN102

THE DEPUTY PRESIDENT: Are the submissions that you have provided in relation to what you thought was one agreement are you putting those same submissions in relation to the remaining agreements?

PN103

MR THOW: I am, your Honour, thank you.

PN104

THE DEPUTY PRESIDENT: Right, well, on that basis then, I think the decision I have issued will stand and certificates will be issued as soon as possible. All right, I think that is all we can do today.

PN105

MR THOW: I apologise, I couldn't quite hear you from the distance that you are today.

PN106

THE DEPUTY PRESIDENT: I am sorry, I was speaking quietly.

PN107

MR THOW: Thank you very much.

PN108

THE DEPUTY PRESIDENT: Thank you very much, Mr Thow. I think we now stand adjourned.

ADJOURNED INDEFINITELY [11.36am]