AG2003/9459, Transcript of Proceedings [2003] AIRCTrans 5344 (4 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5356

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/9459

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Australian Workers Union for certification
of the Barro Group Pty Limited Concrete
Batching Plant Employees Enterprise
Agreement 2003

MELBOURNE

2.30 PM, TUESDAY, 18 NOVEMBER 2003

PN1

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN2

THE DEPUTY PRESIDENT: Thank you. No other appearances?

PN3

MR WINTER: No, your Honour.

PN4

THE DEPUTY PRESIDENT: Right. This matter is 72 days out of time.

PN5

MR WINTER: Yes.

PN6

THE DEPUTY PRESIDENT: The agreement doesn't include, it seems, wage rates. In the copy I have there is a reference to an appendix A. We don't have a copy of appendix A.

PN7

MR WINTER: Yes, your Honour, if I could present a copy of appendix A.

PN8

THE DEPUTY PRESIDENT: So that should have been filed, should it?

PN9

MR WINTER: And I would seek to have that included on the file of the agreement. What that appendix does is stipulates the wage increases achieved as part of the agreement, including, as you will notice, there was a reclassification at the time and as part of the reclassification employees received wage increases ranging from 1.8 per cent as part of the reclassification to 5.4. Then all employees received an additional 4 per cent per year wage increase as part of the agreement.

PN10

THE DEPUTY PRESIDENT: Right. So just let me get this straight. This document here is part of the agreement, is it?

PN11

MR WINTER: Yes, the agreement covers nine employees.

PN12

THE DEPUTY PRESIDENT: So this is part of the agreement. Was it approved by a valid majority?

PN13

MR WINTER: Yes, it was.

PN14

THE DEPUTY PRESIDENT: Right. So this document was before the members when they voted on it?

PN15

MR WINTER: Yes, it was.

PN16

THE DEPUTY PRESIDENT: Right. And where does it go in the agreement?

PN17

MR WINTER: And it would go as the appendix to the agreement.

PN18

THE DEPUTY PRESIDENT: So this is the appendix A, is it?

PN19

MR WINTER: Correct, your Honour.

PN20

THE DEPUTY PRESIDENT: Right. It is not marked appendix A. I will write that in handwriting.

PN21

MR WINTER: And as part of the agreement there was a reclassification of all employees, the nine employees.

PN22

THE DEPUTY PRESIDENT: Yes.

PN23

MR WINTER: And in addition to that, there was the percentage wage increase that was included as part of the certified agreement.

PN24

THE DEPUTY PRESIDENT: All right, thank you very much. Well, there is that issue. Now there is the issue of the out of time.

PN25

MR WINTER: Yes, clearly the matter was out of time and I would ask you to use your discretion.

PN26

THE DEPUTY PRESIDENT: Right.

PN27

MR WINTER: There were some problems putting together the appropriate documentation. The organiser concerned is from the country. I have been assured by Mr Cox, the organiser, and Mr Macini from the company that there has been no change to the workforce whatsoever; it only covers nine employees.

PN28

THE DEPUTY PRESIDENT: Right. All right, so you are applying - - -

PN29

MR WINTER: I would ask the Commission use its discretion under 111(1)(r) in relation to that late lodgment.

PN30

THE DEPUTY PRESIDENT: Thank you. Is there anything else you want to say?

PN31

MR WINTER: No, the agreement complies with all other aspects of the Act if your Honour pleases.

PN32

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

PN33

MR WINTER: Yes, your Honour.

PN34

THE DEPUTY PRESIDENT: All right. There are, of course, the issues which are either not dealt with in the statutory declarations or dealt with only - if I could call them incompletely - and those are the section 170LU tests. Would you like to deal with those just briefly, section 170LU(2) through to subsection (5). If you would just run through those for me. The statutory declarations deal to some extent with some of those tests but not fully, is how I put it, unless you disagree with me.

PN35

MR WINTER: In relation to LU(2), your Honour.

PN36

THE DEPUTY PRESIDENT: Yes.

PN37

MR WINTER: The agreement doesn't contain any objectionable provisions, your Honour.

PN38

THE DEPUTY PRESIDENT: Well, (2) doesn't deal with objectionable provisions, it deals with provisions which are inconsistent with the provision of division 3 of part VIA and so on. That is not objectionable provisions, is it?

PN39

MR WINTER: 170LU(2)?

PN40

THE DEPUTY PRESIDENT: Yes.

PN41

MR WINTER: In regard to the agreement being - - -

PN42

THE DEPUTY PRESIDENT: That deals with orders relating to termination, doesn't it?

PN43

MR WINTER: Sorry, your Honour?

PN44

THE DEPUTY PRESIDENT: Part VIA, division 3 of the Act deals with termination orders, not objectionable provisions. Perhaps I will just deal with it this way. Is any provision of the agreement inconsistent with the provisions or orders, etcetera, referred to in section 170LU(2)?

PN45

MR WINTER: No, your Honour.

PN46

THE DEPUTY PRESIDENT: Right. Is there an objectionable provision within LU(2A)?

PN47

MR WINTER: No, your Honour.

PN48

THE DEPUTY PRESIDENT: Keep going. (3)?

PN49

MR WINTER: In regards to 170LU(3), your Honour - - -

PN50

THE DEPUTY PRESIDENT: Is there any conduct of the sort described?

PN51

MR WINTER: No, your Honour.

PN52

THE DEPUTY PRESIDENT: No. Are there any discriminatory provisions?

PN53

MR WINTER: No, your Honour.

PN54

THE DEPUTY PRESIDENT: Right. So apart from that you are relying on the - - -

PN55

MR WINTER: Statutory declaration.

PN56

THE DEPUTY PRESIDENT: Terrific. Thank you very much.

PN57

MR WINTER: Thank you.

PN58

THE DEPUTY PRESIDENT: All right. On the basis of the submissions put, first of all I will extend time. Secondly, I will certify the agreement and a certificate will be issued as soon as possible. Thank you very much.

ADJOURNED INDEFINITELY [2.36pm]