AG2003/1003, Transcript of Proceedings [2003] AIRCTrans 844 (13 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N VT1805

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

AG2003/1003

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
for certification of Willow Ware Australia
Pty Ltd Manufacturing Employees Certified
Agreement 2002 - 2004

MELBOURNE

10.07 AM, WEDNESDAY, 26 FEBRUARY 2003

PN1

MR S. PETERS: Appearing with me is MR K. WISE. I have two employees at the Bar Table with me, MR C. PHUNG and MS N. McMICALLEF. I also have in the rear behind my left shoulder MR BASILONI, the Human Resource Manager and MS M. COLSON, C-o-l-s-o-n for Colson, who is the Senior Accountant at Willow Ware.

PN2

THE COMMISSIONER: Thank you Mr Peters.

PN3

MR PETERS: Commission, I am of the understanding that your office would have received some documentation yesterday about this matter. Would that be correct?

PN4

THE COMMISSIONER: Yes, sir, and I have read it.

PN5

MR PETERS: Would you - well, my intention Commissioner was to be brief then today unless you wanted my to read this to the record in any way?

PN6

THE COMMISSIONER: No.

PN7

MR PETERS: No.

PN8

THE COMMISSIONER: You can just address me on the salient points if you would.

PN9

MR PETERS: Thank you. Well, I would like to hand up then annexure 2 and 3 which are part of the documentation that you have but they are signed in this case by Ms Colson and Mr Basiloni for the record.

EXHIBIT #WW1 ANNEXURE 2 AND 3

PN10

MR PETERS: They are both WW!?

PN11

THE COMMISSIONER: Yes. Collectively, I will mark them.

PN12

MR PETERS: Thank you. Commissioner there is a history in this particular matter which I am aware of you are very aware of as well. Commissioner our application in terms of the 170LK agreement placed fairly and squarely before you in terms of the documentation that is provided to you, we say, quite simply that a valid majority have approved, genuinely approved, this particular agreement. That the processes under 170LT and the requirements under 170LT for valid majority and all the other issues such as dispute settlement explanation, no coercion, expiry date, etcetera have been complied with as per the Act.

PN13

This agreement - sorry this proposed agreement is underpinned by the Rubber Workers' Plastics Award and of course in the affidavits that you received from our office recently. A copy, I believe, of Commissioner Cribb's decision in terms of a roping in application by the NUW were appended to that so I believe - - -

PN14

THE COMMISSIONER: And an order has issued from Commissioner Cribb?

PN15

MR PETERS: Yes, that is correct.

PN16

THE COMMISSIONER: Yes.

PN17

MR PETERS: You do have that paperwork, I believe, through your associate. On that basis we ask that this particular agreement be certified under the Workplace Relations Act. I do, as you have been told, have both the employees that signed the affidavits, the employee affidavits, with us and of course they are available for any questions at this point of time if you wish Commissioner.

PN18

THE COMMISSIONER: Just to be clear on those. I understood you to stay those two annexures, sorry three pages of annexures you gave me, are annexures to all of the material that you have presented me with that I indicated I had read. Is that correct?

PN19

MR PETERS: I will clarify - - -

PN20

THE COMMISSIONER: It is part of those documents, is it?

PN21

MR PETERS: I will - yes they are the documents that were sent to you yesterday afternoon. They were also sent to the two union. They just were unsigned yesterday afternoon for want of time. So you, of course, have signed affidavits as well. So if I could just be a little clearer. The affidavits in terms of the R29, R30 forms they are, by memory, are signed by the people on my right.

PN22

THE COMMISSIONER: Yes.

PN23

MR PETERS: And the annexures are signed by the people behind me.

PN24

THE COMMISSIONER: The only point I am making is that total documentation is exhibit WW1 collectively.

PN25

MR PETERS: Thank you very much Commissioner. Now I would propose that that is our explanation at this stage unless you have any other questions.

PN26

THE COMMISSIONER: Well, I do Mr Peters. You raise in your submissions the question of the outstanding Full Bench decision.

PN27

MR PETERS: Yes.

PN28

THE COMMISSIONER: How do you propose to address that?

PN29

MR PETERS: Well, we have nominated that in this particular document to you, of course Commissioner, our advice, I guess, is that the two agreements can run side by side initially and our proposal is that once this particular agreement is certified by yourself we will write to the President and ask him to withdraw our particular appeal process so that there is no stay order there in terms of the agreement of July last year.

PN30

THE COMMISSIONER: Yes. Thank you.

PN31

MR PETERS: Is that all Commissioner?

PN32

THE COMMISSIONER: Yes, thank you. Ms McMicallef you are one of the two employee representatives. Is there anything that you want to say to me about this?

PN33

MS McMICALLEF: No.

PN34

THE COMMISSIONER: Can I ask you, are you comfortable and confident that this represents the wish of the employees?

PN35

MS McMICALLEF: Yes, sir.

PN36

THE COMMISSIONER: And Mr Phung you are comfortable and confident that the people that you are representing here want this agreement registered.

PN37

MR PHUNG: Yes.

PN38

THE COMMISSIONER: Thank you. Mr Peters, I indicate this procedure to you and ask your response to what I am going to say. I am happy to certify the agreement subject to receiving from you or the company a copy of the letter to the Full Bench seeking that the matter not proceed. Withdrawing the appeal. So that what I am saying is, I am approving the agreement subject to receipt of a copy of that letter.

PN39

MR PETERS: One second please Commissioner. Commissioner if I could be bold. Our view is that the Commission is required to certify an agreement in the current format, passing 170LT, my emphasis being on the words, is required to certify. If I could be so bold to suggest that the company is concerned that there is any window of concern between our letter - - -

PN40

THE COMMISSIONER: I assure you there will be none.

PN41

MR PETERS: Yes.

PN42

THE COMMISSIONER: There will be none. What would happen is that it would be approved as of today, subject to receipt of the - - -

PN43

MR PETERS: Yes, well, okay. Let me see if I can clarify that. That you are going to certify it now and - but we will send you within the next, can we say the next 24 hours, a letter to the - a copy of the letter that we will send to the Full Bench.

PN44

THE COMMISSIONER: In return for which you will receive the formal certification. Yes. But it will operate from today.

PN45

MR PETERS: Yes. Can I have a moment please?

PN46

THE COMMISSIONER: There will be no window. That is what I am trying to ensure.

PN47

MR PETERS: Yes. I am sorry Commissioner. I just want to be very clear on it. Is your intention to read to the tape now that the matter is certified subject to us providing - certified from today at this moment subject to us forwarding you the letter?

PN48

THE COMMISSIONER: Absolutely.

PN49

MR PETERS: Yes. Yes. My assistant suggests more properly, in terms of language, that the document is certified and subject to us giving an undertaking today that we will - here we go. Subject - - -

PN50

THE COMMISSIONER: I hope that is not an omen.

PN51

MR PETERS: Well, it might be an omen for rain if we are lucky. Subject to us giving an undertaking that we would provide the letter, as I said within the next 24 hours.

PN52

THE COMMISSIONER: I am not sure of the difference. What - - -

PN53

MR PETERS: No. I guess we want to walk out of here knowing that the document is certified today and then we will provide that letter of withdrawal of our appeal.

PN54

THE COMMISSIONER: Yes. I thought that is what I said.

PN55

MR PETERS: Yes. I am sorry.

PN56

THE COMMISSIONER: What I am putting to you is that I will certify it today subject - and issue the certificate, subject to receiving that letter - a copy of that letter. That is the same thing, isn't it?

PN57

MR PETERS: Yes, I think so. You were going to do that on tape. I don't see any problem with that. No.

PN58

THE COMMISSIONER: I think we are saying the same thing different ways. I hope.

PN59

MR PETERS: Yes.

PN60

THE COMMISSIONER: In any event it is what I am going to do. So.

PN61

MR PETERS: Well, let's hear what you do Commissioner and I think that will probably assist.

PN62

THE COMMISSIONER: Yes. Look I am satisfied that the agreement is appropriate and should be certified and subject to receipt from the company of advice to the Full Bench that the matter - the appeal is withdrawn, I will issue a formal certificate in the following form. In accordance with section 170LT of the Workplace Relations Act 1996 the Commission hereby certifies the written agreement. This agreement shall come into force from today, 26 February 2003, and shall remain in force until 30 May 2004.

PN63

MR PETERS: Thank you Commissioner.

PN64

THE COMMISSIONER: This matter is adjourned. Thank you very much.

ADJOURNED INDEFINITELY [10.17am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #WW1 ANNEXURE 2 AND 3 PN10