AG2004/1852, Transcript of Proceedings [2004] AIRCTrans 1014 (19 March 2004)

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 6308
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2004/1852

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Bata Shoe Company of Australia Pty Ltd
and Another for certification of the Bata -
National Union of Workers Enterprise Agreement
2003-2005

MELBOURNE

11.40 AM, THURSDAY, 4 MARCH 2004

PN1

MR T. LYONS: I appear on behalf of the National Union of Workers.

PN2

MR D. SULLIVAN: I appear for Australian Industry Group on behalf of Bata Shoe Company.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lyons.

PN4

MR LYONS: If the Commission pleases. In relation to this matter, your Honour, we seek certification of an agreement in the terms filed. In doing so the union relies on the declaration of Mr Donnelly which should appear on the file of the Commission. We say in relation to that declaration that it makes out that all the requirements of the Act in relation to the application have been met. So unless your Honour has any questions about those technical requirements we would simply rely on the declarations. There is one matter which arises, your Honour, which I think I ought refer to, and that is the presence of clause 45 of this agreement - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6

MR LYONS: - - - which is a - I think is of the form referred to in decisions of this Commission as a union notification clause. The Commission - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Well, it is in a particular form; there are two forms before the Health Minders Full Bench.

PN8

MR LYONS: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: One was approved of, one was not.

PN10

MR LYONS: One was a, if you like, qualified form and one was an unqualified form.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR LYONS: As the Commission has referred to, the Full Bench in Health Minders took the view that a clause containing - sorry, an agreement containing this provision was not an agreement within the meaning of section 170LI and, therefore, was not an agreement that was capable of being certified. That was contrary to submissions on appeal put by the NUW. In the period since the Health Minders Full Bench, as your Honour is aware, there has been a subsequent reconsideration of this issue in a decision that is known as Re Unilever North Rocks, which is contained in PR940027, a decision of Munro J and others.

PN13

The Commission will be aware that essentially that Full Bench reversed the state of the law as it previously existed in this place about what agreement - what an agreement needed to look like in order to be capable of certification and his Honour adopted the position that was urged, in fact, upon the Health Minders Bench by the NUW, and that is that the Commission needs to consider the agreement taken as a whole and determine whether or not it is an agreement which is about matters pertaining to the employment relationship. That is that you take almost a global test towards a view of the agreement.

PN14

It is our submission that the Bata and NUW Enterprise Agreement 2003-2005, an agreement I note that runs to some 51 clauses, is clearly an agreement which taken as a whole is about matters pertaining to the employment relationship and so we suggest that notwithstanding the decision in Health Minders that your Honour adopting the reasoning of the Unilever Full Bench ought hold that it is an agreement within the meaning of section 170LI and, therefore, an agreement which the Commission is obliged to certify, the other statutory tests having been met.

PN15

I note for the record, of course, that the view adopted by Munro J and the other members of the Bench is consistent with the obiter remarks of the Full Court of the Federal Court in Electrolux Number 2 and so we say we are on firm ground in seeking that you certify the agreement in the terms presented. I can go into some more depth on that, your Honour, but suffice to say I think that the - paragraphs 165 and following of the Unilever decision is that section of the decision which we rely on.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Are you going to address me on the application being late?

PN17

MR LYONS: I was going to actually ask your Honour about that. Because it was lodged by the AIG I am unable to tell from my documents about whether or not it was lodged late.

PN18

THE SENIOR DEPUTY PRESIDENT: It was lodged two days late.

PN19

MR LYONS: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: But I take it you are blaming the AIG.

PN21

MR LYONS: Yes, I am, your Honour. I know we returned the declaration. As a matter of caution I did seek instructions from the organiser about the composition of the workforce and have been informed that it has not changed in the intervening period. Your Honour will note it is a very small workforce as well and my instructions with the organiser are that there is still support for the agreement among the employees.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR LYONS: I think it is another one of these Christmas holdover type issues in some ways, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR LYONS: If the Commission pleases.

PN26

THE SENIOR DEPUTY PRESIDENT: Very well, thank you for that. Mr Sullivan.

PN27

MR SULLIVAN: Thanks, your Honour. Yes, the company supports the submission from the union. Certainly the parties rely on the statutory declarations which we also believe meet the rules and regulations of the Commission. We also ask the Commission in support of the application to exercise its discretion under section 111(1)(r) of the Act to extend it, based on - I think it was our administration, one, that it caused it to be a couple of days late due to the Christmas break. It also came from our regional office, your Honour, which creates some issues sometimes. So on that basis, your Honour, we would request that you certify the agreement in the orders sought.

PN28

THE SENIOR DEPUTY PRESIDENT: Did you wish to put any submissions on the section 170LI issue?

PN29

MR SULLIVAN: No, your Honour, we are happy with the submissions.

PN30

THE SENIOR DEPUTY PRESIDENT: Very well, thank you for that. This is an application pursuant to section 170LJ of the Workplace Relations Act 1996 for the certification of the Bata - National Union of Workers Enterprise Agreement 2003-2005. Parties to that agreement are the Bata Shoe Company of Australia Pty Ltd and the National Union of Workers. The agreement was approved by a valid majority of employees on 27 January 2004 and the application for certification was lodged on 19 February 2004, some two days beyond the time period prescribed in section 170LM(2) of the Act.

PN31

Both parties have asked that the Commission exercise its discretion to extend the period for lodgment on the basis that the delay was short, caused by administrative issues associated with the processing of the agreement within the regional office of the AIG and the coincidence of the Christmas period. Further, both parties rely on the fact that the composition of the workforce is relevantly unchanged as between the date of approval and the date of lodgment of the agreement. In the circumstances I will exercise a discretion under section 111(1)(r) of the Act to extend the period for lodgment until 19 February 2004.

PN32

An issue arises in respect of section 170LI of the Act in respect of an agreement provision dealing with union notification, specifically 45 of the agreement. That provision raises a question as to whether the agreement is, as is required by section 170LI, about matters pertaining to the relationship between employees and the employer. In my view the form of the union notification clause is of the type found not to pertain to the relationship by a Full Bench in Health Minders, PR926554. However, I accept and apply the reasoning of the Full Bench in Unilever Australia Limited, PR940027, which construed the requirement imposed by section 170LI as being:

PN33

That the agreement assessed objectively and as a whole be about matters pertaining to the reference relationship.

PN34

Paragraph 168, and its conclusion with the agreed terms do not need to be considered and approved in isolation against the version of the relevant relationship test. Applying that approach I am satisfied that the agreement as a whole meets the statutory requirements within section 170LI of the Act and may be certified. I am satisfied also that the agreement meets each of the requirements of section 170LT of the Act. I am finally satisfied that nothing arises in respect of section 170LU which prevents certification of the agreement.

PN35

In the circumstances I will certify the agreement in the terms entered into between the parties. A copy of the certificate will be available to the parties. I will publish my decision in transcript in formal form in due course. I will now adjourn this matter.

ADJOURNED INDEFINITELY [11.47am]