AG2003/10141, Transcript of Proceedings [2004] AIRCTrans 107 (8 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N F8408

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

AG2003/10141

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Sanitarium Health Food Company for
certification of the Sanitarium Health
Food Company - Berkley Vale Production
Certified Agreement 2003

SYDNEY

11.13 AM, TUESDAY, 16 DECEMBER 2003

PN1

THE COMMISSIONER: Can I have the appearances please?

PN2

MR C. FISHER: If the Commission pleases, I appear on behalf of the Australian Health and Nutrition Association Limited trading as Sanitarium Health Food Company. I seek leave to appear, Commissioner.

PN3

MS A. HUGHES: If it please the Commission, I appear for the National Union of Workers New South Wales branch and also with me is MS M. BERNARDI, also from the union. I seek leave to intervene in order to become bound by the agreement pursuant to our application that was filed in the Industrial Registry yesterday.

PN4

THE COMMISSIONER: Thank you. Mr Fisher, any objection?

PN5

MS HUGHES: No objection, Commissioner.

PN6

THE COMMISSIONER: Leave is granted. Mr Fisher?

PN7

MR FISHER: Thank you, Commissioner. Commissioner, as I said this is an application which we have filed on behalf of the Sanitarium Health Food Company which is a constitutional corporation which seeks to make a certified agreement pursuant to section 170LK to cover its food production, canteen facilities, cleaning, and raw materials employees. The agreement is proposed to apply to the Berkley Vale operation at 2 Sanitarium Drive. The agreement meets the requirements of section 170LT. We note that we have received a notice from the National Union of Workers which seeks to be bound to the agreement pursuant to section 170M(3)(c).

PN8

We do not oppose the NUW being bound to the agreement. We have compared for the Commission's benefit the agreement against four State awards which apply to the work of the employees to be covered by the agreement. Those awards are the Grocery Products Manufacturing State Award, the Storemen & Packers General State Award, the Canteen Workers State Consolidated Award, and the Miscellaneous Workers General Services Award which apply to the production staff, the raw materials stores handling staff, canteen staff, and cleaners respectively.

PN9

The agreement received an 82.8 per cent majority vote and there was a 95 per cent return rate in the secret ballot. There is one person from a non English speaking background and in the final paragraph to annexure B there were specific measures taken by the employer to ensure that that person and the disabled person had no particular needs for explanation in relation to the terms of the agreement and what it would be meant to be bound by the agreement. In annexure B we've detailed the detailed measures of communication which the company implemented generally in relation to the agreement.

PN10

The notice of intention to make the agreement is contained in annexure C and meets the requirements in the Act in that it identified that where an employee was a member of the union that was eligible to represent them that they could meet and confer with the union on behalf of the employee. We indicate that the NUW did in fact meet and confer with the company in relation to the proposed agreement.

PN11

The agreement contains a disputes settling procedure which meets the requirements of the Act. It empowers the Commission to conciliate in relation to disputes arising under the agreement and the grievance and dispute resolution procedure is contained at clause 60 of the agreement. We note that from my discussions with the union this morning they seek specific recognition that they would be able to represent members in relation to issues of dispute under the agreement. We don't oppose that recognition being given to them and we recognise that the NUW will have the right to represent members in relation to the agreement.

PN12

Commissioner, I commend the application to you and rely on the material as filed.

PN13

THE COMMISSIONER: Thank you, Mr Fisher. Ms Hughes?

PN14

MS HUGHES: The union just seeks to rely on the filed application notice under paragraph 170M(3)(c) to be bound by the enterprise agreement and the statutory declaration of the branch secretary, Mr Derek Bellin, also filed in the Industrial Registry yesterday.

PN15

I will make one note for the record. In point 3 of Mr Bellin's statutory declaration it does make reference incorrectly to the distribution enterprise agreement; that should actually be the production enterprise agreement.

PN16

THE COMMISSIONER: Thank you. I'm not sure whether there is some cross-over between those two agreements. I note that my colleague, Senior Deputy President Duncan, has carriage of the distribution agreement I think, yes. In this file I have some appendices attaching correspondence between Fisher, Cartwright, Berriman and the AMWU.

PN17

MR FISHER: Yes, Commissioner. The AMWU has sought to represent employees on site and there has been a longstanding dispute between my client and the AMWU in relation to both their constitutional capacity to do so and also their contention that the Federal Food Preservers' Award 2000 applies to the work. That is a situation of dispute which spanned in excess of two years. Despite my client's contention that they lack the constitutional capacity to validly enrol production employees as members the company in any event went through a process of meeting and conferring with the union in relation to the proposed agreement and there is substantial material filed in the documentation which outlines that process which included a section 170NA application to the Commission for formalised conciliation in relation to the agreement which my client participated in.

PN18

We also provided some information for abundant caution which would show a comparison of the agreement against the Food Preservers Award although we say it is an award which in fact does not apply in said terms and conditions of the enterprise. If the Commission pleases.

PN19

THE COMMISSIONER: Thank you. Firstly, let me commend you for the details which you have gone to in preparing the material for these proceedings, it certainly leaves nothing to be questioned in terms of, well it doesn't leave any questions in my mind in terms of its comprehensiveness.

PN20

This is an application to certify the Sanitarium Health Food Company, Berkley Vale Productions Certified Agreement 2003. Appended to the application in my file is an application pursuant to section 170M(3)(c) by the National Union of Workers seeking to be bound to the agreement. I note that the company does not object to that application and in accordance with the Act I'm satisfied that the NUW has at least one member whose employment will be subject to the agreement and I will by order determine that this agreement binds the NUW.

PN21

In the sense of the agreement itself having regard to the statutory declarations provided and the terms of the agreement I'm satisfied that the requirements of the Act and the rules and regulations of the Commission have been met. Accordingly I will certify this agreement, it will come into force on and from today's date and remain in force until 15 December 2006. Thank you.

ADJOURNED INDEFINITELY [11.22am]