AG2004/1901, Transcript of Proceedings [2004] AIRCTrans 1132 (25 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 6416
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

AG2004/1901

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the National Union of Workers - Victorian
Branch and Another for certification of the
Saint Gobain Abrasives (Campbellfield) Certified
Agreement 2003

MELBOURNE

11.00 AM, MONDAY, 15 MARCH 2004

PN1

THE COMMISSIONER: Could I have appearances, please.

PN2

MS C. HOBBS: If it pleases the Commission, I represent Saint Gobain Abrasives.

PN3

THE COMMISSIONER: Thank you.

PN4

MR T. LYONS: If the Commission pleases, I appear for the National Union of Workers.

PN5

THE COMMISSIONER: Yes, who is going to address this?

PN6

MR LYONS: I think it falls to me by the sound of it, Commissioner. In relation to this matter, the union and the employer seek certification of an agreement in the terms filed and in doing so, the union relies on the declaration of Mr Donnelly which should appear on the file of the Commission. We say that declaration makes out that all the requirements of the Act in relation to the application have been met.

PN7

The Commission will have noticed that it - the agreement was lodged a considerable period out of time. My understanding is that the principal reason for that delay was the - the Christmas break and the difficulties parties have with paper work in that period as well as some issues concerning the wording of the agreement. It is my instructions from the organiser that the composition of the workforce has not changed significantly in the interim and accordingly we ask that you exercise your discretion to allow the agreement to proceed, notwithstanding that it is out of time.

PN8

There are two matters only I need to bring your attention to, Commissioner, and that is, it has been agreed by the parties that notwithstanding what appears in the written form of the agreement at clause 14 in relation to the disputes procedure, the Commission will note that the - clause 14 as it appears, provides only for conciliation by the Commission. It has been agreed - and I understand part of the arrangement to present the agreement for certification is that in lieu of what appears in 14.5 that the following words would be recorded as being the common understanding of the way the disputes procedure would work and those words would be:

PN9

If the matter is still not settled, it shall be submitted to a member of the AIRC for conciliation and, if necessary, arbitration.

PN10

And I have a copy of those words which I will provide your associate at the conclusion of these proceedings.

PN11

THE COMMISSIONER: Yes, I think under the circumstances it would be advisable for that - a replacement page to be provided to take into account those words.

PN12

MR LYONS: We have no difficulty with that course.

PN13

THE COMMISSIONER: Yes.

PN14

MR LYONS: Commissioner, the only other issue is that it was agreed at the time of certification that the parties would record their common understanding of the right of entry arrangements that apply for the union at the premises. The Commission will note there is no right of entry provision. We are simply recording for the record our - our procedure that will be followed and that would be as follows, and I quote:

PN15

An authorised union representative is entitled to enter the premises having provided appropriate notice (ie 24 hours unless the matter is urgent) and to interview any employee but not so as to interfere with the employer's business. The authorised union representative shall agree to comply with site security procedures.

PN16

And I end the quote there and perhaps if I can provide those words simply to your associate as their - I understand the employer objects to their inclusion in the agreement but doesn't object to that being the arrangement. So it is simply a matter that we would seek to have recorded on the Commission's file in the event there was any dispute about that during the life of the agreement.

PN17

THE COMMISSIONER: Yes.

PN18

MR LYONS: If the Commission pleases.

PN19

THE COMMISSIONER: Yes, Ms Hobbs.

PN20

MS HOBBS: If it pleases the Commission, I agree with what Mr Lyons has said, there has been an arrangement between the parties to that wording. The reason that it wasn't agreed to put it in the agreement is the agreement had been held up long enough and I didn't understand that the Commission would allow the submission of a new page to include those things. But as he has presented, we do agree with the wording as such and I can provide - - -

PN21

THE COMMISSIONER: That's in relation to the clause 14.5?

PN22

MS HOBBS: Yes, I can provide a new page for both those clauses to be included. If the Commission pleases.

PN23

THE COMMISSIONER: Well, then Mr Lyons is saying that in relation to right of entry, that that is an understanding between the parties and while not in the agreement, that he will provide the words that he has read onto transcript that I am assuming you agree with and that they will be placed on file. So if there is any problem at a later stage during the term of the agreement, either party can refer to the file and say, well, look, here is our agreement in relation to right of entry. So I can understand that that won't be in the agreement.

PN24

MS HOBBS: No.

PN25

THE COMMISSIONER: But it is, nevertheless, an agreed understanding between the parties.

PN26

MS HOBBS: Correct, it is.

PN27

THE COMMISSIONER: Yes. All right, so in that case then if you could provide me with the - am I assuming that the company is keeping the - has the draft?

PN28

MS HOBBS: Correct. Yes, Commissioner.

PN29

THE COMMISSIONER: If you could provide me then with a new page 11 which updates the wording with regard to clause 14.5.

PN30

MS HOBBS: Yes, Commissioner.

PN31

THE COMMISSIONER: Yes, thank you. Now I note that the application is lodged out of time but on the basis of the explanation of the parties I do extend the prescribed time for lodgement. I note the statutory declarations of Mr Donnelly for the NUW and Ms Hobbs for the company. On the basis of those statutory declarations and the submissions of the parties this morning, I am satisfied that the provisions of the Act have been met and the rules of the Commission complied with.

PN32

In accordance with section 170LT of the Act, the Saint Gobain Abrasives (Campbellfield) Certified Agreement 2003 is certified. The agreement shall come into force on 15 March 2004 and shall remain in force until 4 November 2006. I note that the parties will provide a replacement page for - to overcome an omission in 14.5 of the agreement. These proceedings are now adjourned.

ADJOURNED INDEFINITELY [11.06am]