AG2003/10733, Transcript of Proceedings [2004] AIRCTrans 1152 (26 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 10178
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

AG2003/10733

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ
of the Act by AEP Industries
(Australia) Pty Limited for
certification of the AEP
Industries (Australia) Pty
Limited Maintenance Employees
Chester Hill 2003 Agreement

SYDNEY

10.40 AM, MONDAY, 19 JANUARY 2004

PN1

HIS HONOUR: This is matter AG10733 of 2003, an application lodged 30 December 2003 under 170LJ of the Act seeking certification of an agreement to be known as the AEP Industries (Australia) Pty Limited Maintenance Employees Chester Hill Agreement 2003. Could I have appearances, please.

PN2

MR J. TAMPLIN: Your Honour, I appear for the Printing Industries Association and member company, AEP Industries (Australia) Pty Limited.

PN3

MR I. MORRISON: If it please the Commission, I appear on behalf of the Australian Manufacturing Workers Union.

PN4

HIS HONOUR: This agreement is made between AEP Industries (Australia) Pty Limited and the AMWU, clause 3 states:

PN5

The agreement shall be binding upon AEP Industries (Australia) Pty Limited situated at 149 Orchard Road, Chester Hill.

PN6

I shall treat that clause because of the heading, Application and Paries Bound as it is intended to also be read as:

PN7

The agreement shall apply to AEP Industries as a single business operating at that site in Orchard Road, Chester Hill.

PN8

Unless somebody wishes to persuade me against that construction.

PN9

MR TAMPLIN: No, you are quite correct, your Honour.

PN10

HIS HONOUR: The agreement was approved 3 December not lodged until 30 December, it's six days out of time, there will be a need for an application to cover it. The bargaining period ended in BP3212 of 2003, some seven employees are covered by the agreement. Clause 11 specifies a 4 per cent wage increase but there is no specific reference to the rates. I will need a section 170LB undertaking specifying what are the rates which are the floor to which the increase in clause 11 applies.

PN11

The only other point is that I note that there is no specific empowerment for purposes of section 170LW of the Act, so two matters, an extension of time covering six days and a commitment to give the undertaking that you will forward in due course the rates to which the clause 11 increase is to apply.

PN12

MR TAMPLIN: If I could deal with the out of time application first, your Honour, we seek the Commission exercises its discretion to extend the time, the main reason being that I handed this matter over prior to going on annual leave on the 15th and it wasn't picked up immediately as to the date of filing, so indirectly it is my actions that led to the out of time. I've spoken with the company this morning, as I've just received the matter back from my staff and the company advises me that there has been no change to the seven employees, they are and remain the same.

PN13

As a result of that we seek the Commission to exercise its discretion and grant the extension of time. As to the table, that is the same clause that was used in the two previous agreement but I take the point, your Honour, we will supply a table setting out the rates within seven days and forward it to the registry to be attached to the file, if that pleases the Commission.

PN14

HIS HONOUR: Yes, thank you, that will suffice. I don't know that I need further persuasion, I will grant time. I will accept the undertaking. The certification is conditional upon a copy of that table being received in due course setting out the rates. I certify - - -

PN15

MR TAMPLIN: Your Honour, I should also point out that I will send a copy of that table for completeness to my colleagues.

PN16

HIS HONOUR: Yes, thank you.

PN17

You are part of that undertaking, I take it, Mr Morrison?

PN18

MR MORRISON: Yes, your Honour.

PN19

HIS HONOUR: The purpose of this is both parties need to give the undertaking and so that the point is not obscure although many agreement are certified with simply commitments to increase rates by a percentage amount, the agreement on its face is deficient in identifying what are the rates which are thereby being increased, they could be below the award or above the award or most people three years on wouldn't know what they are.

PN20

MR TAMPLIN: I totally understand the abundant caution, your Honour.

PN21

HIS HONOUR: That's the reason why I am insistent now that in the unlikely event that there has to be litigation about it, at least somebody can come back and produce the Commission file and say, these were the rates and they were ascertained at the date the agreement was made. In this instance the agreement certified will be AG831367, it's certified in print 942406, it comes into force from 19 January and remains in force until 30 June 2004.

PN22

The check list that is a basis of my satisfaction is a component of the decision and retained on the file. The bargaining period to which I alluded, 3212 of 2003 is ended. A signed and sealed copy of the certificate is made available to the representatives prior to the calling of the next matter.

ADJOURNED INDEFINITELY [10.47am]