AG2004/1088, Transcript of Proceedings [2004] AIRCTrans 1642 (29 April 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1637

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2004/1088
AG2004/1089

APPLICATIONS FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(2) of the Act
by Vissub Pty Limited to vary the Vissub Pty
Limited Certified Agreement 2003 re Clause 13.1

Application under section 170MD(2) of the Act
by Hutt Nominees Pty Limited to vary the Hutt
Nominees Pty Limited Certified Agreement 2003
re Clause 13.1

ADELAIDE

2.17 PM, WEDNESDAY, 21 APRIL 2004

PN1

THE DEPUTY PRESIDENT: These matters involve two applications to vary agreements pursuant to section 170MD(2) of the Act. I've decided in the circumstances to handle these matters together and given certain more recent developments, I have excused the parties from attendance. The contents of these applications is set by the certification of the original agreements by myself in late January and early February 2004 respectively.

PN2

Each agreement was certified on the basis of certain undertakings given pursuant to section 170LV(1) of the Act. Those undertakings were comprehensively set out in the relevant certificates. Part of those undertakings was that an application to vary each of the agreements in accordance with the undertakings would subsequently be made. In the lead up to these hearings, I reviewed the files and instructed my associate to advise the applicant that I considered that certain of the operational undertakings that directly affected the operation and application of the agreement had not been included in the variations.

PN3

In due course EI Legal, on behalf of the applicants, confirmed their position by way of correspondence dated today. I have considered that position and confirmed my original view that it is necessary and desirable that all of the operational undertakings be reflected within each of the agreements themselves. It was my understanding that in that light, EI Legal sought that the matters be adjourned without their attendance so that they could attend to the requirements of the Commission.

PN4

In the circumstances I believe that is the appropriate course of action. However, I also believe it appropriate that I establish for the record why I have taken the view that I have just announced. Firstly, I accept the submissions that have been made as to the enforceability of section 170LV undertakings. However, some of the undertakings directly impact upon the interpretation and implementation of the agreements and, in my view, it is critical that the agreements themselves be amended to clearly establish those matters.

PN5

It should be borne in mind that both of these workplaces are small businesses with staff turnover and it is desirable that the agreement parties themselves can read the agreement and readily understand its actual terms as modified by the undertakings. Further and lastly, to the extent that some ambiguity may arise between the undertakings and the operation of the original agreements this, in my view, only reinforces the need to create a single set of clearly established conditions of employment.

PN6

Indeed, that was the justification for the undertakings in the first place and for the requirement that the agreements be amended. Therefore, I confirm that I required the amendments deal directly with the following undertakings. In relation to the Hutt Nominees agreements, those undertakings as outlined in the certificate includes undertakings 1, 2, 3, 4, 6 and 7 and a note for the record that the current application to vary only deals with undertakings 1 and 3.

PN7

As to the Vissub, V-i-s-s-u-b, certified agreement, the undertakings that I required will be reflected directly within an amended agreement, are undertakings 1, 2, 4 and 5. Of those only undertaking 1 is currently dealt with in the application. I will therefore adjourn each application with liberty to apply. In so doing, that liberty would extend to allowing an amendment to each of the applications presently before the Commission, following consultation with the employees.

PN8

In any event, a revised statutory declaration will be required to support the amended provisions. Lastly, I should indicate that I do understand why EI Legal have advised their clients in the manner as suggested. However, I do require the more complete amendments to the agreements for reasons outlined earlier. These applications would accordingly be adjourned to a date to be set.

ADJOURNED INDEFINITELY [2.24pm]