AG2003/9268, Transcript of Proceedings [2004] AIRCTrans 19 (8 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1209
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9268

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Construction, Forestry, Mining and
Energy Union, Construction and General Division,
SA Divisional Branch and Others for certification
of the R & R Painting and Decorating Pty Ltd
Collective Agreement 2003

ADELAIDE

12.50 PM, THURSDAY, 11 DECEMBER 2003

Continued from 7.11.03

PN83

MR A. HARRIS: I appear on behalf of the CFMEU.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Harris. Mr Harris, this matter has been relisted. It was the subject of a hearing in the Commission on 7 November. The outstanding issue is fundamentally not something that will necessarily inhibit, or stop the agreement being certified. The issue relates to the agreements, or disputes procedure. This is clause 6 of the agreement. Clause 6 indicates that:

PN85

If the parties are not able to resolve a matter in dispute, the dispute will be referred to the Australian Industrial Relations Commission for conciliation.

PN86

Now, Mr Harrison, previously representing the CFMEU, put to me that I could read into that the capacity that, if the matter wasn't able to be resolved by way of conciliation, then I could rely upon the award to establish an arbitral authority. That was a proposition with which I had some difficulty. I have put it to Mr Harrison the words in the agreement in clause 6 are very clear in that they stop the Commission's role at the conciliation process. There is nothing wrong with that, there are a great many agreements that have such a provision.

PN87

This agreement followed closely after another agreement with a very similar provision where the employer and the union have subsequently given me a letter which I have effectively taken as an undertaking that the parties want the Commission to be bestowed with authority, such that it can arbitrate such a matter if conciliation fails. I have relisted this matter, I have noted that the employer is not present, but it has been relisted so as to try to clarify this issue with the parties. I'm not inclined toward leaving the question of whether the agreement should be certified as an unresolved matter for the indefinite future.

PN88

Can I put it to you that it seems to me there are either of two approaches, I could certify the agreement today, in which case I need to advise you that I would intend to certify the agreement, but note that pursuant to section 170LW of the Act, the Commission's role stops at the conciliation process, or alternatively, I could provide a very, very limited additional period of time in which the parties might want to confer on this matter, so as to send me in some advice that clarifies their collective position on it.

PN89

MR HARRIS: If I pass you up just to have a look at, and it is my understanding it should be the same as this, the employer is one of these luckier people that has jumped on a boat and gone overseas, but this is possibly one of the previous case ones and this would be the union's understanding and the employer's understanding of it, that it would have to be - at some stage I would have to get him to sign it, if this is the same - it is regarding clause 6, the same.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes, that reflects the position that the parties in a different matter have arrived at.

PN91

MR HARRIS: Yes, but that is a similar clause 6 to this, it is the same wording.

PN92

THE SENIOR DEPUTY PRESIDENT: What I'm saying is, I could do either of two things, I could either provide a very limited period of time in which you might give me a similar item of correspondence which was endorsed by both the union and the employer. Or, alternatively, I would simply certify the agreement so as to establish that the Commission's role stops at the conciliation process.

PN93

MR HARRIS: I'm actually happy with that.

PN94

THE SENIOR DEPUTY PRESIDENT: All other matters have been resolved.

PN95

MR HARRIS: I wouldn't like to commit myself to the other because I don't think I could fulfil it in a short period and I would rather not tick off like that.

PN96

THE SENIOR DEPUTY PRESIDENT: Very well. On that basis, I will advise that further to the previous hearing of this matter on 7 November, I will certify the agreement with effect from today. The certificate will reflect the fact that I'm satisfied that the agreement meets all of the requirements necessary for certification insofar as it is of a duration envisaged by the Act that it contains a dispute resolution procedure which provides a role for the Commission to endeavour to resolve a dispute by way of conciliation, but conciliation only, and further that the agreement meets the requirements of the no disadvantage test and does not contain provisions which are contrary to the Act.

PN97

The certificate will be sent out to the parties within the next few days. It will detail the various questions, or clauses about which I sought clarification from the parties back in November, but it will not detail the answers that are recorded on the transcript of those proceedings. Are you happy with that approach, Mr Harris?

PN98

MR HARRIS: I'm very happy with that, thank you.

PN99

THE SENIOR DEPUTY PRESIDENT: Very well.

PN100

MR HARRIS: Apart from having my piece of paper back.

PN101

THE SENIOR DEPUTY PRESIDENT: I shall return your piece of paper. I should note that if my memory serves me correctly, that particular matter was the subject of a separate decision from the Commission that you might want to have regard to at some stage in the future.

PN102

MR HARRIS: No worries, I will.

PN103

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

PN104

MR HARRIS: Thank you.

ADJOURNED INDEFINITELY [12.57pm]