AG2004/3472, Transcript of Proceedings [2004] AIRCTrans 2287 (18 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 10942
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2004/3472

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by Fresh Start Bakeries Australia Pty Ltd
and Another for certification of Fresh Start
Bakeries Australia Pty Ltd (Victoria)
Agreement 2004

MELBOURNE

10.18 AM, TUESDAY, 8 JUNE 2004

PN1

MS L. SHANAHAN: I seek leave to appear on behalf of the company.

PN2

MS V. ILIAS: I appear on behalf of the LHMU.

PN3

THE DEPUTY PRESIDENT: Leave opposed?

PN4

MS ILIAS: No, your Honour.

PN5

THE DEPUTY PRESIDENT: Leave is granted.

PN6

MS SHANAHAN: Thank you, your Honour.

PN7

THE DEPUTY PRESIDENT: Go on. Who would like to start? Don't all speak at once.

PN8

MS SHANAHAN: Your Honour, perhaps I will start. You will have noted, I don't doubt, that the application for certification has been filed outside of time. Before I make submissions about that aspect, your Honour, there are just three references within the agreement where a typo effectively has not been picked up where the references to particular clauses are incorrect. I have changed those on three pages. There is just references to different clauses. I can run through them very quickly, but I would also like to hand them up.

PN9

THE DEPUTY PRESIDENT: All right.

PN10

MS SHANAHAN: I have spoken to Ms Ilias about them as well.

PN11

THE DEPUTY PRESIDENT: Yes. Are they changes of substance to the agreement?

PN12

MS SHANAHAN: No. No, it is just in clause 3A you will see there is a reference to - - -

PN13

THE DEPUTY PRESIDENT: That will be exhibit S1.

EXHIBIT #S1 AGREEMENT PAGES

PN14

MS SHANAHAN: Thank you, your Honour.

PN15

THE DEPUTY PRESIDENT: Agreement pages. What are they? Are they to be substituted for - - -

PN16

MS SHANAHAN: For the - yes.

PN17

THE DEPUTY PRESIDENT: For the clauses in the document that was voted on by employees. Is that right?

PN18

MS SHANAHAN: That is correct, your Honour. The differences are in the copy of the agreement that has signed and filed. In clause 3A the reference to clause 43 should be to clause 42.

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MS SHANAHAN: In clause 13B there is also a reference to clause 43 which should be to clause 42.

PN21

THE DEPUTY PRESIDENT: 13B.

PN22

MS SHANAHAN: Yes, 13B.

PN23

THE DEPUTY PRESIDENT: Again, 42, yes.

PN24

MS SHANAHAN: Yes. And in clause 33B(iii) there are two references there to clause 33 which should in fact be to clause 32.

PN25

THE DEPUTY PRESIDENT: You have a major problem with 32, haven't you? What is 32, sick leave?

PN26

MS SHANAHAN: No, sorry, 32 refers to sick leave.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MS SHANAHAN: And clause 42, I think, is the classification and clause 43 is redundancy.

PN29

THE DEPUTY PRESIDENT: Right. I see. So there is no doubt that that is what was meant? It doesn't make sense, in other words?

PN30

MS SHANAHAN: That is correct.

PN31

THE DEPUTY PRESIDENT: With the other numbers, yes.

PN32

MS SHANAHAN: That is correct, your Honour. So we would submit that if you could replace those three, the three pages that I have provided today in the certified agreement should the agreement be certified - - -

PN33

THE DEPUTY PRESIDENT: Right. I have a power to do that, do I?

PN34

MS SHANAHAN: That is an excellent question, your Honour.

PN35

THE DEPUTY PRESIDENT: I am not going to exercise powers under section 113 of the Act, I don't think. It is not an award, is it?

PN36

MS SHANAHAN: No.

PN37

THE DEPUTY PRESIDENT: One way we can deal with it is this; we can certify the agreement, we can then apply to vary the certified agreement to remove an ambiguity or uncertainty pursuant to whatever section it is, section 170MD, is it? I will find it for you.

PN38

MS SHANAHAN: Yes.

PN39

THE DEPUTY PRESIDENT: Is it MD?

PN40

MS SHANAHAN: It is.

PN41

MS ILIAS: Yes, your Honour, 170MD(6).

PN42

THE DEPUTY PRESIDENT: Terrific. And you can then file the papers later.

PN43

MS SHANAHAN: Thank you, your Honour.

PN44

THE DEPUTY PRESIDENT: And indicate, you know, well, both file the papers indicating consent, and provided you have dealt with the issues on transcript today we can deal with it on that basis on the papers.

PN45

MS SHANAHAN: Thank you, your Honour.

PN46

THE DEPUTY PRESIDENT: Is that all right?

PN47

MS SHANAHAN: That would be agreed.

PN48

THE DEPUTY PRESIDENT: Agreed?

PN49

MS ILIAS: It would be agreed, your Honour.

PN50

THE DEPUTY PRESIDENT: Okay. Excellent.

PN51

MS SHANAHAN: The other issue I wanted to make submissions about, your Honour, was the fact that the agreement has in fact been filed more than 21 days after it was approved.

PN52

THE DEPUTY PRESIDENT: Yes.

PN53

MS SHANAHAN: Your Honour, we would like to make submissions that despite the failure of the parties to file the application and the supporting documentation for the certification of the agreement, the Commission has the power to extend the time for the application to be made, accept the application and consider it in the normal manner. For that, your Honour, we would refer you to the decision of Deputy President McCarthy in his decision of City of Stirling Enterprise Bargaining Agreement 2003, Domestic Collections. I have copies of that agreement if you would like.

PN54

THE DEPUTY PRESIDENT: All right, thank you. This is on extension of time, is it?

PN55

MS SHANAHAN: Yes, it is.

PN56

THE DEPUTY PRESIDENT: Thank you.

PN57

MS SHANAHAN: Your Honour, in paragraph 71 of that decision Deputy President McCarthy towards the end of that paragraph says:

PN58

The Commission has the jurisdiction to deal with the applications for the certification of agreements, even though they may have been lodged beyond the time prescribed.

PN59

In paragraph 72 Deputy President McCarthy also outlines the matters that he considers necessary for the Commission to consider in such an application, and those matters include the reason for the delay and whether the delay was in fact deliberate, if it was deliberate, whether there was any motivation for the delay and whether or not there are any repercussions and whether the objects of the Act could be violated by the delay. Your Honour, we would like to adopt that approach set out by Deputy President McCarthy, and we would submit that the reason for the delay is sort of twofold. There was a delay in some of the - in the communication between the parties as to the outcome of the vote.

PN60

THE DEPUTY PRESIDENT: Yes.

PN61

MS SHANAHAN: And then following that there was also a delay in the parties signing the agreement, and on a sort of a third aspect there, the employer in this instance in fact was instructing alternative legal representatives to provide the paper work and arrange for the paper work to be filed, and those representatives in fact did not do so, didn't take appropriate action to file the application when it was provided to them. As soon as we have received the paper work we have very closely with the union to have the agreement signed and filed as quickly as possible.

PN62

Your Honour, we would submit that the delay in this instance was not intentional and there was no mischief intended, and in fact the company started commencing payment in accordance with the agreement as soon as the union advised them that a valid majority had in fact accepted the - or had approved the agreement, and payments were backdated to July last year. On that basis we would submit, your Honour, that it was clear that it was the intention of the parties to abide by the agreement as soon as there was an indication that the parties had agreed about it.

PN63

THE DEPUTY PRESIDENT: Has there been any change in the composition of the workforce?

PN64

MS SHANAHAN: No, there hasn't, your Honour, and I would refer you to point 5.3 of the statutory declaration of Mr Halvey. He specifically says that there has been no change in the work force since the vote.

PN65

THE DEPUTY PRESIDENT: Okay.

PN66

MS SHANAHAN: Your Honour, we would also submit that the material that is contained within the statutory declarations which were filed in support of the application should be sufficient to satisfy the Commission that the employees were provided with access to the agreement for at least 14 days before the approval vote was conducted, that the terms of the agreement were explained to the employees prior to the approval vote was conducted, and that a valid majority of persons employed at the time whose employment would be subject to the agreement have genuinely approved the agreement, and as I said to you before, your Honour, there has been no change to the work force since that vote was carried out.

PN67

Your Honour, we would further submit that the agreement passes the no disadvantage test. It does include provisions for the dispute - prevention and settlement of disputes, and it does specify a nominal expiry date which is less than three years from the date on which the agreement will come into operation. Your Honour, we would request that the Commission extend the time period for filing of the application and we hope and expect that the Commission is satisfied that all substantive requirements of the Act have been met, and your Honour, on the basis of that we would request that the Commission certify the agreement.

PN68

THE DEPUTY PRESIDENT: Thank you. Ms Ilias.

PN69

MS ILIAS: Thank you, your Honour. The LHMU supports the submissions made by Ms Shanahan on behalf of the company in respect of all matters with the delay of the filing of the document. Your Honour, just for your information, we had a change of organiser during the period after the vote had taken place, so there was some delay from the union's perspective as well. I will not let Ms Shanahan accept all delays and liabilities in respect of that, but as she has pointed out, myself and her have worked closely together to have the application filed as soon as possible.

PN70

Also, your Honour, there are statutory declarations filed by Mr Brian Daly in support of the certification of this agreement, and I also rely upon that. If there is nothing further, your Honour.

PN71

THE DEPUTY PRESIDENT: Thank you very much. Right. First of all I will extend time as sought by the parties for the reasons given by them. Secondly, I will certify the agreement based on the material in the statutory declarations filed and the submissions put today. Thirdly, subject to lodgment of appropriate documentation within what, two days?

PN72

MS SHANAHAN: Yes, your Honour.

PN73

THE DEPUTY PRESIDENT: Thanks. I will rectify the ambiguity/uncertainty in the agreement and substitute the clauses set out in exhibit S1 for the ambiguous and uncertain clauses in the agreement I have just certified. I think that is all, isn't it?

PN74

MS SHANAHAN: Yes, your Honour. Thank you.

PN75

THE DEPUTY PRESIDENT: Terrific. Thank you very much.

ADJOURNED INDEFINITELY [10.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 AGREEMENT PAGES PN14