AG2004/5087, Transcript of Proceedings [2004] AIRCTrans 2620 (12 July 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 7675

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2004/5087

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Incitec Pivot Limited and Others for
certification of the Incitec Pivot Limited,
Portland Enterprise Agreement 2004

MELBOURNE

10.11 AM, WEDNESDAY, 30 JUNE 2004

PN1

MR J. BUCHANEK: I appear for the Australian Industry Group on behalf of Incitec Pivot Limited.

PN2

MR S. McKAY: I appear for the CEPU Electrical Division.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes.

PN4

MR BUCHANEK: Senior Deputy President Kaufman, this is an application made under division 2 of part VIB of the Act for certification of an agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the CEPU and the AWU on behalf of employees covered by the Metal, Engineering and Associated Industries Award 1998.

PN5

THE SENIOR DEPUTY PRESIDENT: Why is there nobody here from the AWU, do you know?

PN6

MR BUCHANEK: I beg your pardon, sir?

PN7

THE SENIOR DEPUTY PRESIDENT: Do you know why there is nobody here from the AWU?

PN8

MR BUCHANEK: I am not sure, your Honour. I don't know.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, go on.

PN10

MR BUCHANEK: And the Artificial Fertiliser and Chemicals Industry Award 2001. The parties seek for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the 21-day limit prescribed in section 170LM(2). The Commission will have noted that while the agreement was approved by the employees on 23 April 2004, it was not filed until 18 June 2004 and the reason for the delay, your Honour, is that we were waiting return of union statutory declarations and since that time, I have been instructed that the employee numbers have not changed since the approval date.

PN11

The parties have prepared statutory declarations which the parties believe meet all the requirements of the Act, regulations and rules of the Commission. The parties further submit that all the requirements of section 170LJ and section 170LT have been met, namely the agreement, the parties submit, does not disadvantage the employees covered by it and that is noted in points 7.3 and 7.4 of the statutory declaration. A valid majority of employees at the time genuinely approved the agreement on 23 April 2004.

PN12

Access to the agreement and an explanation of the terms of the agreement occurred in accordance with section 170LR and it was appropriate having regard for the particular circumstances of the employees covered by the agreement. The agreement contains a dispute settlement procedure at clause 16 and the period of operation of the agreement is set out in clause 6, where it is stated that the agreement will expire on 30 June 2007. The parties therefore request that the Commission certify the agreement in the terms sought.

PN13

THE SENIOR DEPUTY PRESIDENT: I notice at clause 16, the grievance procedure provides for the involvement of a union organiser or representative during the disputes procedure. Do you undertake that if an employee who is not a union member wishes to be represented by somebody other than a union official, that you would allow that?

PN14

MR BUCHANEK: We do, indeed.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr McKay.

PN16

MR McKAY: Yes, your Honour, the CEPU Electrical Division would fully support the submission today by Mr Buchanek. We would also ask the Commission to extend an extension of time under section 111(1)(r). If the Commission pleases.

PN17

THE SENIOR DEPUTY PRESIDENT: Would you tell me why I should extend time? It is your statutory declaration that was very late. Why was it received so late?

PN18

MR McKAY: The reason I can only give you for that, your Honour, is that we received the document in our office from the AIG on 8 or 9 June. The organiser who was looking after that particular project was on holiday and after he came back, by the time he returned then to the Melbourne office that we actually processed the documentation for signing. Being that that organiser is the one who looks after that particular job, no-one else in the office was under any understanding of the terms and conditions of that agreement. That is the only explanation I can give you, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Well, the time limits are there for a reason and if somebody is going on holidays and has got unfinished business, one would expect that something is done by way of hand-over, but I will extend the time in this instance. Are you prepared to give the same undertaking, Mr McKay, that if a person who is not a union member is involved in a grievance, that person can have a representative of his or her own choice?

PN20

MR McKAY: I believe that would be the case, your Honour, yes.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, having received those undertakings, I am satisfied that the requirements of the Act have been met and I will extend the time, as I indicated until the date of filing and the agreement will be certified to operate in accordance with its terms from today's date. Adjourn the Commission.

ADJOURNED INDEFINITELY [10.15am]