AG2004/3526, Transcript of Proceedings [2004] AIRCTrans 2920 (28 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 7899

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2004/3526

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Australian Leisure and Hospitality Group
Limited t/as Deer Park Hotel for certification
of the Deer Park Hotel Enterprise Agreement
2004

MELBOURNE

10.01 AM, MONDAY, 19 JULY 2004

PN1

MR B. RICHARDSON: I appear on behalf of the Deer Park Hotel which is part of the Australian Leisure and Hospitality Group. Appearing with me is MR J. O'BRIEN and I also announce the appearance of the employee representative at the hotel, D. HEGARTY.

PN2

THE DEPUTY PRESIDENT: Thank you. Yes, go ahead, Mr Richardson.

PN3

MR RICHARDSON: Yes, thank you, your Honour. Your Honour, this is an application made under Division 2 of Part VIB of the Workplace Relations Act for the certification of the workplace agreement pursuant to section 170LK of the Act. The proposed agreement is entitled the Deer Park Hotel Enterprise Agreement 2004 and as the title suggests, applies to the Deer Park Hotel which is located at Ballarat Road in Deer Park. Your Honour, it is intended this agreement supersede an existing agreement known as the Deer Park Hotel Enterprise Agreement 2001, which was also an agreement made under section 170LK of the Act and which was certified by the Commission on 15 March 2002 and which had a nominal expiry date of 15 March 2004, being two years from the date of certification of that particular agreement.

PN4

The print reference for that agreement, your Honour, is PR914754. Your Honour, we generally rely on the supporting statutory declarations filed with the application, but in particular would like to make the following comments. Firstly, as just noted the agreement itself supersedes an existing agreement. In fact there have been some three previous agreements in total to date. Secondly, during the course of the latest discussions regarding the proposed new agreement a notice of the company's intention to enter into an agreement was sent to the employees concerned on 6 May 2004 and the company also advise of the right of employees to request representational rights, together with a copy of the proposed agreement. For the Commission's information I would like to tender a copy of that particular letter.

PN5

THE DEPUTY PRESIDENT: Yes.

EXHIBIT #A1 LETTER TO EMPLOYEES FROM THE COMPANY DATED 06/05/2004

PN6

MR RICHARDSON: Thank you, your Honour. Your Honour, it is not my intention to read through that letter verbatim but we submit that it generally meets the requirements of section 170LK(4) of the Act specifically with the reference, as I say, to the right of employees to request representation if so desired.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MR RICHARDSON: And that wording replicates the wording in the Act itself.

PN9

THE DEPUTY PRESIDENT: You can't do much better than that, can you, Mr Richardson?

PN10

MR RICHARDSON: Finally, your Honour, it is our submission that the agreement meets the requirements of section 170LT of the Act. Specifically we submit that firstly the agreement meets the requirements and passes the no disadvantage test as per section 170LT(2) of the Act; secondly, that a valid majority of employees voted in favour of the agreement as required under section 170LT(6) of the Act. Specifically the 38 employees employed at the hotel at the time of the vote taking place, the results were some 24 to 3 in favour of the agreement itself and that election took place on 24 May this year.

PN11

As indicated in the notice of intention and also circulated to employees subsequent to that as well, employees were provided with a summary which showed the key terms of the proposed new agreement and where the differences lay between the previous agreement and the proposed new agreement as well. So in submission on that point, your Honour, we submit that it generally met the requirements of section 170LT(7) of the Act. Next, your Honour, we submit that the disputes procedure - sorry, the proposed agreement contains a disputes procedure. It is found at clause 13 of the agreement and we submit that that meets the requirements of section 170LT(8) of the Act.

PN12

The agreement is intended to operate for a period of two years from the date of certification as provided in clause 4 of the agreement and we submit that that meets the requirements of section 170LT(10). In closing, your Honour, at this point we submit that the agreement generally satisfies all the requirements of the Act, and accordingly, unless the Commission has any specific questions or concerns regarding the agreement we would otherwise rely on the submissions made and supporting declarations and respectfully request that the agreement be certified in the terms as presented to the Commission. Thank you.

PN13

THE DEPUTY PRESIDENT: Thanks, Mr Richardson. Just one question. Can I take you to 4.2 of the stat dec, Mr Richardson.

PN14

MR RICHARDSON: Yes, your Honour.

PN15

THE DEPUTY PRESIDENT: Which asks whether any organisation of employees notified the employee in writing that it intends to be - or that it wants to be bound by the agreement pursuant to section 170M(3)(c) of the Act. I note that has been ticked as a yes.

PN16

MR RICHARDSON: Yes.

PN17

THE DEPUTY PRESIDENT: I have no such application, Mr Richardson. I just wonder whether that is a mistake.

PN18

MR RICHARDSON: Your Honour is correct, it is a mistake. We, in fact, should have ticked the no box. If your Honour seeks we would seek to - - -

PN19

THE DEPUTY PRESIDENT: Well, there is a 50 per cent chance of getting it wrong.

PN20

MR RICHARDSON: No, we were wrong. It has, in fact - it should have been ticked, the no box. We can either submit an amended declaration or - - -

PN21

THE DEPUTY PRESIDENT: I don't think anything much will turn on it, I just raise it in case there was intended to be some such application, but you are not aware of any such application, Mr Richardson?

PN22

MR RICHARDSON: Yes, the same would follow for 4.3 as well, your Honour.

PN23

THE DEPUTY PRESIDENT: Yes, as I say, you are not aware of any such application?

PN24

MR RICHARDSON: No.

PN25

THE DEPUTY PRESIDENT: No.

PN26

MR RICHARDSON: No, there hasn't been any application, your Honour.

PN27

THE DEPUTY PRESIDENT: Yes, 4.3, that is right. That is another one where the wrong box has been ticked.

PN28

MR RICHARDSON: Yes.

PN29

THE DEPUTY PRESIDENT: Yes, thanks, Mr Richardson.

PN30

MR RICHARDSON: Thank you, your Honour.

PN31

THE DEPUTY PRESIDENT: Yes, I note the error to the statutory declaration at paragraphs 4.2 and 4.3, in that in both cases the yes box has been ticked rather than the no box. In my view nothing turns on this error and I see no reason that there should be any statutory declaration in an amended form submitted. The error that is there does nothing to change any of the other clauses within that statutory declaration. I am therefore satisfied that the relevant provisions of the Act have been met in respect of this application. I am satisfied that the Deer Park Hotel Enterprise Agreement 2004 can be certified and it will be from today's date. The agreement will reach its nominal expiry date on 18 July 2006. The matter is adjourned. Thank you.

ADJOURNED INDEFINITELY [10.10am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER TO EMPLOYEES FROM THE COMPANY DATED 06/05/2004 PN6