AG2003/10506, Transcript of Proceedings [2004] AIRCTrans 293 (20 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N F2107

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/10506

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by Ovascan Marketing Pty Ltd and Transport
Workers Union of Australia for certification of the
Top of the Range Food Products Certified Agreement 2003

BRISBANE

11.35 AM, THURSDAY, 8 JANUARY 2004

PN1

MR P. KNIGHT: From the Queensland Chamber of Commerce Industry appearing on behalf of Top of the Range Food Products Pty Ltd.

PN2

MR D. PRIOR: Industrial Officer for the Transport Workers Union of Australia, Queensland Branch.

PN3

THE COMMISSIONER: Good, thanks, Mr Prior. The stand out issue in this matter, of course, is the matter of delay pursuant to Section 170LM. Mr Knight, are you going to say something about this?

PN4

MR KNIGHT: Commissioner, the only comment I can make is that the delay - to the best of my knowledge, if there has a delay been occurred, it's occurred - - -

PN5

THE COMMISSIONER: Well, let's just check our dates to make sure. These might be swimming on me a bit this morning.

PN6

MR KNIGHT: Yes.

PN7

THE COMMISSIONER: But according to the statutory declaration - well, you lodged on 16 December. I think the agreement was approved - yes, part 6.2 of the statutory declaration specifies the date the agreement is approved by valid majority of employees. The date specified is 3 October 2003. So we have an agreement that was approved on 3 October 2003, but was lodged on 16 December 2003. In my calculations, that is a span of time of 74 days and pursuant to Section 170LM of the Act if you subtract the 21 days, it means you're 53 days overdue.

PN8

MR KNIGHT: Commissioner, some of that delay would have been caused as a result of the union process of signatures requiring it to go from State and also Federal office for their signatures. If there is any other delay in addition to that, there were some considerations as regards to the company's operation. I know, prior to Christmas, there were some concerns about whether the company would be able to continue in a viable operation, and when the document was presented to me for filing, there had been an administrator appointed, and the matter had been agreed for it to proceed.

PN9

So I can only indicate, Commissioner, that the processes have been delayed partly by the normal signature requirements caused by State and Federal Union, and also due to consideration by the company's own internal management as a result of its financial position.

PN10

THE COMMISSIONER: Sorry, what is its status at the moment?

PN11

MR KNIGHT: At the moment there is an administrator that's been appointed, and the company is operating, and the last conversation I had was yesterday; it's operating with optimism to trade out. That's why the agreement was - that's why I was requested to lodge the agreement.

PN12

THE COMMISSIONER: Okay then. Mr Prior, are you in a position to add anything else to that?

PN13

MR PRIOR: No. Only that my recollection, particularly in October - we had a Federal Secretary that had leave, and in that sense, that may well have contributed to an extension in relation to that process.

PN14

THE COMMISSIONER: Was there any industrial action taken for the purposes of the making this agreement?

PN15

MR KNIGHT: Not to my understanding, Commissioner.

PN16

MR PRIOR: Not that I'm aware of, Commissioner.

PN17

THE COMMISSIONER: Yes. Okay. Because there is an interaction between Section 170LM and Section 170MS of the Act. If there was industrial action taken, that would weigh on my mind somewhat. I'm conscious of the fact that there would be no public or private interest benefited from not accepting the application as a valid application. I'm also particularly mindful of the fact that we're dealing with a company in a period when it's trying to, correct me if I'm wrong, Mr Knight, trade out of its past difficulties - - -

PN18

MR KNIGHT: That's my understanding.

PN19

THE COMMISSIONER: - - - and requires a period of stability, both for itself, in terms of its business operations, and its workforce. As a consequence, I'm of a view that I will accept the application being a valid application. Now, that said, let's move on.

PN20

MR KNIGHT: Thank you.

PN21

THE COMMISSIONER: So is there more - - -

PN22

MR KNIGHT: No, no, thank you very much.

PN23

THE COMMISSIONER: - - - is there anything else you want to say about the agreement?

PN24

MR KNIGHT: Sorry, Commissioner.

PN25

THE COMMISSIONER: Do you want to commend it to me perhaps?

PN26

MR KNIGHT: I'm not having a very good day today. I think it must be the New Year period.

PN27

THE COMMISSIONER: That's all right. I kept you waiting and I broke your train of thought.

PN28

MR KNIGHT: In respect of clarifying the question as to why it went over the 21 day period, Commissioner, all other matters and obligations as set out in the legislation have been clearly addressed in the statutory declarations that have been provided, both by the company and the union, and we would be commending that the agreement be certified from today's date.

PN29

THE COMMISSIONER: Good, thank you. Mr Prior, do you have anything else to add?

PN30

MR PRIOR: Thank you, Commissioner. Just to add to that, that we understand that the processes required by the Act have been complied with, particularly in relation to the processes in relation to the putting out of the agreement for the 14 days, the interaction between the union and management to achieve a new agreement. This agreement is a continuation of a previous agreement. It satisfies the no-disadvantage test. It has the appropriate dispute resolution settlement clause, and if there is nothing further, Commissioner, we certainly would commend the agreement to you for certification.

PN31

THE COMMISSIONER: Thanks very much, Mr Prior. I've already made a decision in relation to the operation of section 170LM of the Act. That said, I'm now satisfied the agreement taken as a whole meets the requirements of the Act and has been lodged in accordance - so far as otherwise qualified in relation to the Rules of the Commission, and I will certify the agreement effective as of today's date to operate in accordance with clause 1.4 of the agreement, and that is for a period of three years from today's date. Anything else, Mr Knight, Mr Prior?

PN32

MR KNIGHT: No, thank you, Commissioner.

PN33

MR PRIOR: Nothing further, Commissioner.

PN34

THE COMMISSIONER: Good, thanks. On that basis we're adjourned. Thank you.

ADJOURNED INDEFINITELY [11.45am]