AG2004/5497, Transcript of Proceedings [2004] AIRCTrans 3348 (26 August 2004)

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Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS


O/N 814
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG 2004/5497

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Boom Logistics Ltd for certification of
the Boom Logistics/Employee Naval Base
Industrial Agreement 2004/2005

PERTH

10.04 AM, FRIDAY, 13 AUGUST 2004

PN1

MR C. BOYLE: I seek leave to appear on behalf of the applicant.

PN2

THE DEPUTY PRESIDENT: Leave is granted. There is no representative on behalf of the employees, I note.

PN3

MR BOYLE: No, sir.

PN4

THE DEPUTY PRESIDENT: Yes. Thank you. Yes, I sent to you, Mr Boyle, an issue report just summarising my overview of the application and the agreement. And in it I sought to bring to your attention that the agreement appeared to be one day shy of the requirements of the legislation with respect to section 170LK(2). In all other respects, everything appeared to be in order, Mr Boyle. So, do you wish to address me on that issue or any other issues?

PN5

MR BOYLE: Yes, sir.

PN6

THE DEPUTY PRESIDENT: Yes. Thank you.

PN7

MR BOYLE: I have for your convenience a copy of the applicant's submissions.

PN8

THE DEPUTY PRESIDENT: Yes, thank you.

PN9

MR BOYLE: Sir, in the light of the decision the Commission handed, your decision the Commission handed down, on 9 August in Boom Logistics CFMEU Welshpool Industrial Agreement 2004-2005, it is apparent that the applicant has not complied with the strict requirements of the Act in making this agreement. The applicant had every intention to comply. And whilst the applicant's statutory declaration shows that the letter of intention and the agreement was provided to the relevant employees on 22 June the relevant letter of intention was actually dated 18 June which was a Friday and handed to the Depot Manager, along with the agreement.

PN10

The Depot Manager on the Monday, which was 21 June provided the letter of intention or placed the letter of intention and the agreement on the work clip boards of the relevant employees late in the day. And probably those employees only received the agreements when they came to work the next day which was the 22nd, as reflected in the statutory declaration. So, the employer, whilst intending to comply, has fallen foul of the strict requirement and has actually only provided 13 clear days, even though it was well aware that the requirement was strict, and it had intended to comply.

PN11

The applicant submits that the Commission has the power to correct, amend or wave this error, defect or irregularity under section 111(1)Q and, therefore, should, nevertheless, be able to accept the application for the certification. And we make this submission in the light of your decision handed down on 9 August in which you raised the point that that was a potential avenue to get around or overcome problems with an application. Now, in re. National Tertiary Education Industry Union which is print S0688 Senior Deputy President Williams applied section 111(1) to make valid an otherwise invalid application under regulation 48 of the Workplace Relations regulations. Now, in that case, Senior Deputy President Williams applied section 111(1) to overcome non-compliance with a mandatory application or mandatory application requirements. By virtue of section 111(2), section 111(1) applies to:

PN12

Any proceeding before the Commission unless some other section of the legislation indicates that the provisions of the latter are inapplicable to the particular proceedings in question.

PN13

Now, in conformity with the approach taken by the Senior Deputy President Williams in re. National Tertiary Education Industry case, the applicant submits that the word "proceeding" should be broadly construed and, in fact, it applies to the application currently before the Commission. The applicant further submits that the provisions of section 111(1)Q applies to an application or a purported application for certification of the agreement under section 170LK at all its stages including a hearing as to whether the agreement was properly made. In conformity with the approach of Senior Deputy President Williams at paragraph 165, the applicant submits that where, by reason of non-compliance with section 170LK a purported application for certification of an agreement under Division 2 is to defective in substance or form that it would not constitute an application, the Commission has the power under section 111(1) to allow an amendment or a correction which would bring the application into compliance with the requirements of Division 2.

PN14

The case of National Tertiary Education Industry Union v Monash University and another, which a decision was handed down by Senior Deputy President Williams, Deputy President McCarthy and Commissioner Tolley on 10 June of this year, the applicant says that this case is distinguishable from the present matter because in that case the agreement filed for certification was entirely different from the one provided to the employees. It was substantially different. And that is what the majority - - -

PN15

THE DEPUTY PRESIDENT: Well, there was one difference. I don't know that I would take it so far to say that it was entirely different. There was one party, yes.

PN16

MR BOYLE: There was one difference. Okay. Yes, sir, I take your point, sir. But it was a fundamental difference.

PN17

THE DEPUTY PRESIDENT: There was a difference. That is what the majority found, yes.

PN18

MR BOYLE: Further, the case of Shop Distributive and Allied Employees Association New South Wales v O'Brien's Catering should not be applied, as the applicants in that case did not seek to have the Commission apply its powers under section 111(1) and there was no argument on that point. Now, there is a clear and understandable intention revealed in section 110(2)C of the Act that:

PN19

Proceedings before the Commission should be directed to the merits and the technicalities of legal form should not be regarded.

PN20

And the authority for that proposition is in the re. National Tertiary Education Industry Union case previously mentioned at paragraph 161. The applicant says that the Commission should, therefore, use its power under section 111(1) to correct the defects or errors in the current application. Further, subject to the Commission's view on the application of section 111(1), the applicant would seek to put a submission in relation to section 170LV(1)B of the Act.

PN21

THE DEPUTY PRESIDENT: Perhaps if you can put that submission in any event.

PN22

MR BOYLE: If the Commission is minded to accept this application by applying section 111(1)Q, the applicant would ask the Commission to instead of refusing to certify the agreement, if the Commission finds that it can't - - -

PN23

THE DEPUTY PRESIDENT: If I can't use section 111(1), if I find that, then you are suggesting that I do something else, are you, or - - -

PN24

MR BOYLE: Yes. Provide the applicant with an opportunity to take any necessary action to make this agreement certifiable.

PN25

THE DEPUTY PRESIDENT: Yes. So, is that your submission in that regard, is it?

PN26

MR BOYLE: We would say that rather than quashing this application, if you could give the applicant an opportunity to deliver another letter of intention, have 14 clear days and have another vote and then have this matter brought back on, rather than starting the whole process from scratch.

PN27

THE DEPUTY PRESIDENT: Yes, I understand. So, I will reserve my decision, Mr Boyle. There is nothing further you wish to put?

PN28

MR BOYLE: No, sir.

PN29

THE DEPUTY PRESIDENT: Yes. Thank you. I will endeavour to make a decision on this expeditiously and let you know as soon as possible. This matter is adjourned. Thank you.

ADJOURNED INDEFINITELY [10.16am]