AG2004/7563, Transcript of Proceedings [2004] AIRCTrans 4161 (27 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 8773

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

AG2004/7563

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Visy Paper Pty Ltd t/as Visy Recycling
and Another for certification of the Returned
Materials Processing Agreement Gillman 2004

MELBOURNE

10.22 AM, MONDAY, 18 OCTOBER 2004

PN1

MR R. RONDINELLI: I appear for Australian Industry Group on behalf of Visy Paper Pty Ltd trading as Visy Recycling.

PN2

THE COMMISSIONER: Yes. Thank you. I want to state for the purpose of the record that the organiser from South Australia who has been dealing with this matter has, not surprisingly, not appeared at this hearing that was requested for Melbourne. The AWU in Melbourne are unable to attend. We will proceed with the certification and provide an opportunity for Mr Polanco for the AWU in South Australia to confirm that the certification should proceed. Having said that, save for the lodgment of the application, the agreement has been checked and if I could have your submissions, Mr Rondinelli, both in terms of the agreement, the lateness, and any matters that relate to the Electrolux decision of the High Court.

PN3

MR RONDINELLI: Yes, certainly. Commissioner, this is an application made under Division 2 of Part VIB of the Act for Certification of Agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the Australian Workers Union, Greater South Australian Branch, on behalf of employees covered by the Returned Materials Processing Award. 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).

PN4

The Commission will have noted that while the agreement was approved by employees on 22 July 2004 it was not filed until 27 September 2004. I am instructed the reason for the delay in filing was due to a number of administrative delays in processing the agreement, including referring this matter to Mr Polanco in South Australia, and also getting the agreements back from both the union and the company. Commissioner, I am instructed that the composition of the workforce has not changed since the vote to approve the agreement was taken.

PN5

The parties have prepared statutory declarations which they believe meet all of the requirements of the Act, regulations and rules

PN6

of the Commission. The parties further submit that all the requirements of 170LJ and 170LT have been met, namely the agreement does not disadvantage the employees covered by it and a valid majority of employees employed at the time generally approved the agreement . The agreement contains a dispute settlement procedure at clause 9 and the period of operation of the agreement is set out in clause 5, where it is stated the agreement will expire on 18 October 2007.

PN7

The company is aware of the recent Electrolux case and, as it may be known, that there is currently a proceeding before the Commission where AI Group have made submissions in that proceeding. From this point - I mean, the company is really happy to seek the direction of the Commission as to their interpretation of this particular agreement. But, on our reading, there would not appear to be clear matters that do not pertain to the employment relationship, but there - but we are, like many, still unclear as to the way the Commission may interpret this agreement in light of the High Court decision and are happy for the Commission to make a ruling on that.

PN8

THE COMMISSIONER: Yes, thank you.

PN9

MR RONDINELLI: Therefore, stating all that, the parties would, if there is no issues in relation to the Electrolux matter, request the Commission certify the agreement in the terms sought.

PN10

THE COMMISSIONER: Thank you. In relation to the application for extension of the time to lodge, I do grant extension pursuant section 111(1)(r) of the Act. I have had the opportunity to go through the agreement and, on my reading, there are no matters which are contrary to issues contained in the High Court decision in Electrolux, regarding matters pertaining to the employer, employment relationship - I beg your pardon, employer, employee relationship.

PN11

On that basis, I have decided to proceed to certify the agreement. I believe that the agreement meets the provisions of the Act and is consistent with the regulations of the Commission, save that the extension of time issue has been ruled on. In accordance with section 170LT of the Act, the Returned Materials Processing Agreement Gillman 2004 is certified. The agreement shall come into force from today's date, 18 October 2004, and shall remain in force until 17 October 2007. As I indicated initially in these proceedings, I will provide an opportunity to Mr - - -

PN12

MR RONDINELLI: Polanco.

PN13

THE COMMISSIONER: - - - Polanco to confirm with my chambers that he has - he is still in agreement with this and to seek his view relating to the Electrolux matters. On the assumption that he has agreed, because we have not heard to the contrary, then the date of certification will remain at 18 October 2004. Obviously, if there are any other issues that arise then I will advise both parties. There being nothing further, these proceedings are adjourned.

ADJOURNED INDEFINITELY [10.28am]