AG2004/7792, Transcript of Proceedings [2004] AIRCTrans 4564 (24 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 9077

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

AG2004/7792

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Mallee Family Care Inc for
certification of the Mallee Family Care
Inc Enterprise Agreement 2004

MELBOURNE

9.53 AM, MONDAY, 15 NOVEMBER 2004

PN1

MS S. MOORE: I am a solicitor from Gary Katz and Associates seeking leave to appear in these matters on behalf of Mallee Family Care Incorporated.

PN2

THE COMMISSIONER: Yes, thank you. Yes, I understand, Mr Smith, you appear from the ASU?

PN3

MR SMITH: Yes, thank you. No, Commissioner, I am actually appearing on behalf of an employee of Mallee Family Care who happens to be a member of the Australian Services Union.

PN4

THE COMMISSIONER: Yes.

PN5

MR SMITH: I do have an authority from the individual concerned but I am a little bit loath for the employer to be able to identify the individual. However, I am happy to show the Commissioner or provide the Commission with a copy of the authority.

PN6

THE COMMISSIONER: Yes, all right. Well, why don't you tender that at this stage and I will mark it Exhibit U1.

EXHIBIT #U1 AUTHORITY FROM EMPLOYEE

PN7

THE COMMISSIONER: Thank you. Yes, Mr Smith. Mr Smith, I am not going to make a ruling as to whether I am going to let you appear or not at this stage, but just to begin with, assuming that you do have a right to appear do you have any objection to my granting leave to Ms Moore to appear?

PN8

MR SMITH: No.

PN9

THE COMMISSIONER: No. Thank you. I am happy to grant you leave, Ms Moore. Now, Mr Smith, how would you - do you have something you want to say at the outset or would you like to hear from - would you like me to hear from Ms Moore first and then see what you have got to say?

PN10

MR SMITH: Commissioner, I would be opposing the certification of this particular agreement - - -

PN11

THE COMMISSIONER: Yes.

PN12

MR SMITH: - - - on the basis that I don't believe it meets the no disadvantage test.

PN13

THE COMMISSIONER: Yes.

PN14

MR SMITH: And I will be providing material to that effect.

PN15

THE COMMISSIONER: Yes, all right. Thank you. Yes, thanks, Mr Smith. Yes, you can sit down. Yes, Ms Moore.

PN16

MS MOORE: Thank you, Commissioner. We would be - Mallee Family Care would be objecting to what we say would have to be the union's application for leave to intervene.

PN17

THE COMMISSIONER: Yes.

PN18

MS MOORE: And obviously we haven't heard from Mr Smith as to whether he is saying that the union has a right to intervene pursuant to section 43(2) of the Act.

PN19

THE COMMISSIONER: Yes.

PN20

MS MOORE: Or whether he is actually seeking leave to intervene pursuant to 43(1) of the Act.

PN21

THE COMMISSIONER: Yes, yes.

PN22

MS MOORE: If he is seeking leave pursuant to section 43(2) of the Act, then obviously we would want our views heard.

PN23

THE COMMISSIONER: Yes, yes.

PN24

MS MOORE: And the same with 43(1) if we could be heard further on that matter, Commissioner.

PN25

THE COMMISSIONER: Yes, yes, that is fine.

PN26

MS MOORE: But should I also say that we do have a full list of the names of employees which we could provide obviously on a confidential and without prejudice basis to you.

PN27

THE COMMISSIONER: Yes. Yes, thanks.

PN28

MS MOORE: Thanks.

PN29

THE COMMISSIONER: Ms Moore and Mr Smith, I believe that the proper way and the way that I prefer to deal with such situations which, of course, are not unknown, is to ask the parties to put submissions to me in writing before I actually - and then I will actually list the matter for hearing. Ms Moore, what is your view with regard to that?

PN30

MS MOORE: Yes, Commissioner, we would be very much in favour of that.

PN31

THE COMMISSIONER: Yes. Yes, yes, all right. Mr Smith, that is how I would like to do it. I would like to give you a period of time to make written submissions. What period of time would you like?

PN32

MR SMITH: A very short period of time so the matter can progress, Commissioner.

PN33

THE COMMISSIONER: Yes, sure, sure. So would you like till Friday; is that too soon?

PN34

MR SMITH: No, that is okay, thank you, Commissioner. Could I just clarify matters. I believe that I have the authority with the Australian Services Union - - -

PN35

THE COMMISSIONER: Yes, yes. Well, I am not ruling in regard to that but I am more than happy to give you the courtesy of hearing you at this stage and to give you the opportunity to make written submissions so that we can move forward. I am certainly always anxious to try and extend a fair opportunity to people to be heard, even when I haven't reached a final conclusion as to whether they have got a right to be heard.

PN36

MR SMITH: Thank you, Commissioner.

PN37

THE COMMISSIONER: Yes, thank you. But you are happy to have until Friday?

PN38

MR SMITH: Yes, that will be fine, thanks very much, Commissioner.

PN39

THE COMMISSIONER: Yes, all right. Ms Moore, how long would you like after that to make written submissions in reply?

PN40

MS MOORE: Thank you, Commissioner, I think a week would be quite - - -

PN41

THE COMMISSIONER: A week. So if I gave you until the following Friday and then listed this for the week after.

PN42

MS MOORE: Could I take some quick instructions on that, Commissioner?

PN43

THE COMMISSIONER: Yes, please.

PN44

MS MOORE: Thank you.

PN45

MR SMITH: Excuse me, Commissioner, could I just clarify - - -

PN46

THE COMMISSIONER: Just one moment.

PN47

MS MOORE: Yes, Commissioner, thank you.

PN48

THE COMMISSIONER: Yes, yes, thanks. Yes, Mr Smith?

PN49

MR SMITH: Commissioner, I am just wishing to clarify whether or not it is seeking leave to appear on behalf of the employee concerned or intervention on behalf of the union?

PN50

THE COMMISSIONER: You should put your submission in on the basis on which you are seeking to have the matter progressed I think, Mr Smith.

PN51

MR SMITH: Thank you, Commissioner.

PN52

THE COMMISSIONER: Yes. I mean what I have indicated to you is I am not - I note the information which you have provided me with and which is confidential. I don't, of course, at this stage know whether the person whose name is mentioned is actually an employee or not and I am not proposing to attempt to satisfy myself with regard to that. It may well be, of course, Mr Smith, that you might want to have some discussions with the company in the meanwhile. You might consider it to be appropriate to do so but that is up to you.

PN53

I am just simply trying to give you the opportunity to put your position so that we can move forward and reach a decision as to whether the agreement should be certified or not.

PN54

MR SMITH: Thank you, Commissioner.

PN55

THE COMMISSIONER: Yes, all right. Well, I will issue directions to that effect, that you are to have until Friday to make submissions and you will frame those submissions in the way that you see as being appropriate, given the position that you believe that you are in, Mr Smith, and the company will then respond on the basis of the submissions that you put forward. I will then list the matter for hearing as quickly as possible the following week obviously. One doesn't want these things to be drawn out. Equally I do want to give the opportunities to the parties to be informed of each other's positions and to be able to put their case.

PN56

I do, however, believe it would be helpful for you to have some discussions with the company as well. It may well be, Mr Smith, that you might use this opportunity to have the discussions immediately after I adjourn today but that is up to the parties. Good. Thank you very much, I now adjourn. We will inform the employee representative who was going to be put on phone hookup and it may well be that you might want further - it might well be in response to anything that comes from Mr Smith that there may be further evidence that may actually be - that you will actually need to have that person here in Melbourne.

PN57

It may be helpful for that person to be in Melbourne at the time of the next hearing but perhaps we will be in discussion about the issue of witnesses and the like closer to the time. Thank you. I now adjourn.

ADJOURNED INDEFINITELY [10.02am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #U1 AUTHORITY FROM EMPLOYEE PN7