AG2004/7271, Transcript of Proceedings [2004] AIRCTrans 4770 (7 December 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 9215

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2004/7271

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Sunbeam Foods Pty Ltd trading as
Australian Dried Fruit Sales and Another
for certification of the Sunbeam Foods -
Irymple Packaging Site Enterprise
Agreement 2004

MELBOURNE

10.20 AM, FRIDAY, 26 NOVEMBER 2004

PN1

MR R. RONDINELLI: I appear for the Australian Industry Group on behalf of Sunbeam Foods Australia Pty Ltd trading as Trading Dried Fruit Sales.

PN2

MS C. CHEW: I appear for the AMWU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Chew. Yes?

PN4

MR RONDINELLI: Your Honour, this is an application made under division 2 of Part VIB of the Act for certification of the agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the AMWU on behalf of employees covered by the Metal Engineering and Associated Industries Award 1998 and the Food Preservers Interim Award 1986. Your Honour, we 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).

PN5

The Commission will note that while the agreement was approved by employees on 20 August 2004, it was not filed until 14 September 2004.

PN6

THE SENIOR DEPUTY PRESIDENT: Why should I exercise my discretion?

PN7

MR RONDINELLI: I would just submit, your Honour, we experienced some delays in receiving statutory declarations back from the parties but I am instructed that the composition of the workforce has not changed since the vote was taken.

PN8

THE SENIOR DEPUTY PRESIDENT: Well, it is only four days and I will exercise my discretion and extend the time, yes.

PN9

MR RONDINELLI: Thank you, your Honour. Your Honour, the company has prepared statutory declarations which they believe meet all the requirements of the Act, regulations and rules of the Commission. We further submit that all the requirements of section 170LJ and 170LT have been met, mainly, the agreement does not disadvantage the employees covered by it and a valid majority of employees employed at the time approved the agreement on 20 August 2004.

PN10

Access to the agreement and explanation of the terms of the agreement occurred in accordance with the requirements of section 170LR and was appropriate having regard to the particular circumstances of the employees covered by the agreement before. The company requests, or submits, that the Commission certify the agreement in the terms sought effective from today's date.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, can you tell me what clause 12.1.4.1 means, please, and 12.1.4.2.?

PN12

MR RONDINELLI: Your Honour, I don't have any instructions on the particular details of the clause, only what is there. I haven't been involved at all in the making of this agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: Well, on one reading, and the reading that I superficially apply to it, it suggests that labour hire companies can't be used, that the company can't engage contractors. If that is the case it falls foul of Electrolux, doesn't it?

PN14

MR RONDINELLI: Yes and we would submit that - - -

PN15

THE SENIOR DEPUTY PRESIDENT: And I can't certify it, can I?

PN16

MR RONDINELLI: No, well, that is a matter that you determine - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Well, what is your submission on that, Mr Rondinelli?

PN18

MR RONDINELLI: Well, the company has obviously been informed of the Electrolux decision and their instructions have been clear to us that the matter be left to determination of the Commission and if there were, in your view - - -

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, but the Commission relies on the submissions of the parties to assist it to make a decision. I need submissions, Mr Rondinelli. Have you turned your mind to it?

PN20

MR RONDINELLI: No, I haven't, not that clause. I haven't had specific contact with the company in relation to that particular clause.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, are you applying - do you want an adjournment so that you can address those issues?

PN22

MR RONDINELLI: I am happy to - - -

PN23

THE SENIOR DEPUTY PRESIDENT: I must say that, as presently minded without the benefit of submissions to tell me that it complies with Electrolux, I would be inclined to decline to certify the agreement having regard to that clause.

PN24

MR RONDINELLI: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: And while I am raising matters with you, 12.14 arguably offends the non discrimination provisions in the Act and clause 12.16 requiring the payment of shop stewards when they are not working and when they are performing union activities outside their ordinary time, also strikes me as possibly offending against Electrolux.

PN26

MR RONDINELLI: Yes, well, your Honour - - -

PN27

THE SENIOR DEPUTY PRESIDENT: If I have no submissions I would decline to certify it.

PN28

MR RONDINELLI: Yes, then, we would ask that the matter be adjourned and then we can look at those specific issues which you have raised - - -

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR RONDINELLI: - - - turn our mind to them and once we have dealt with them then seek for the matter to be relisted.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, well, this matter will be adjourned to a date to be fixed. The parties are to notify me if they want the matter relisted.

ADJOURNED INDEFINITELY [10.26am]