AG2004/8199, Transcript of Proceedings [2004] AIRCTrans 5074 (23 December 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 9427

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LLOYD

AG2004/8199
AG2004/8200

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MH of the Act
by Camberwell Anglican Girls' Grammar School
to terminate the Camberwell Anglican Girls'
Grammar School Certified Agreement (Teachers)
2003

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by Camberwell Anglican Girls' Grammar School
for certification of the Camberwell Anglican
Girls' Grammar School Certified Agreement
(Teachers) 2005

MELBOURNE

2.00 PM, TUESDAY, 14 DECEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Appearances please.

PN2

MR G. COLE: I am here representing the Camberwell Girls' Grammar School, I am the Business Manager.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Cole.

PN4

MS P. CHAIKIN-BADOER: I am representing the staff of Camberwell Girls' Grammar School.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Chaikin-Badoer.

PN6

MS A. VILLELLA: If the Commission pleases, I appear on behalf of the Independent Education Union of Australia.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Cole.

PN8

MR COLE: We are here today to get our old certified agreement terminated and our new one adopted or certified as far as the school is concerned, we are very happy to recommend it be certified.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Cole, we will terminate the old agreement which I probably think is not necessary but if you want to do that formally, we will do that after we actually certify the current agreement. That is the, in my view, the appropriate way to handle it. Now you submitted documentation, I think, in accordance with the requirements of the Act and the form.

PN10

MR COLE: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: It is customary to stand when addressing the Commission.

PN12

MR COLE: Sorry.

PN13

THE SENIOR DEPUTY PRESIDENT: And you are satisfied that all the requirements of section - of the Act are met for the agreement?

PN14

MR COLE: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: Okay. And I discern from your documentation that a valid majority of the staff voted for the agreement?

PN16

MR COLE: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: And they had access to the agreement for the necessary period before the vote was taken?

PN18

MR COLE: More than 14 days, yes.

PN19

THE SENIOR DEPUTY PRESIDENT: Good. And matters were appropriately explained to them and what the agreement entailed and all that sort of thing?

PN20

MR COLE: Yes, a member of our - the School Council met with staff and explained the changes.

PN21

THE SENIOR DEPUTY PRESIDENT: Okay. Okay, thank you. Ms Chaikin, do you have anything to say?

PN22

MS CHAIKIN-BADOER: No. We were very happy with the negotiations of the agreement and with the final result.

PN23

THE SENIOR DEPUTY PRESIDENT: Okay. And you submitted a statement, I think, is that right?

PN24

MS CHAIKIN-BADOER: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Villella.

PN26

MS VILLELLA: If the Commission pleases, we are seeking to - the Independent Education Union is seeking to be bound to this agreement and I seek leave to tender the following documents. A statement from the General Secretary attesting that the membership record is a true and correct record, the union membership for the school and pursuant to the Act, a letter from a member requesting that the union be bound to the agreement. I believe that we have met the requirements of the Workplace Relations Act and I ask the Commission to issue an order that the union be bound. Thank you.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the statement V1 and the letter V2.

EXHIBIT #V1 STATEMENT FROM THE GENERAL SECRETARY

EXHIBIT #V2 LETTER FROM MEMBER

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Cole, to clarify just one last point, I think you had a date, an expiry date in the agreement of January 2008; is that right?

PN29

MR COLE: 31 January 2008, correct.

PN30

THE SENIOR DEPUTY PRESIDENT: Right, so the intent is that the agreement will come into operation and take effect from - take effect from a date which will be the - - -

PN31

MR COLE: 1 February.

PN32

THE SENIOR DEPUTY PRESIDENT: 1 February 2005, okay, thank you.

PN33

I am satisfied that the Camberwell Anglican Girls' Grammar Certified Agreement (Teachers) 2005 was reached through a process consistent with that set out in section 170LK of the Act. I am satisfied that the requirements of 170LT of the Act are met and I am also satisfied that nothing arises in respect of section 170LU of the Act that would require the Commission to refuse to certify the agreement. Accordingly, I will certify the Camberwell Anglican Girls' Grammar School Certified Agreement (Teachers) 2005. The agreement will come into effect from 1 February 2005. The agreement shall remain in force until 31 January 2008.

PN34

Also I make a determination, I determine, in accordance with section 170M(3)(d) that the Independent Education Union of Australia will be bound by the agreement.

PN35

Now, Mr Cole, I understand that the second part of your being here today is to have the old agreement terminated; is that right?

PN36

MR COLE: That is correct but I think if we are starting a new agreement on that date, the old agreement actually expires at the end when there is no need - - -

PN37

THE SENIOR DEPUTY PRESIDENT: No.

PN38

MR COLE: The expiry is 31 January 2005.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, I think that is right and I should draw your attention to the Act operates in a way that an agreement, an existing agreement ceases to operate if it is replaced by another certified agreement and its nominal expiry date is past. So the current agreement expires about the time the new one - it expires on 31 January doesn't it?

PN40

MR COLE: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: So according to section 170LX(2) of the Act, the new agreement displaces the old agreement and ceases to be operational. So it is my view that you don't probably need to have a determination made by the Commission terminating the agreement. Also, I think there is a bit of difficulty in the Commission doing it today when the termination would take effect some time in the future. I understand that some employer associations feel it is a safe practice to formally terminate an agreement but the - my feeling is that some of those termination provisions are directed to when the parties agreement or it is something in the public interest to justify an agreement being terminated. Many employers do not go through that formal step of termination when they have a new agreement come into effect.

PN42

It has been drawn to my attention that we have listed the matter of the termination. Now there is a couple of ways to handle this. You could withdraw that application and if the application remains on foot, then I will have to issue a decision declining to do it which is probably not the neater way to go, I think. I mean, it is open to you to come back at any time if you do wish to go through that formal step of having the previous agreement terminated.

PN43

MR COLE: It appears to me that we don't need it terminated. I don't think there is going to be any problem but I'm not sure how I withdraw the - - -

PN44

THE SENIOR DEPUTY PRESIDENT: My associate will give you - will talk to you after the proceedings and work out the administrative processes for that. Well, thank you, Mr Cole. The Commission is adjourned.

ADJOURNED INDEFINITELY [2.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #V1 STATEMENT FROM THE GENERAL SECRETARY PN28
EXHIBIT #V2 LETTER FROM MEMBER PN28