AG2005/4060, Transcript of Proceedings [2005] AIRCTrans 1309 (10 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11745-1

COMMISSIONER GRAINGER

AG2005/4060

APPLICATION BY PEERLESS HOLDINGS PTY LTD & AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE-VICTORIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4060)

MELBOURNE

10.01AM, TUESDAY, 31 MAY 2005

PN1

MR P DAVEY: I appear on behalf of the Australasian Meat Industry Employees Union.

PN2

MR R RONDINELLI: I appear for Peerless Holdings Pty Ltd. Appearing with me this morning is MR R GILMOUR of the company.

PN3

THE COMMISSIONER: Yes. Good. Thanks very much. Mr Rondinelli you are going to start off are you?

PN4

MR RONDINELLI: Yes I will Commissioner. As you would be aware this is an application made under Division 2 of Part VIB of the Act for certification of an agreement made in accordance with section 170LJ. The terms of the agreement were reached between the company and the Australasian Meat Industry Employees Union on behalf of employees covered by the Federal Meat Industry Processing Award. Commissioner as you would be aware, getting the parties to this stage has taken some effort in that the original agreement voted on and approved by the employees contained certain matters which in light of the Electrolux case were ruled, did not pertain to the employment relationship.

PN5

Both the company and the union have worked hard over a period of some months now in an effort to correct any problematic clauses and ensure that all the matters in the agreement comply with section 170LI of the Workplace Relations Act. This included deleting a number of clauses which were duly identified by the Commission. Commissioner I am instructed that the company has taken reasonable steps to ensure that at least 14 days before any approval was given to the agreement that all the employees had ready access to the agreement in writing and the terms of the agreement were explained to the employees. The agreement was then approved by employees on 12 May 2005.

PN6

Commissioner, the company has prepared a statutory declaration which it believes meets all the requirements of the Act rules and regulations of the Commission and the parties further submit all the requirements of section 170LJ and 170LT have been met namely the agreement does not disadvantage the employees covered by it. A valid majority of employees generally approved the agreement and the agreement contains a dispute prevention settlement procedure at clause 6.1 and the period of operation of the agreement is set out in clause 1.3 where it is stated the agreement will expire on 30 November 2007. Those are the submissions of the company and therefore we request the Commission certify the agreement in the terms sought.

PN7

THE COMMISSIONER: Yes, thank you. Yes, Mr Davey?

PN8

MR DAVEY: Yes sir, I concur with the submissions by Mr Rondinelli. You should have in your possession a statutory declaration sworn by myself.

PN9

THE COMMISSIONER: Yes.

PN10

MR DAVEY: And we believe it complies in respect of the matters that were mentioned by Mr Rondinelli and we would seek certification of the agreement accordingly.

PN11

THE COMMISSIONER: Yes thank you. I note, Mr Rondinelli and Mr Davey, that my associate has drawn to your attention the consequence of what I understand is the variation of the agreement to meet the Electrolux concern, so dropping provisions out means that there are certain provisions of the agreement which appear to hit a vacuum because there is no, in the end there is no establishment or definition of a consultative committee. There are a number of clauses that refer to the existence of a consultative committee. That is not a problem for me in terms of certification of the agreement but I had just wanted to draw it to the parties' attention in case you hadn't, well obviously you had, as my associate has informed me, been aware of it but decided that you were happy to live with the document as it is. Is that right, Mr Rondinelli?

PN12

MR RONDINELLI: Yes Commissioner. We appreciate the fact that that was highlighted to the parties and the company is aware of it, wish for the agreement to be certified but will obviously make arrangements with the union so as to the best way to interpret what the clauses mean.

PN13

THE COMMISSIONER: Yes.

PN14

MR RONDINELLI: Obviously yes there is no, there is effectively no 7.2 now.

PN15

THE COMMISSIONER: Yes.

PN16

MR RONDINELLI: Because it has been removed.

PN17

THE COMMISSIONER: Well that is right and that means that if the agreement comes back to the Commission with regard to a dispute about any of those provisions which refer to the consultative committee there is not going to be anything, there is not going to be anything for the Commission to look at unless it was, I suppose, that the parties have subsequently agreed on some process with regard to consultative committee in which case they might be able to try and adduce that as some evidence to link those clauses into. That is not a finding that is just a, maybe just an opinion on my part as to what you might be able to do in the future.

PN18

MR RONDINELLI: That is right. I think one of the suggestions and something that the parties would consider is at least providing themselves with some clear definition for them to work with going forward as to what ..... references consultative committee mean.

PN19

THE COMMISSIONER: Yes. All right. Okay. Fine. Thanks. Mr Davey?

PN20

MR DAVEY: Yes sir, I have no problem with those arrangements.

PN21

THE COMMISSIONER: Yes. Good. Fine. Thank you very much. Well, I am satisfied that the Peerless Holdings Pty Ltd and AMIEU (Evans Street) Enterprise Agreement 2004 meets all the relevant statutory requirements for certification. I note that the term of the agreement at clause 1.3 will be from certification to 30 November 2007 so it doesn't exceed three years. There is an appropriate dispute resolution procedure set out at clause 6. The agreement appears to provide advantages over the award. I note in particular the divisions of clauses 2.1, clause 3.5, clause 4.1, clauses 4.3 to 4.6, clause 5.1 to 5.3 and clause 7.11 and accordingly I do certify this agreement today the 31 May 2005 and a certificate will issue shortly. I thank the parties for their submissions. I now adjourn.

<ADJOURNED INDEFINITELY [10.08AM]