AG2005/2890, Transcript of Proceedings [2005] AIRCTrans 1329 (15 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

10633

COMMISSIONER WHELAN

AG2005/2890

s.170LK - agreement with employees (division 2)

APPLICATION BY BALLARAT & CLARENDON COLLEGE
(AG2005/2890)
Victorian Independent Schools - Teachers - Award 1998

MELBOURNE

10.04AM, WEDNESDAY, 23 FEBRUARY 2005

PN1

MR N RUSKIN: Commissioner, I seek your leave to appear in these proceedings for Ballarat & Clarendon College.

PN2

THE COMMISSIONER: Thanks Mr Ruskin, leave is granted.

PN3

MR A ODGERS: I appear on behalf of the Independent Education Union of Australia, we're making an application to be bound to this agreement.

PN4

THE COMMISSIONER: Mr Ruskin, this is an application for certification on an agreement. I have received in relation to that a copy of the agreement itself. I've also received the statutory declaration made by Mr Rudge, Mr Sheppard and
Mr McColeman - - -

PN5

MR ODGERS: That's right.

PN6

THE COMMISSIONER: - - -and I do have a copy of the letter dated the
18 November 2004 which was the - statutory declarations indicate - was provided to all the employees in accordance with the provisions at 170LK2.

PN7

MR RUSKIN: Commissioner, given the list I see this morning that you have before you, there's nothing particular that I wanted to say to you in support of the application, except the usual things which I could go through. Such as the satisfaction of the 170LT and that the statutory declaration set out all the correct facts as to the passing of the no disadvantage test. But there is one thing I wanted to tell you, that two persons who voted in the ballot were not eligible to vote, that it can change the outcome - the outcome of the ballot and I have a statutory declaration from the returning officer. It was 53-45. Two people voted who were not eligible and that would have changed it at best to 51-45 and there's an authority of Commissioner Gay on this point where people were ineligible or eligible or not able to vote but it wouldn't have changed the vote, that doesn't cause the agreement to die. There are also two votes on the matter, the first one was held on 9 December and the second one commenced on 15 December. The second one was held because the first one, there had only been allowed two hours of time for the vote to take place, at lunch time on the last day of school and so it was held - - -

PN8

THE COMMISSIONER: It was a difficult time to get people to concentrate on voting, I would have thought.

PN9

MR RUSKIN: Exactly. Other than those matters, if there is no particular matter you want to raise with me, I request that the agreement be certified.

PN10

THE COMMISSIONER: Thank you for drawing that matter to my attention, I may not totally agree with Commissioner Gay in relation to where people who are eligible to vote don't have the chance, but people who weren't eligible to vote and do vote where their vote makes no difference to the outcome, I'm of the view that that should not prevent the agreement from proceeding to be certified. I have taken the opportunity, obviously, to read the documentation that has been lodged including the statutory declarations and the copy of the agreement. From my reading of those documents I'm satisfied that the matters contained in the agreement are matters of which pertain to the relationship of the employer and the relevant employees. I'm also satisfied by consideration of the relevant awards which cover these employees that the agreement would pass the no disadvantage test.

PN11

I will proceed therefore with the certification of the agreement. I also have a foreshadowed application by the Victorian Independent Education Union for an order that that organisation be bound by the agreement. In support of that, I have a request from an employee who is a member of the union, that the union be bound by the agreement. I also have the notice given by Mr Keenan on behalf of the union in relation to that application. Mr Odgers?

PN12

MR ODGERS: Yes, Commissioner. The only thing that I'd like to add to that is to provide you with a statement by the general secretary of the Victorian branch of the union, Mr Keenan. Attached to the statement as a true and correct copy of the unions membership list for Ballarat. In further satisfaction of the provisions of 170M, I seek leave to tender that.

PN13

THE COMMISSIONER: Yes, thanks Mr Odgers.

PN14

MR ODGERS: Thank you very much.

EXHIBIT #VIEU1 STATEMENT OF MR KEENAN

PN15

MR ODGERS: I've nothing to add.

PN16

THE COMMISSIONER: Thank you. Mr Ruskin does the college have any objection to the application?

PN17

MR RUSKIN: No.

PN18

THE COMMISSIONER: On the basis of the material that's in front of me in relation to the application that has been made by the union to be bound by the agreement. I'm satisfied that the requirements of section 170M have been satisfied in relation to that application. I should therefore issue an order that the Victorian Independent Education Union will be bound by the Ballarat & Clarendon College certified agreement 2005/2007. In fact I think it should be Independent Education Union of Australia that is the party bound, not the Victorian Branch.

PN19

MR ODGERS: That's right.

PN20

THE COMMISSIONER: Yes. All right. Apart from that, I think that that deals with the requisite statutory requirements for certification of the agreement. In accordance with the normal procedure, a certificate will be issued indicating that the agreement has been certified from 23 February 2005, that the nominal expiry date is three years from the date of that certification and that the Independent Education Union of Australia will be a party bound.

<ADJOURNED INDEFINITELY [10.10AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VIEU1 STATEMENT OF MR KEENAN PN14