AG2005/4544, Transcript of Proceedings [2005] AIRCTrans 1550 (18 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12176-1

COMMISSIONER WHELAN

AG2005/4544

APPLICATION BY LG ELECTRONICS AUSTRALIA PTY LTD & NATIONAL UNION OF WORKERS-VICTORIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4544)

MELBOURNE

9.53AM, MONDAY, 04 JULY 2005

PN1

MS N THOMAS: I seek leave to appear for LG Electronics Australia Pty Limited.

PN2

MS M FOX: I appear for the National Union of Workers.

PN3

THE COMMISSIONER: Do you have any objection to Ms Thomas' appearance?

PN4

MS FOX: No, no objection.

PN5

THE COMMISSIONER: Leave is granted to appear, Ms Thomas. In relation to this application, I've received a copy of the agreement between the parties. I've also received a statutory declaration made by Mr Welsh on behalf of the company and also a statutory declaration made by Mr Pakula on behalf of the union. Those statutory declarations indicate the process by which the agreement was made and also indicate information about the terms of the agreement. There appears from the material that's been lodged, Ms Fox, some inconsistency between the statutory declaration of Mr Pakula and that of Mr Welsh in relation to some of those terms.

PN6

MS FOX: Commissioner, unfortunately I find myself in a position where having received the file this morning, I discovered that Mr Pakula's statutory declaration is actually not included. I'm pleased to hear that the Commission was forwarded a copy. Perhaps, if the Commission could enlighten me a little further as to what those inconsistencies are and perhaps I'll do my best to try to shed some light on those for you.

PN7

THE COMMISSIONER: If I can take you to paragraph 7.3 of Mr Pakula's statutory declaration and 7.4 and 7.5, they are not consistent with the terms of the statutory declaration made by Mr Welsh. The statutory declaration of Mr Welsh indicates that there are terms and conditions which have been reduced. Mr Pakula says there are none. At 7.4 of Mr Welsh's statutory declaration then sets out what those variations are and then 7.5 sets out, why on balance, the agreement meets the requirements of a no disadvantage test. Given Mr Pakula's answer to 7.3, 7.4 and 7.5 have not been completed by Mr Pakula. So there is an inconsistency in terms of those of the answers to those questions.

PN8

MS FOX: Commissioner, I see the point that you are making. Would the Commission be satisfied that the agreement as it stands, relying on the statutory declaration put by the company, passes the no disadvantage test?

PN9

THE COMMISSIONER: I'm not going to proceed to certify the agreement with two statutory declarations that contradict each other, Ms Fox. Now, if you wish to withdraw Mr Pakula's statutory declaration and given an undertaking to provide a statutory declaration which is consistent with Mr Welsh's then I'll proceed with the application.

PN10

MS FOX: Certainly, Commissioner, I'm happy to give that undertaking.

PN11

THE COMMISSIONER: Ms Thomas, I think the other issue is that this application is also been - no, the application itself was lodged within time - it was lodge without Mr Pakula's statutory declaration.

PN12

Ms Thomas is there anything that you want to say in relation to the terms and conditions and in particular in relation to the paragraphs in the statutory declaration which I've drawn Ms Fox's attention to being 7.3, 7.4 and 7.5.

PN13

MS THOMAS: Nothing more than is contained in the statutory declaration, Commissioner. We've gone into some detail in paragraph 7.4 and 7.5 and unless you have any questions.

PN14

THE COMMISSIONER: The answers to particularly 7.4 and 7.5 are quite detailed in terms of what has been put there and I've taken those matters into account in terms of my examination of this agreement.

PN15

MS THOMAS: Thank you. Commissioner, there is one thing I would like to draw your attention to. There is an issue arising from paragraph 6.2 and 6.4 of Mr Welsh's affidavit. I would submit, it's a technical issue, but it's there nonetheless. Paragraph 6.2 of Mr Welsh's statutory declaration refers to the agreement being approved by a valid majority on 31 May. Paragraph 6.4 at the bottom of the page, so one page over from paragraph 6.2 at the bottom of the page refers to employees being given a copy of the agreement on 18 May. That appears not to satisfy the requirement of the Act, that at least 14 days be given to employees.

PN16

The company since discovering this on Friday, has sought to address this discrepancy and the two employees covered by the agreement confirmed this morning that they do approve the agreement. Those two employees are the same employees who approved the agreement on 31 May. I would submit that that satisfies the requirement of the Act in section 170LJ(2) and of LJ(3)(b) that at least 14 days be given to employees before they give their approval.

PN17

THE COMMISSIONER: You're saying that the date on which it should be approved, no longer should be 31 May. Is that what you're saying?

PN18

MS THOMAS: Yes, it was approved on 31 May. However, it's been - - -

PN19

THE COMMISSIONER: That wasn't 14 days so it's subsequently been approved again.

PN20

MS THOMAS: Yes, to give the Commission some comfort that the requirements of the Act have been met. In any event, I would submit that the Commission has the power to waive any error, defect or irregularity in this respect under
section 111(1)(q) of the Act.

PN21

THE COMMISSIONER: I don't know if I'd be happy to do that but I'm happy to accept an undertaking from you that subsequent to 31 May the employees were given a further opportunity to approve the agreement and they did do so.

PN22

MS THOMAS: If the Commission requires we can file a statutory declaration to that effect.

PN23

THE COMMISSIONER: If you could do that, yes that would assist me. Thanks very much, Ms Thomas. Is there anything further you want to say at this stage, Ms Fox.

PN24

MS FOX: I've nothing further to add, Commissioner.

PN25

THE COMMISSIONER: Subject to me receiving a statutory declaration from Mr Pakula which is consistent with the statutory declaration of Mr Welsh and receiving a statutory declaration from the company to indicate that the employees concerned were given the opportunity to approve this agreement more than
14 days after they received it, then on the basis of the actual contents of the agreement itself, I'm satisfied that the statutory requirements are met.

PN26

Provided those further statutory declarations are lodged then I will certify the agreement with a date of effect of 4 July, noting that the nominal expiry date is 28 February 2008. I'll give you until the end of the week to lodge those documents.

<ADJOURNED INDEFINITELY [10.02AM]