AG2005/3602, Transcript of Proceedings [2005] AIRCTrans 1741 (19 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12431-1

SENIOR DEPUTY PRESIDENT DUNCAN

AG2005/3602
AG2005/4973
AG2005/4975
AG2005/4977
AG2005/4978
AG2005/4980
AG2005/4981
AG2005/5004
AG2005/5005
AG2005/5006
AG2005/5066
AG2005/5067
AG2005/5224

APPLICATION BY AUSTRALIAN COLLEGE OF ENGLISH & ORS & INDEPENDENT EDUCATION UNION OF AUSTRALIA
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3602)

SYDNEY

10.03AM, MONDAY, 08 AUGUST 2005

PN1

MR J HANRAHAN: I seek leave to appear on behalf of the 12 colleges making applications for certification of new agreements under section 170LJ.

PN2

MS V HERON: I appear for the Independent Education Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thanks, Ms Heron. You have no objection to Mr Hanrahan's appearance?

PN4

MS HERON: No.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted.

PN6

MR HANRAHAN: Yes, your Honour. If I may give two preliminary matters. Firstly, agreement number 2005/5005 we seek to withdraw that agreement number.

PN7

THE SENIOR DEPUTY PRESIDENT: I am sorry. I didn't quite get the number.

PN8

MR HANRAHAN: Sorry, your Honour. It's AG2005/5005.

PN9

THE SENIOR DEPUTY PRESIDENT: 5005, yes.

PN10

MR HANRAHAN: It is dealt within in agreement number 2005/5224.

PN11

THE SENIOR DEPUTY PRESIDENT: So 5005 is withdrawn.

PN12

MR HANRAHAN: Is withdrawn. If the Commission pleases.

PN13

THE SENIOR DEPUTY PRESIDENT: Good.

PN14

MR HANRAHAN: And your Honour, seven of the agreements before the Commission today were unfortunately filed outside the 21 day limit. Those agreement numbers are 3602, 4973, 4981, 5004, 5006, 5067, and 5224. Your Honour, we request that the Commission exercise its powers pursuant to section 111(1)(r) of the Act and extend the time of the filing of these agreements.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. What in general terms was the explanation?

PN16

MR HANRAHAN: On the basis that firstly the agreements – there were administrative delays unfortunately with filing the agreements but on the basis that the agreements – my instructions are that they were unanimously voted in favour of by all the employees and I have instructions from each of those seven colleges that the workforce has not changed its composition since the time of the vote as at the time these agreements will be certified.

PN17

THE SENIOR DEPUTY PRESIDENT: Fine, Mr Hanrahan. That's quite enough for me so I will make the orders that are necessary in each of those matters that you have listed in order to enable then to proceed as part of the certification process this morning.

PN18

MR HANRAHAN: Your Honour, if it may be dealt with more expediently I was proposing that we make one general submission relying upon all the 12 applications for certification and the statutory declarations of each of the colleges. And on that basis request that all the agreements be certified with the exception of one college which needs to be dealt with in individual submissions.

PN19

THE SENIOR DEPUTY PRESIDENT: Separately. All right then. Certainly that is preferable to my listening to both of you going through each one.

PN20

MR HANRAHAN: Thank you, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Go ahead, Mr Hanrahan.

PN22

MR HANRAHAN: Yes. In respect of EF International which is agreement number 2005/5006, at paragraph 6.4 of the statutory declaration it incorrectly states that the agreement was circulated on 10 June 2005. Unfortunately the effect of this error is that on the face of the statutory declaration it appears that the teachers did not receive the 14 day required time period. I have been instructed that that was actually incorrect and that was circulated on 27 May by that college. I have two statutory declarations to tender before the Commission, one of Mr Greg Hynde who is the principal executive officer of that college and another of Ms Imogen Crane who is a director of studies of that college who actually circulated the agreements amongst the teachers. If I may tender those, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

EXHIBIT #EF1 STATUTORY DECLARATION OF GREG HYNDE, DATED 22/07/2005
EXHIBIT #EF2 STATUTORY DECLARATION OF IMOGEN CRANE, DATED 22/07/2005

PN24

THE SENIOR DEPUTY PRESIDENT: And I note on the basis of those declarations and what has been said by Mr Hanrahan this morning that it is an error in 6.4 of the statutory declaration in the relevant matter AG2005/5006 and circulation was in fact effected on 17 May which is well outside the minimum required by the Act.

PN25

MR HANRAHAN: Those are our submissions, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Very well. Ms Heron?

PN27

MS HERON: Nothing further to add.

PN28

THE SENIOR DEPUTY PRESIDENT: You do support the application?

PN29

MS HERON: Yes, I do.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Heron. I will deal with them now. These are applications by various providers of English language studies and the Independent Eduction Union of Australia for certification of agreements made pursuant to section 170LJ of the Workplace Relations Act 1996. The agreements have various names which I do not intend to go through at this point but will rely upon the various files which have already been noted in proceedings this morning subject to the orders that are made accepting some which were applications which were filed outside the time allowed by the Act. On the basis of the statutory declarations filed in the matters and on the submissions made at the hearing I am satisfied the agreements relate to a distinct part of a single business.

PN31

The IEUA has at least one member employed in the businesses to which the agreement supplies and it is entitled to represent the industrial interests of such members. All employers are constitutional corporations for the purposes of the Act. The various agreements were genuinely approved by a valid majority of people whose employment would be subject to the agreements. The communication and explanation of the terms of the various agreements was appropriate and met the requirements of the Act having regard to each person's particular needs. Subject to what I have already said, the application to the Commission was made no later than 21 days after the approvals referred to above were given.

PN32

The agreement satisfy the requirements of the no disadvantage test expressed in section 170XA of the Act. The agreements each contain appropriate dispute settling procedures and the agreements all specify a nominal expiry date, which I think is a common one, of 31 December 2007 which is not more than three years after the agreements come into operation. I can find no reasons in section 170LU of the Act requiring the Commission to refuse to certify any of the agreements. The applications are accordingly granted with the effect from today 8 August 2005. Formal certification will issue in due course. I note that in a majority of the agreements, the agreement terminates bargaining periods which have been commenced by the IEUA some considerable time ago.

PN33

I rely on the records which really exist to have a note of that made in the appropriate place. In view of the way in which these matters were handled, and in view of the need for a record to be available I direct the transcript be prepared in this instance. I adjourn all matters before me at the moment indefinitely. I adjourn the Commission.

<ADJOURNED INDEFINITELY [10.12AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #EF1 STATUTORY DECLARATION OF GREG HYNDE, DATED 22/07/2005 PN23
EXHIBIT #EF2 STATUTORY DECLARATION OF IMOGEN CRANE, DATED 22/07/2005 PN23