C2005/1630, Transcript of Proceedings [2005] AIRCTrans 189 (28 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10039

VICE PRESIDENT LAWLER

C2005/1630

s.99 - notification of an industrial dispute

Hans Continental Smallgoods Pty Ltd
and
Australasian Meat Industry Employees Union, The
(C2005/1630)
OSI International Foods (Australia) Pty Ltd and the Australasian Meat Industry Employees Union, New South Wales Branch Smallgoods Manufacturing Agreement 2001

SYDNEY

10.00AM, THURSDAY, 13 JANUARY 2005

PN1

MR M RODGERS: I seek leave to appear on behalf of Hans Continental Smallgoods Pty Ltd.

PN2

MS P FERNANDEZ: I appear on behalf of the Australasian Meat Industry Employees Union Commonwealth Branch and with me is the State Secretary, MR C DONZON.

PN3

THE VICE PRESIDENT: Does either party have any objection if I go immediately into conciliation in relation to this matter?

PN4

MS FERNANDEZ: We have a jurisdictional argument to present.

PN5

THE VICE PRESIDENT: I understand what it is.

PN6

MS FERNANDEZ: Yes, okay.

PN7

THE VICE PRESIDENT: I take it the company only has employees in New South Wales? Does the company have employees in any other State?

PN8

MR RODGERS: Yes, Commissioner, we do.

PN9

THE VICE PRESIDENT: You do, all right.

PN10

MR RODGERS: We have - - -

PN11

MS FERNANDEZ: They are not covered by this agreement, nor by the underpinning award.

PN12

MR RODGERS: Not covered by this agreement.

PN13

THE VICE PRESIDENT: Well, this agreement is dead, isn't it?

PN14

MS FERNANDEZ: It is, that's correct.

PN15

THE VICE PRESIDENT: I mean, it has such force as it may have of the general law, according to the Chief Justice in Electrolux, but the reality is that it has no prospect for life as a certified agreement, there having been no appeal lodged in relation to it.

PN16

MS FERNANDEZ: Not in this jurisdiction, no. That's right.

PN17

THE VICE PRESIDENT: So Ms Fernandez, I understand what your jurisdictional objection is. Do you mind if there is some conciliation?

PN18

MS FERNANDEZ: No, we have no objections as to that. We have no objections in participating at any time in any conciliation. However, due to the jurisdictional argument, we are not bound to by going into this issue. But we will participate in whatever conciliation. We are here to try and resolve this matter, obviously.

PN19

THE VICE PRESIDENT: Okay, fine. I will adjourn into conciliation.

<SHORT ADJOURNMENT [10.01AM]
<RESUMED [10.56AM]

PN20

THE VICE PRESIDENT: This is a resumption of matter number C2005/1630, following a period of conciliation. I think it is appropriate that I place a few things on the record and give the parties an opportunity to add anything that they wish to that.

PN21

First of all, it's clear to me that both sides come here in good faith today. The fact of the matter is that an agreement was made pursuant to section 170LJ of the Workplace Relations Act, being the Hans Continental Smallgoods Proprietary Limited and Australasian Meat Industry Employees Union New South Wales Branch Enterprise Agreement 2004. Application was made for certification of that agreement, the application for certification came before Senior Deputy President Hamberger who, by a decision dated 13 December 2004 (PR954266)m refused to certify the agreement on the basis that it contained a number of clauses which were about matters that did not pertain to the relationship between Hans Continental Smallgoods in its capacity as employer and the company's employees and their capacity as employees.

PN22

His decision was undoubtedly correct, at least insofar as clause 6.4, union fee deductions, was concerned. So, the parties found themselves in a situation where they had made an agreement which, in the words of Gleeson CJ in Electrolux takes effect according to the general law, but the mutual intention of the parties to have that agreement certified under Part VIB of the Federal Act has been frustrated.

PN23

The company wishes to resolve the problem by the making of a fresh section 170LW agreement, being an agreement that omits the offending clauses, and to commit to the obligations contained in the offending clauses in a site agreement, presumably in the form of a deed. In other words, the company's position is that it wishes to obtain an agreement that preserves as much of the earlier agreement as possible but one which can be successfully certified in the Federal Commission, and to preserve the balance of its obligations under the earlier agreement through the site agreement that I have referred to.

PN24

The union, on the other hand, is opposed to that way of proceeding and perceives that the better solution is to seek to have the existing agreement registered as an enterprise agreement in the State Industrial Relations Commission or, alternatively, to seek an enterprise award in the State Industrial Relations Commission that simply gives effect to the existing agreement certification which was refused.

PN25

The union has rational reasons for preferring its option. The company has rational reasons for preferring its option. It has become apparent that it is unlikely that those differences are going to be resolved in conciliation today and, in a sense, the dispute is hypothetical. I use the word dispute there in a very broad way, because both the company, the union and the employees of the company have been giving effect to the existing agreement, notwithstanding the refusal of certification in relation to that agreement, and the present dispute notification would appear to be motivated by a concern about the potentiality for problems in the future.

PN26

Of course, the existing position is that the predecessor certified agreement continues to operate, notwithstanding the passage of its normal expiry date, until such time as it is terminated by the Commission, subject to issues of invalidity arising from the inclusion of clauses about non-pertaining matters in the earlier agreement, which itself is subject to the operation of, or questions about the operation of, the validating legislation passed by the Federal Parliament.

PN27

I think it desirable to note and to commend the parties on their position in relation to honouring and upholding the agreement that was made and for which certification was refused. That position is commendable and it doesn't change merely because the union seeks to make some application in the State Commission, an application which, as I have indicated, is one that seeks to further vindicate the agreement. Whether or not the State Commission takes the view that it's appropriate to deal with this matter will, no doubt, be a matter for argument between the parties before the State Commission and it's inappropriate for me to express any view one way or the other on that matter.

PN28

Whilst there is clearly an argument to be had in relation to the Commission's jurisdiction to deal with the present dispute notification, and the union has flagged a jurisdictional objection, it seems to me that the better course is to adjourn the matter generally and to deal with any jurisdictional objection if and when war breaks out - I withdraw that - if and when peace breaks down. And therefore, what I propose to do is to adjourn this matter generally with leave to both parties to re-list it on short notice. Short notice being 24 hours notice.

PN29

Is there anything you would wish to add for the purposes of the record, Ms Fernandez?

PN30

MS FERNANDEZ: No, Vice President, just to thank you for your assistance in this matter.

PN31

THE VICE PRESIDENT: Thank you. Mr Livingstone, anything you would wish to place on the record?

PN32

MR RODGERS: No, Vice President. I prefer our grievance be .....

PN33

THE VICE PRESIDENT: Yes. And Ms Fernandez, you didn't take issue with anything that I said in a factual sense?

PN34

MS FERNANDEZ: No, your Honour, I didn't.

PN35

THE VICE PRESIDENT: Good. Fine. Thank you. My associate will arrange for a transcript of these remarks to be ordered and sent to the parties and the Commission is adjourned.

<ADJOURNED INDEFINITELY [11.06AM]