AG2005/6493, Transcript of Proceedings [2005] AIRCTrans 2314 (8 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13285-1
132861

COMMISSIONER GRAINGER

AG2005/6493 AG2005/6446

APPLICATION BY BI-LO PTY LTD & AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.170MG - Application to terminate agreement (valid majority)
(AG2005/6493)

APPLICATION BY COLES SUPERMARKETS AUSTRALIA PTY LTD T/AS COLES SUPERMARKETS & BI-LO PTY LTD AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/6446)

MELBOURNE

3.29PM, TUESDAY, 25 OCTOBER 2005

PN1

MR G BIRD: I appear on behalf of the AMIEU.

PN2

MR A YOANNIDIS: I appear on behalf of Coles Supermarkets and Bi-Lo. With me today is MR MURRAYLEE.

PN3

THE COMMISSIONER: Yes fine. Thank you very much. Which of you gentlemen is taking me through the agreement? You are, Mr Yoannidis? Good. Thank you very much.

PN4

MR YOANNIDIS: Yes thank you, your Honour.

PN5

THE COMMISSIONER: Just Commissioner.

PN6

MR YOANNIDIS: Thank you, Commissioner. This is an agreement to certify the Coles and Bi-Lo AMIEU Victoria Agreement 2005.

PN7

THE COMMISSIONER: Were you going to deal with the application to terminate first or were you going to deal with the certification issue first?

PN8

MR YOANNIDIS: Up to you, Commissioner.

PN9

THE COMMISSIONER: I think, let's do the application to terminate first.

PN10

MR YOANNIDIS: Okay.

PN11

THE COMMISSIONER: Okay?

PN12

MR YOANNIDIS: Yes. Commissioner, the agreement that we will be certifying later covers two companies, Coles and Bi-Lo and formerly they both had two separate enterprise agreements which were in substantially the same terms. There were some terms that were similar. In the most recent negotiations we reached agreement to consolidate those into one agreement. The former two agreements had different expiry dates. The Coles Agreement has passed its nominal expiry date but the Bi-Lo Agreement has not.

PN13

It's nominal expiry date is 12 May 2006 so on that basis, Commissioner, an application has been made to terminate that agreement given that its nominal expiry date will be next year and upon certification of the new agreement there will be an industrial instrument in place which will cover both businesses. The ballot to determine a valid majority for the termination of the Bi-Lo Agreement was done at the same time as the ballot for certification of the new agreement, your Honour, it was on the same ballot, Commissioner. It was on the same form and an overwhelming majority of employees who voted in Bi-Lo voted in favour of terminating the existing agreement and voted in favour of certifying the new agreement.

PN14

THE COMMISSIONER: Good.

PN15

MR YOANNIDIS: If it pleases the Commission.

PN16

THE COMMISSIONER: Yes thank you very much. Yes.

PN17

MR YOANNIDIS: That agreement be terminated.

PN18

THE COMMISSIONER: Yes thank you. Mr Bird, you are happy with that?

PN19

MR BIRD: I am happy with that.

PN20

THE COMMISSIONER: Yes. Fine. Thank you. Yes well subject to certification of the agreement in the next matter I issue the order in the form sought from the parties. It will come into force from 25 October 2005 terminating the Bi-Lo Pty Ltd Victoria and Australasian Meat Industry Employees Union Agreement 2003. Agreement 824291. Good. Thanks. Yes, Mr Yoannidis, then we were going to do the certification. I think there is a statutory declaration been placed on the file. Yes and you were also going to tell me something about clause 7 on dispute resolution, Mr Yoannidis.

PN21

MR YOANNIDIS: Yes.

PN22

THE COMMISSIONER: Yes. All right. Good. Well if you will run me through things. Thanks very much.

PN23

MR YOANNIDIS: Yes in relation to the two items that you issued directions on, Commissioner, the first item was in relation to the date that Mr Murraylee signed the statutory declaration. I sent in some correspondence to the Commission. The date that that was signed was 6 October. It was a oversight and we apologise to the Commission for that oversight but just an inadvertent error, Commissioner given we know the date. I have got an electronic diary which confirms I had an appointment on that day.

PN24

THE COMMISSIONER: Yes.

PN25

MR YOANNIDIS: Mr Murraylee is here.

PN26

THE COMMISSIONER: Yes.

PN27

MR YOANNIDIS: We can give that in evidence to the Commission if necessary.

PN28

THE COMMISSIONER: Yes I don't want to swear him in but Mr Murraylee, you confirm that is correct, do you?

PN29

MR MURRAYLEE: I can confirm that.

PN30

THE COMMISSIONER: Yes. Thank you very much. Yes, you have no objection to that evidence do you, Mr Bird?

PN31

MR BIRD: No sir.

PN32

THE COMMISSIONER: Yes fine. Thank you very much. Yes, Mr Yoannidis?

PN33

MR YOANNIDIS: It was sent on the day before we filed so and on the following morning I went and saw Mr Bird, got their statutory declaration, then came here and filed it for certification, Commissioner.

PN34

THE COMMISSIONER: Yes thank you.

PN35

MR YOANNIDIS: In relation to clause 7 the dispute resolution procedure the extent of the power that is conferred on the Commission in relation to that clause, Commissioner, is that - well the way that it has been played in the past and we would be prepared to provide an undertaking to this effect is that the Commission has power to conciliate in the first instance and if unable to resolve the matter the Commission has power to arbitrate.

PN36

THE COMMISSIONER: Yes.

PN37

MR YOANNIDIS: Can provide that undertaking if necessary, Commissioner.

PN38

THE COMMISSIONER: Yes thank you, yes but I just want, that will be on the file and I just want it to be understood that that is the case. Mr Bird, you are happy with that?

PN39

MR BIRD: Yes the union is happy with that.

PN40

THE COMMISSIONER: Yes thank you. Yes, Mr Yoannidis, if you can just run me through the rest of the issues to do with the agreement thanks.

PN41

MR YOANNIDIS: Yes Commissioner. The agreement is an application pursuant to section 170LJ. It covers Coles and Bi-Lo and the Victorian Branch of the AMIEU. All of the relevant information should be on file, Commissioner, along with the statutory declarations.

PN42

THE COMMISSIONER: Yes. Nothing you wish to add to that beyond what you have said with regard to dispute resolution.

PN43

MR YOANNIDIS: No Commissioner unless there are any specific items you wish me to take you to or address?

PN44

THE COMMISSIONER: No. I can assure you, you would have been warned beforehand. You have addressed what I was concerned about. Yes thank you.

PN45

MR YOANNIDIS: Thank you, Commissioner.

PN46

THE COMMISSIONER: Yes thank you.

PN47

MR YOANNIDIS: We submit it to be certified.

PN48

THE COMMISSIONER: Yes Mr Bird?

PN49

MR BIRD: Yes the union is in agreement with the submission put by Coles Bi-Lo.

PN50

THE COMMISSIONER: Yes. Thank you. I am satisfied on the basis of the written submissions and the submissions made before me today that the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd AMIEU Victoria Agreement 2005 meets all the relevant statutory requirements for certification. I note the term of the agreement at clause 1.3.1 will be from certification to 30 August 2008 so it doesn't exceed three years. There is an appropriate dispute resolution procedure at clause 7 which I am happy has been clarified by the information provided by Mr Yoannidis today.

PN51

The agreement appears on balance to provide advantages over the award. I note that there are some disadvantages which are contained in clause 2.5 and clause 3.1.1(f), clause 3.1.2(b), (c), (d) but these appear to be well outweighed by the advantages. I refer to amongst others in clause 2.6.1(f), (l) and (g), clause 3.1.2(c), clause 3.5.7, clause 4(a), (b) and (c), clause 4.3, 4.6, 5.1, 5.3, 5.5, 5.6.4(d), 5.6.5, 5.6.6(a), 5.6.6(c), 6.5, 6.7.3 and appendix A and accordingly I do certify this agreement today, 25 October 2005. I thank the parties for their submissions and now adjourn.

<ADJOURNED INDEFINITELY [3.37PM]