AG2005/3731, Transcript of Proceedings [2005] AIRCTrans 2474 (8 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13511-1

SENIOR DEPUTY PRESIDENT MARSH

AG2005/3731

APPLICATION BY GLIDEROL INTERNATIONAL PTY LTD & THE AUSTRALIAN WORKERS’ UNION
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3731)

SYDNEY

10.06AM, TUESDAY, 22 NOVEMBER 2005

PN1

MS R DOCKING: I appear on behalf of the Australian Industry Group for the member company Gliderol International Pty Ltd.

PN2

MR R O'NEILL: I represent the Australian Workers' Union and its members.

PN3

THE SENIOR DEPUTY PRESIDENT: I understand this matter is out of time, also?

PN4

MS DOCKING: Seven days out of time, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, seven days on my math.

PN6

MS DOCKING: The agreement and the statutory declaration was sent to the AWU on 12 October by the Australian Industry Group. There were a number of phone calls placed to the union's office, without a response back to us, so that was some of the delay. There has also been further discussions between the company and the union to remedy some of the deficiencies that were in the agreement when it was voted upon.

PN7

THE SENIOR DEPUTY PRESIDENT: They've been overcome?

PN8

MS DOCKING: Yes. At this stage, there's agreement to remedy those.

PN9

THE SENIOR DEPUTY PRESIDENT: The composition of the workforce wouldn't have changed in that seven day period such that the vote could have changed and it wouldn't be a valid majority?

PN10

MS DOCKING: Those are my instructions, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr O'Neill?

PN12

MR O'NEILL: Your Honour, some of the time that was lost in this process was due to two clauses in the agreement, clause 14 and clause 28. Clause 14 relates to income protection. On viewing it, in our legal department, it was found that there had actually been a possible preference issue involved, whereby the employees that were not members of the Australian Workers' Union were not eligible for income protection. We had to deal with the AIG and the company to see if we could resolve that, that's part of the reason why we took this extra bit of time. Also, clause 28, a picnic day was missing off the list of public holidays, as well. We sought to have that resolved and we believe we are in a position now where we have agreed on that.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, but you're not seeking to change the agreement, are you?

PN14

MR O'NEILL: No, it will be exchange of letters.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR O'NEILL: The agreement will be the same, as I understand, that's what we've agreed to. There'll be an exchange of letters and that will be attached to the agreement. Thank you.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, well, I will exercise my discretion under section 111(1)(r) of the Act and extend the 21 day time limit prescribed in section 170LM(2)(a) of the Act, particularly on the basis that the composition of the workforce couldn't have been altered to change the vote in favour of a valid majority voting in favour of certification of the agreement. Yes, Ms Docking?

PN18

MS DOCKING: Thank you. The terms of the agreement were reached between the company and the Australian Workers' Union on behalf of the employee's covered under the Metals Engineering and Associated Industries Award. The parties have prepared statutory declarations, which we believe meet all the requirements of the Act, the rules, and the regulations of this Commission. We further submit that the requirements of 170LJ and LT have been met. We submit that the agreement does not disadvantage the employees covered by it.

PN19

As mentioned by my friend, the company has entered into an additional exchange of letters, which is to proceed further to remedy to the public holiday as well as the income protection clauses. On 5 October, a valid - - -

PN20

THE SENIOR DEPUTY PRESIDENT: To the extent that the income protection insurance clause would prevent certification, would an undertaking be given with respect to the terms of the letter, that could be placed on the file?

PN21

MS DOCKING: Yes, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, Mr O'Neil?

PN23

MR O'NEIL: That's my understanding, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Can that letter be forwarded at an appropriate time?

PN25

MS DOCKING: At this stage, the letter is in a draft form, but as soon as the finalised version is finished I will provide a copy to the Commission.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN27

MS DOCKING: A valid majority of the employees approved the agreement on
5 October. Access to the agreement and an explanation of the terms of the agreement occurred in accordance with 170LR and was appropriate, having regard to the circumstances of the employees covered by this agreement. The agreement itself contains a dispute settlement procedure at clause 9, which empowers the Commission to conciliate and a limited arbitration. The period of operation of the agreement is set out in clause 4, where it is stated the agreement will expire on
30 June 2007.

PN28

The parties further submit that the agreement when read with the accompanying undertaking of the letter complies with the requirements of section 170LI, as interpreted by the High Court. Therefore, we request that the Commission certify the agreement in the terms sought, if the Commission pleases.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN30

MR O'NEILL: Your Honour, the Australian Workers' Union, representing its members, also seeks the approval of this certified agreement today, thank you.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, all right. On the basis of the undertakings given, and on the basis of the statutory declarations that have been filed in accordance with the rules of the Commission, having regard to the terms of the agreement, and the submissions made, I am satisfied that it is appropriate to certify the agreement in the name of Gilderol International Pty Ltd Smithfield Enterprise Agreement 2005. It will come into force from 22 November 2005 and remain in force until 30 June 2007. I will sign the certificate giving effect to the agreement. I'd like to get that letter in due course, particularly with respect to the income protection.

<ADJOURNED INDEFINITELY [10.11AM]