AG2005/2726, Transcript of Proceedings [2005] AIRCTrans 953 (21 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11201-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2726

APPLICATION BY DETMOLD PACKAGING PTY LTD & AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-SOUTH AUSTRALIAN BRANCH AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/2726)

ADELAIDE

10.04AM, MONDAY, 11 APRIL 2005

PN1

MS C ROGERS: I am from Detmold Packaging.

PN2

MR B JOHNSTON: I appear for the Electrical Trades Union.

PN3

MR J GRESTY: I appear on behalf of the Australian Manufacturing Union and with me is MR M BRINE.

PN4

MR S DELANEY: I appear on behalf of Detmold Packaging Proprietary Limited.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I have read the agreement and I have read the statutory declarations. I am satisfied the statutory declarations detailed the process followed in reaching this agreement and I am equally satisfied that on the basis of that material the process was consistent with that set out in section 170LJ. I do have a number of questions about the agreement itself. So do all parties have a copy of that agreement?

PN6

MR JOHNSTON: Yes, sir.

PN7

MR GRESTY: Yes, sir.

PN8

THE SENIOR DEPUTY PRESIDENT: I address the questions to the employer now. Which of the two employee representatives has to be the recipient of the questions? Yes, thank you, Mr Delaney. Mr Delaney, can I just take you to the definitions clause. With respect to that last sentence or paragraph in that clause, should I understand that the agreement has application to any function that might be affected by a redundancy?

PN9

MR DELANEY: Are you referring particularly to the last clause, Area Affected, is that - - -

PN10

THE SENIOR DEPUTY PRESIDENT: That is correct.

PN11

MR DELANEY: Yes. The machine department or business unit affected by redundancy. The intention of that definition is that redundancies can occur at a machine level within a part of the business without affecting the overall site.

PN12

THE SENIOR DEPUTY PRESIDENT: I see. I can then take the parties to the clause headed, Term of Agreement and Review. It appears there has been a change made to this particular date. It may simply be that the date of 31 August 2004 was the nominal expiry date of the earlier agreement. Is that the case?

PN13

MR DELANEY: That is the case, yes, that is an error.

PN14

THE SENIOR DEPUTY PRESIDENT: And should I understand then,
Mr Delaney, that the parties agree that once the date of 1 September 2006 is achieved, the issue of redundancy might be the subject of separate negotiations, possibly even protected industrial action, notwithstanding the possibility that another agreement would still be in operation relative to the conditions of employment.

PN15

MR DELANEY: That is the case, that's correct.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I then take the parties to the agreements and dispute settlements procedure in appendix G. I understand from the last of the dot points of that flow chart that a matter not able to be resolved after step four will be referred to the Commission, may be referred to the Commission, for conciliation and/or arbitration. I understand that the intention of the parties is that conciliation would proceed arbitration and that in the event of a grievance or a dispute over the operation of the redundancy provisions, do the parties expect that the operations of that third dot point mean that the actual redundancy would not be put into effect pending the resolution of the dispute? It actually becomes a very significant issue.

PN17

MR DELANEY: Yes, it is a very significant issue. The intention of linking the redundancy agreement unambiguously to the dispute resolutions procedure is that ultimately parties agree that in the event of a dispute we would go to the umpire and abide by the decision. I apologise, I hadn't actually thought through that.

PN18

THE SENIOR DEPUTY PRESIDENT: The umpire runs out of jurisdiction once the employees are not longer employees.

PN19

MR DELANEY: All right, employees. Correct. And I hadn't thought about that eventuality.

PN20

THE SENIOR DEPUTY PRESIDENT: You see I didn't draft it so I can't tell you what was in the minds of the parties.

PN21

MR DELANEY: Yes. We hadn't envisaged a dispute over the redundancy in that case but you are quite right, it is a very pertinent point. I would actually have to take some advice on that, I apologise.

PN22

THE SENIOR DEPUTY PRESIDENT: If you are going to take advice on that question, then can I suggest that you probably need to confer with, certainly, the two unions to ensure that there is a common view being - - -

PN23

MR DELANEY: Sure.

PN24

THE SENIOR DEPUTY PRESIDENT: Would a week be an appropriate time for it, Mr Delaney?

PN25

MR DELANEY: Yes, that would be fine.

PN26

THE SENIOR DEPUTY PRESIDENT: And once you have taken your advice and hopefully have a common position, I can simply be advised of that position by way of written advice which indicates the agreement of all the parties, in which case that document will be retained on the Commission's file. Mr Johnston are you happy with that approach?

PN27

MR JOHNSTON: Yes, sir, I am.

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Gresty?

PN29

MR GRESTY: Yes, sir.

PN30

THE SENIOR DEPUTY PRESIDENT: All right. We can indicate to the parties that that issue, accepted I am satisfied that the agreement meets the requirements of the Act necessary for certification, if I am advised of a common position about that issue, it appears to me to be fairly fundamental in terms of the operation of the agreement, within the next week, I would propose to certify the agreement from the date on which I received that advice. If, on the other hand, the parties advised me that they don't have an agreed position or there is the need for a further hearing, I will list the matter to see what we can do about resolving the issue. Now, any certificate that I send out in this matter would detail the various clauses about which I sought clarification. It would not detail the responses that I have been provided with or the parties intend to provide me with because those will be retained on the Commission's file and then recorded on the transcript. Mr Delaney, are you happy with that approach?

PN31

MR DELANEY: Yes, absolutely.

PN32

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [10.48AM]