AG2006/3941, Transcript of Proceedings [2006] AIRCTrans 614 (11 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14698-1

COMMISSIONER RICHARDS

AG2006/3941

APPLICATION BY ORFORD REFRIGERATION PTY LTD AND AFMEPKIU
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/3941)

BRISBANE

2.59PM, WEDNESDAY, 29 MARCH 2006

PN1

MR S PAWLOWSKI: I am from the QCCI on behalf of Orford Refrigeration Pty Ltd in matter number AG2006/3941.

PN2

MR E MOORHEAD: I appear on behalf of the AFMEPKIU.

PN3

THE COMMISSIONER: Okay. Thanks, Mr Moorhead. It wouldn't normally be my custom to bring an agreement of this particular nature on for hearing, other than in the process of listing it, it has come to my attention that there might possibly be a dispute as to whether or not one of the alleged parties actually made the agreement and as such, whether it is in fact the party. There are consequential issues that flow from that but I suppose at first instance it might be best if we just deal with that particular issue and clarify - - -

PN4

MR MOORHEAD: Well maybe it's best if I start.

PN5

THE COMMISSIONER: Thanks Mr Moorhead.

PN6

MR MOORHEAD: Commissioner, the AMWU has refused to sign the Orford Refrigeration Certified Agreement 2006. Our particular concern is clause 15 of the agreement which provides a mechanism for suspension without pay of employees but - - -

PN7

THE COMMISSIONER: Yes there are a number of interesting novelties about that clause that I have noted but yes, go ahead.

PN8

MR MOORHEAD: What we say is that despite the union's refusal to sign it, the requirements of section 170LT have been met and when a similar situation was dealt with in the past - if I could just hand up a decision of Hamilton DP in Pampas Victoria.

PN9

In that decision his Honour considered a similar situation where the CEPU had refused to sign and in essence the Deputy President found that the requirement of - though the rules may not have been met in requiring the agreement to be signed, the requirements of the Act had been met and certified the agreement accordingly and we - with the CEPU as a party. So we say the statutory requirements of the Act have been met in terms of the Orford Refrigeration Certified Agreement as before you.

PN10

THE COMMISSIONER: Yes thank you. Well, so far as you rightly state, that the rules may require a - for the purpose of an application to be made pursuant to the rules, that certain numbers of signed agreements be provided that that is a rule that is not reflective of a statutory requirement for the purpose of certification in my view. Whilst I lack the requisite signed copies of the agreement pursuant to the rules, I would nonetheless employ rule - on the basis of the submissions of Mr Moorhead employ rule 6. Yes. It was 6 or 9. It's rule 6 and forego or waive the requirements of the rules in respect of this particular application. Mr Pawlowski, do you have anything to add given Mr Moorhead's submissions?

PN11

MR PAWLOWSKI: No Commissioner. I concur that the rules have been met. That it was always the intention of the parties and the union to be in agreement. In fact, if the Commission likes I could hand up a copy of the notices of intention to make a certified agreement which indicate that.

PN12

THE COMMISSIONER: Well I'm not sure. That's not contested in the - - -

PN13

MR PAWLOWSKI: I don't think that's contested.

PN14

MR MOORHEAD: No Commissioner.

PN15

THE COMMISSIONER: Yes. So no issue arises as to whether or not the AMWU did or did not make the agreement because the submission is that it did make the agreement.

PN16

MR PAWLOWSKI: We concur that they are listed as parties to it. They were parties to the making of the agreement. They always indicated their opposition to that particular clause and to the employees who were aware of it. All the employees - the vote took place, and I think it is just a philosophical position by the union which does not detract from the fact that they were part of the negotiations and are listed as parties and can be, I believe, parties without signing it. The agreement has been signed by three members of the consultative committee including the delegate. If that makes any - - -

PN17

THE COMMISSIONER: Thanks, Mr Pawlowski and in addition to the decision of re Pampas Pastry, I would refer the parties to the Full Bench decision in ….. presiding member Acton SDP and it was an appeal on a decision of Kaufman SDP if I recall. But that said, are there any submissions that are required, made in relation to the substance of the application of the agreement itself?

PN18

MR PAWLOWSKI: We believe as stated in the affidavits, may it please the Commission, that the agreement meets the no disadvantage test, that all due process that were required have been followed. Indeed the affidavits go to some length to point out the varied and many meetings, consultations, negotiations.

PN19

THE COMMISSIONER: ….. paragraph 6.5, they certainly do.

PN20

MR PAWLOWSKI: I believe that the exercise was conducted in the most open manner that is totally beyond reproach and I believe the union agrees with that. May it please the Commission.

PN21

MR MOORHEAD: We support the certification, Commissioner.

PN22

THE COMMISSIONER: Thank you. Look, in the Commission's view, subject to the decision taken earlier to waive the requirements of rule 6 in respect of the provision of signed copies of the agreement to the Commission for the purposes of an application, the Commission is of the view that other than that the agreement meets the requirements of the rules of the Commission and has been made consistent with the requirements of the Act. And as a consequence, the Commission will certify the agreement pursuant to clause 6.1 of the same to operate from today's date until 31 October 2008. We are adjourned.

<ADJOURNED INDEFINITELY [3.06PM]