AG2006/3949, Transcript of Proceedings [2006] AIRCTrans 649 (18 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14801-1

DEPUTY PRESIDENT HAMPTON

AG2006/3949

APPLICATION BY SITEHOST PTY LTD T/AS HILTON ADELAIDE & LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION-SOUTH AUSTRALIAN BRANCH AND ANOTHER
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/3949)

ADELAIDE

11.19AM, FRIDAY, 07 APRIL 2006

PN1

MS N BYRON: I am of the Australian Mines and Metals Association appearing for Hilton Adelaide, I also have with me MS B MULA of Hilton Adelaide.

PN2

MR B RANKINE: I appear for the LHMU and also the ASU and with me I have MS H HOLLINSHEAD who is an LHMU delegate from the Hilton.

PN3

THE DEPUTY PRESIDENT: Good. Yes. Thank you, Mr Rankine. Yes, perhaps before we proceed I should indicate for the record that I have raised a matter with the parties prior to proceedings in order to facilitate the hearing of the application. Who is going to lead off? Ms Byron? Mr Rankine, yes.

PN4

MR RANKINE: Thank you sir. Prior to the proceedings, as you have just mentioned, we had a discussion about the format of the agreement, particularly clause 14, hotel ….. relations. We understand that that particular clause, 14(b), needs some work before it's acceptable for the Commission and that it may be appropriate under 170LV(b) for the parties to try and rectify that and take that back to the employees to make the agreement certifiable.

PN5

If the Commission pleases, I would leave my submissions in terms of the rest of the agreement until such time as it is brought back before the Commission and if the Hilton doesn't oppose that approach then I would suggest that if the Commission pleases then that would be the approach we would take.

PN6

THE DEPUTY PRESIDENT: Very well. Mr Rankine, I should indicate that, as you would expect, I have read the balance of the agreement. I have also read the statutory declarations. On face value, putting aside the issue that you have alluded to, in my view there would be a certifiable instrument. What you would need to make sure though is in terms of the process that you have alluded to, is that you ensure that you meet the notice requirements of the Act and bring it back. I think in the circumstances also it would be appropriate if you filed some fresh statutory declarations.

PN7

At least going to the new process and that would also facilitate me hearing the matter expeditiously when that is subsequently filed. My understanding is, Mr Rankine, what you will be doing is you will be seeking leave to amend the present application rather than lodging a new application?

PN8

MR RANKINE: Correct. Thank you.

PN9

THE DEPUTY PRESIDENT: Very well. Ms Byron?

PN10

MS BYRON: Thank you, your Honour. Yes we support the submissions of the LHMU.

PN11

THE DEPUTY PRESIDENT: Very well. All right. Yes, look what I propose to do then, is to adjourn this application to permit the parties to follow the course of action that has been alluded to by Mr Rankine and supported by Ms Byron. My reasons for doing that are as follows. On face value there is a difficulty with the certification of the agreement, in particular as a result of clause 14(b).

PN12

In my view that provision of the agreement contains issues which are often described as Electrolux issues which would prevent certification of the agreement. In that context I would indicate that my view of the transitional provisions of the Work Choices Act, to use the shorthand title, is that an application in this jurisdiction which has been filed prior to 27 March 2006 must be dealt with in accordance with the law as it stood prior to that time.

PN13

In that context I believe the course of action which has been alluded to, is and was open to the parties and to the Commission to deal with the matter and I will indicate that providing the parties follow the process which is necessary in these circumstances under the Act, and that the agreement in a revised form providing it deals with the Electrolux issue, has the endorsement of a valid majority of employees, then in my view the circumstances are such that the Commission would be in a position to grant leave to amend the application and to certify it forthwith.

PN14

In that context the application will be adjourned. The parties should attend to this process as soon as possible and also file, together with the new agreement which leave to amend the application is to be sought, should also file one or more statutory declarations just confirming the process that you have gone to, to get the employee endorsement for the new agreement. Very well. Unless there is anything further? I will adjourn it on that basis.

<ADJOURNED INDEFINITELY [11.24AM]