AG2006/3876, Transcript of Proceedings [2006] AIRCTrans 775 (30 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15052-1

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2006/3876

APPLICATION BY NIKE AUSTRALIA PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2006/3876)

MELBOURNE

10.27AM, WEDNESDAY, 17 MAY 2006
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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PN1

THE SENIOR DEPUTY PRESIDENT: This application is unusual in that the application was filed under cover of a letter dated 23 March 2006 which was the Thursday before the Act was repealed on Monday 27th. The covering letter which was on the letterhead of Australian Workplace Strategies and over the signature of Mr Gerard Nelson had attached to it a form R29 standard application form which indicated that the applicant, Nike Australia Pty Ltd was seeking certification of an attached agreement.

PN2

Of course no such agreement was attached and that was explained in the letter indicating that the filing would take place electronically. There was a necessity for the application to be made by midnight on the, before midnight of 26 March because the Act was repealed by the Work Choices legislation as from that time. Accordingly the application was made before the agreement was in fact made. The agreement was made when the valid majority approved its making, which was on 26 March.

PN3

It seems to me that despite the unusual features of this application, there nevertheless was a valid application for certification of an agreement. The only other thing that I can think of that might have been done and it certainly wouldn't have been popular, would have been a request to have the registry open on Sunday 26 March to receive the application. If there be a defect, it's a defect of form not of substance and I'm satisfied that the matter is properly before the Commission. It is certainly the desire of Nike to have the agreement certified.

PN4

If I'm wrong well Nike runs the risk that the agreement may be challenged in another place at another time but it is not my desire to stand in the way of Nike and its employees to have this agreement certified. It seems to me that the agreement was made on the 26th. The application was really made in anticipation and I'm prepared to exercise any powers I have to waive any irregularities if there be any. I'm not sure that there are any. I am also satisfied having heard evidence and submissions this morning that the no disadvantage test has been met.

PN5

If I'm wrong about that, I'm satisfied that certifying the agreement is not contrary to the public interest test and accordingly under the provisions of section 170LT(3) the agreement is taken to pass the no disadvantage test. Accordingly the agreement will be certified and it will operate from today's date. Adjourn the Commission please.

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