AG2008/1121, Transcript of Proceedings [2008] AIRCTrans 410 (4 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18836-1

COMMISSIONER LARKIN

AG2008/1121

cl.2A(1)(b) Sch. 7 - Appl’n for an order to vary pre-reform cert. agt.
Application by Media, Entertainment and Arts Alliance & Constant Security Services
(AG2008/1121)

SYDNEY

2.41PM, MONDAY, 21 JULY 2008

PN1

MS C MONTGOMERY: Thank you. If the Commission pleases, I appear on behalf of the Media Entertainment and Arts Alliance.

PN2

THE COMMISSIONER: Thank you, Ms Montgomery. You would be ware that we have received correspondence from the respondent - the employer, to the agreement?

PN3

MS MONTGOMERY: Yes, I am, Commissioner.

PN4

THE COMMISSIONER: Advising that they are unable to attend due to work commitments but they consent to the application to vary and to extend the agreement. Ms Montgomery, you have had some words with my associate in relation to the actual application.

PN5

MS MONTGOMERY: I have, Commissioner.

PN6

THE COMMISSIONER: All right. Would you like to give your submissions, please.

PN7

MS MONTGOMERY: Yes, thank you, Commissioner. You have before you a joint application and a marked up copy of the agreement by the Media Entertainment and Arts Alliance and Constant Security Services Pty Ltd that seeks to both extend and vary the CSS Permanent and Casual Employees Enterprise Agreement 2004.

PN8

Commissioner, just going back to my discussion with your associate, if I might just amend my application, part of my application proposed that a variation occur to the annual leave clause. I have sought instructions my assistant federal secretary and confirmed with the employer if the intention was for any part of that clause to be varied and both have advised that the clause will not be varied. So I’m amending my application to withdraw the proposed variation to the annual leave clause.

PN9

THE COMMISSIONER: And that’s point 4 of your draft order, in a sense.

PN10

MS MONTGOMERY: That is. That’s correct, Commissioner. Thank you. Also your associate spoke with me in relation to a reference at clause 4.2, 1 November 2010. As it is my first time for many years before the Commission, I made that amendment to the agreement with a mindset of bringing it - - -

PN11

THE COMMISSIONER: Up to date.

PN12

MS MONTGOMERY: Yes, up to date.

PN13

THE COMMISSIONER: Because November 2007 has gone.

PN14

MS MONTGOMERY: That’s absolutely right.

PN15

THE COMMISSIONER: But that amendment that is in accordance with the employer’s consent.

PN16

MS MONTGOMERY: That’s absolutely right.

PN17

THE COMMISSIONER: Yes. We noticed that one and that appeared to us to be quite logical in a sense.

PN18

MS MONTGOMERY: Thank you, Commissioner. And that being all of my amendments I’ll continue with my submission.

PN19

THE COMMISSIONER: Yes, please.

PN20

MS MONTGOMERY: Commissioner, this application is made under clause 2A(1)(b) of schedule 7 of the Act. The parties to the agreement are the Media Entertainment and Arts Alliance and Constant Security Services Pty Ltd. As you have advised, you have received confirmation from Constant Security Services that, although they are unable to attend the hearing, they do confirm their consent to the application.

PN21

Commissioner, we’re also able to advise that none of the parties have after 14 February 2008 organised or engaged in or threatened to organise or engage in industrial action in relation to another party to the agreement or applied for a protected action ballot under section 451 of the Act in relation to the protected industrial action.

PN22

The Act requires the Commission to be satisfied that all parties bound by the agreement genuinely agree. Commissioner, as you know, an agreement formerly made under section 170LJ of the Act required agreement of a valid majority of employees to agree to it. Commissioner, the statutory declaration you have before you - and if I could - I should have done this at the beginning of the submission - Commissioner, I note that in my documents forwarded to the Commission, I had left the date of the statutory declaration.

PN23

THE COMMISSIONER: I haven’t used it. You filed a new statutory declaration on 21 July.

PN24

MS MONTGOMERY: Yes, that’s right.

PN25

THE COMMISSIONER: Yes, and that’s been - that’s your amended statutory declaration.

PN26

MS MONTGOMERY: Yes. Thank you, Commissioner.

PN27

THE COMMISSIONER: Yes, I have that.

PN28

MS MONTGOMERY: Commissioner, the statutory declaration you have before you of Mark Reinhardt, assistant federal secretary of the Alliance, attests the following procedures occurred: the employees were each given a copy of the proposed varied agreement on 3 June 2008 to consider for a period of 14 days prior to the vote. The vote was conducted on 18 June 2008. A valid majority voted in favour of the agreement. A total of 22 employees voted in favour of the agreement. The total of employees who abstained was zero.

PN29

At clause 16 of the agreement, there is a dispute settling procedure. Commissioner, we believe the procedural requirements have been met, both the Act and the Rules and we request the Commission vary and extend the agreement in the terms sought by the parties on or after 21 July 2008, if the Commission pleases.

PN30

THE COMMISSIONER: Are you seeking that the agreement be extended to 5 March 2011?

PN31

MS MONTGOMERY: Yes, we are, Commissioner.

PN32

THE COMMISSIONER: Yes. Well, that’s less than the three years required by the transitional arrangements of schedule 7, 2A(3). And the amendments to the agreement really, in a sense, are to update the rates?

PN33

MS MONTGOMERY: That’s correct.

PN34

THE COMMISSIONER: To make a change in relation to the employer name and also to vary the provision in clause 4.2 of the agreement in relation to negotiations between the consultative committee. Then of course your other application is to extend the expiry date of the agreement to 5 March 2011.

PN35

MS MONTGOMERY: That’s correct, Commissioner.

PN36

THE COMMISSIONER: All right. Thank you, Ms Montgomery, for your submissions.

PN37

Having regard to the fact that the application before me is by consent, also having regard to the material that has been filed and the submissions made I am satisfied that the requirements of the Act in relation to the variation of the agreement that is know the Media Entertainment and Arts Alliance and Constant - I’ll start that again, excuse me.

PN38

The agreement known as the CSS Permanent and Casual Employees Enterprise Agreement 2004 should be varied in the manner sought in the application and as amended and the submissions made by Ms Montgomery and of course the agreement will be called the 2008 agreement as part of the amendment. The nominal expiry date of the agreement is to be 5 March 2007[sic], which is no more than the three years required by the legislation. All other requirements for the variation, in my view, have been met and an order will issue in accordance with this decision.

PN39

If there is nothing more - you’re to file a new agreement with my associate, Ms Montgomery, I understand.

PN40

MS MONTGOMERY: That’s correct.

PN41

THE COMMISSIONER: In the correct format. All right, if there’s nothing further, thank you for your attendance. The Commission stands adjourned.

<ADJOURNED ACCORDINGLY [2.50PM]