AG2008/94, Transcript of Proceedings [2008] AIRCTrans 767 (1 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19326-1

COMMISSIONER LEWIN

AG2008/94

cl.2A(1)(b) Schedule. 7 - Application for an order to vary pre-reform certified agreement

National Union of Workers
and
Fuchs Lubricants (Australasia) Pty Ltd
(AG2008/94)
Fuchs Lubricants (Australasia) Pty Ltd - National Union of Workers Agreement 2005

(ODN AG2005/6378)
[AG843347 Print PR963732]]




Melbourne

11.05AM, FRIDAY, 14 NOVEMBER 2008

PN1

MS K TRAN: If the Commission pleases, I appear on behalf of the National Union of Workers.

PN2

THE COMMISSIONER: Yes, Ms Tran, you may proceed.

PN3

MS TRAN: Thank you, Commissioner. Today’s application is to extend and vary the Fuchs Lubricants (Australasia) Pty Ltd and National Union of Workers Agreement 2005.

PN4

Commissioner, your Chambers would have received the NUW’s application which includes a number of attachments. This is form 49A, which is the application for an order to vary the agreement; form 49B, which is an application for the extension of the agreement; Rules 55 and 55A which is the written statements signed by both parties; and also a statutory declaration signed by our secretary. Also, a copy of the varied agreement and draft order outlining all the variations sought should be in your possession.

PN5

THE COMMISSIONER: They are.

PN6

MS TRAN: Commissioner, the NUW relies on these documents submitted to outline that all the statutory requirements have been made. I can confirm that all parties bound by this agreement have genuinely agreed to the extension and variation and that the valid majority of employees have voted in favour of the agreement.

PN7

THE COMMISSIONER: Some of the documents are unsigned that I have on the file.

PN8

MS TRAN: All right.

PN9

THE COMMISSIONER: Mr Kernough has not signed any of the documents that have been filed.

PN10

MS TRAN: All right, Commissioner, just give me a moment. I’ll just check. Commissioner, which document?

PN11

THE COMMISSIONER: Where’s the form 49A? Perhaps if I show you the documents that I’m referring to.

PN12

MS TRAN: Thank you for that, Commissioner. I apologise for that. I have here with me the original copies of the signed documents.

PN13

THE COMMISSIONER: All right. Could you tender those, please, now?

PN14

MS TRAN: Yes.

PN15

THE COMMISSIONER: I need, for the record, to formally waive the rules to receive the application. Ms Tran, you will appreciate that if you file an application in the Registry under a Regulation and Rule of the Commission that requires that an application be made by a person - it’s not made unless an authorised officer actually signs the document.

PN16

MS TRAN: I understand.

PN17

THE COMMISSIONER: So that in fact when the documents go across the Registry desk, even though they have been stamped and received, there is actually no application of that form. But I intend to waive the rules both in relation to the filing of the application and service in this matter.

PN18

MS TRAN: All right. Thank you.

PN19

THE COMMISSIONER: And to receive the signed applications. So you may proceed.

PN20

MS TRAN: Thank you, Commissioner. The extension sought is until 30 June 2011 which does not exceed three years from today’s date. The variation also provides for pay increases in each year of the agreement and does not disadvantage any employees covered by it. We can also confirm that no industrial action has been threatened or taken in relation to this agreement under section 451 of the Act.

PN21

Subject to any questions you might have, Commissioner, we seek that the orders be made on the terms sought, if the Commission pleases.

PN22

THE COMMISSIONER: Thank you. Matters that I want to raise with you relate to the form of the order. I just draw your attention to the draft order file. Perhaps it’s easiest to commence by looking at item (b)(2) of the draft order on page 1. You will notice there that there is variation of the agreement in clause 4 to replace the clause with a next txt?

PN23

MS TRAN: Yes.

PN24

THE COMMISSIONER: And you’ll see there then in the second line there is reference to when the agreement as varied will operate. And it says:

PN25

From the date of the order -

PN26

MS TRAN: From the date of the order, yes.

PN27

THE COMMISSIONER: I think we’ll call that “the variation order”.

PN28

MS TRAN: All right, yes, that’s ...

PN29

THE COMMISSIONER: And I think it’s appropriate throughout the order where there are references to “the order”, and clearly in all cases the intention is that those references aren’t to the variation order sought, that those references be to the variation order.

PN30

MS TRAN: Yes, very well. We can do that.

PN31

THE COMMISSIONER: Because there is an order of certification already extant and also there could be confusion because given the format there won’t be a reference to “this order”.

PN32

MS TRAN: Yes, I understand.

PN33

THE COMMISSIONER: So what I propose to do is to make those changes wherever reference is made to “the order of the Commission” so that it becomes “the variation order of the Commission”. And I propose to insert a definition into the order which will be:

PN34

For the purposes of the agreement, variation order needs the order of the Commission dated -

PN35

And it will be today’s date and we’ll have its citation within the Commission’s publication system included in brackets. Do you understand the consequence of that?

PN36

MS TRAN: Yes, that’s understandable.

PN37

THE COMMISSIONER: Are you happy with that? It seems to make things clearer to me.

PN38

MS TRAN: Yes, it does. I understand.

PN39

THE COMMISSIONER: I have had an opportunity to consider the variation order but I haven’t read the whole of the consolidation. I notice that the document which has been provided has tracking within it. I don’t know whether it’s appropriate for the Commission to actually publish a document that’s comprised of a whole lot of tracking changes.

PN40

MS TRAN: No, that wasn’t the intention, Commissioner. I have provided two copies, one clean, one tracked.

PN41

THE COMMISSIONER: I’m sorry. All right.

PN42

MS TRAN: Yes. It’s just in case you wanted to have a closer look at the - - -

PN43

THE COMMISSIONER: No. Well, I appreciate that I thank you for that. I understand the intention. The document that I have been reading is the tracked one so, very well, if there is in fact a full consolidation of the agreement as varied.

PN44

Other than that, yes, I’m satisfied that the statutory requirements for an order varying the terms of the - I’m sorry, an order extending the life of the agreement and varying its terms have been met and I will issue a variation order which will extend - I’ll issue an order, rather, which will extend and vary the terms of the agreement as sought in accordance with the draft order submitted by the applicant and as amended or with - the foreshadowed amendments, rather, that have been mentioned this morning and which are consented to by the applicant. The order will come into force on and from 14 November 2008.

PN45

I’ll give some consideration to whether or not that order needs to be give a life but obviously its life will be no longer than the life of the variations sought.

PN46

MS TRAN: Yes, Commissioner.

PN47

THE COMMISSIONER: It may not be necessary. I will publish my reasons for this decision and the order extending and varying the terms of the agreement in due course and provide the applicant and the respondent, Fuchs Lubricants (Australasia) Pty Ltd with copies of those instruments by post. Thank you.

<ADJOURNED ACCORDINGLY [11.14AM]