AG2008/1535, Transcript of Proceedings [2008] AIRCTrans 841 (24 December 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19537-1

COMMISSIONER THATCHER

AG2008/1535

cl.16A(1)(a) Sch.8 - Application to extend the expiry date of preserved collective State agreement by person bound

Application by Nestle Australia Ltd & National Union of Workers-New South Wales Branch
(AG2008/1535)





Sydney

4.27PM, WEDNESDAY, 10 DECEMBER 2008

Reserved for Decision

PN1

MR J HART: If the Commission pleases, I appear for Nestle Australia Limited.

PN2

THE COMMISSIONER: Thank you, Mr Hart.

PN3

MS J DOLAN: If the Commission pleases, I appear for the NEW.

PN4

THE COMMISSIONER: Thank you, Ms Dolan. Yes, Mr Hart?

PN5

MR HART: Thank you, Commissioner. Commissioner we have two separate applications today that have been filed in relation to the Nestle Purina Pet Care Blaney State Enterprise Agreement 2006-2008. One application is to extend the agreement for an additional three years until 31 December 2011 and the other application is to vary the agreement set out in the filed draft order before you. Both applications are made pursuant to clause 16A of Schedule 8 of the Workplace Relations Act 1996, and in relation to that the company submits that genuine agreement has been reached by all parties covered by the agreement to extend and vary that agreement in the terms sought.

PN6

We rely on the filed statutory declarations of Mr Shaun Hill which set out the process followed to ensure that all employees were given the opportunity to consider and decide whether to agree to the proposed extension and also to the proposed variations, and we also rely on the statement for holding support of the applications which have been signed both by the Blaney factory manager and by the New South Wales Branch Secretary of the NUW. In relation to both applications, neither party has engaged in or threatened to organise or engage in industrial action, nor has either party applied for a secret ballot. In relation to the application to vary the agreement, the agreement as varied would not result on balance in a reduction in the overall terms and conditions of employment of the employees bound by the agreement when that’s compared to the appropriate state award.

PN7

And just for the Commissions convenience, the main aim of the variation is actually to pass on agreed wage increases over the life of the agreement. Subject to any questions the Commission may have, that’s the companies submissions.

PN8

THE COMMISSIONER: Yes. Mr Hart, just have a look at clause 16A.

PN9

MR HART: Yes.

PN10

THE COMMISSIONER: Have you got your Act there?

PN11

MR HART: Yes, I do.

PN12

THE COMMISSIONER: All right.

PN13

If the Commission extends the nominal expiry date of the agreement, the extended date cannot be more than three years after the date on which the order is made.

PN14

MR HART: Yes.

PN15

THE COMMISSIONER: Now, if we are making an order as from today - - -

PN16

MR HART: All right, your Honour, I see.

PN17

THE COMMISSIONER: So, we have 10 December '08 plus 3 is 9 December '11.

PN18

MR HART: I see the problem the Commissions alluding to.

PN19

THE COMMISSIONER: Do you want to amend your application?

PN20

MR HART: Yes, I might - if you don’t mind Commissioner, I might just confer with my colleagues.

PN21

THE COMMISSIONER: Yes, sure.

PN22

MR HART: Commissioner, would it be possible for the Commission to make an order that would come into effect on 31 December? Even if the order were to be agreed upon today, we would probably like to preserve the nominal expiry date where it is, and I think we would have the support of the union with that if the Commission was able to do so.

PN23

THE COMMISSIONER: It is the date of the order. I could not make an order today - - -

PN24

MR HART: Yes.

PN25

THE COMMISSIONER: - - - for something - are you saying you would like me to put this in abeyance and consider making an order on 31 December. Is that what you are saying?

PN26

MR HART: If possible, yes, Commissioner.

PN27

THE COMMISSIONER: Well, I would not make an order today - - -

PN28

MR HART: Yes.

PN29

THE COMMISSIONER: - - - I would just adjourn and reserve my decision I say - - -

PN30

MR HART: Sure.

PN31

THE COMMISSIONER: with a request to make an order on the 31 December.

PN32

MR HART: The company would appreciate that, Commissioner.

PN33

THE COMMISSIONER: Probably, the order is best made on 1 January, isn’t it?

PN34

MR HART: Yes.

PN35

THE COMMISSIONER: All right, yes thank you. Yes, Ms Dolan.

PN36

MS DOLAN: Commissioner, we agree with the submissions made by the applicant and we would be happy for the order to be held off to be made on 31st or 1 January, if that pleases the Commission.

PN37

THE COMMISSIONER: I guess I will just reserve my decision then. I will not be issuing a decision probably, unless you want it in writing, but I will reserve my decision and issue my decision later - make my order later. Thank you very much.

PN38

MR HART: Thank you, Commissioner.

PN39

MS DOLAN: Thank you, Commissioner.

<ADJOURNED ACCORDINGLY [4.32 PM]