Australian Sugar Milling Association, Queensland, Union of Employers v The Australian Workers’ Union of Employees, Queensland & Ors [2003] QIRC 79 (2003) 173 QGIG 355

30 May, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 355 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 153 – application for approval of certified agreement Australian Sugar Milling Association, Queensland, Union of Employers AND The Australian Workers’ Union of Employees, Queensland and Others (No. CA116 of 2003) 2002 BUNDABERG SUGAR LTD (MORETON MILL) ENTERPRISE BARGAINING – CERTIFIED AGREEMENT No. 5 COMMISSIONER BLADES 14 May 2003 Certified Agreement – Agreement expired before Agreement came into operation – Opportunity given to argue – Amendment to nominal expiry date sought to be made – New ballot – Held procedure fatally flawed – Application further adjourned. DECISION -- 1 of 2 -- 356 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 May, 2003 Application is made for the certification of the 2002 Bundaberg Sugar Ltd (Moreton Mill) Enterprise Bargaining – Certified Agreement No 5 (the Agreement). Under clause 1.6 of the Agreement, it is provided that the Agreement will operate from 1 April 2002 until 31 March 2003. The Agreement was filed in the Commission on 2 April 2003. When the matter was first before the Commission on 29 April it was pointed out to the parties that in its present form, the Agreement probably could not be certified because the nominal expiry date passed before the Agreement commenced. The parties were referred to my decision in Australian Red Cross Blood Service – Queensland Enterprise Bargaining Certified Agreement 1 2000 where I held that s. 156(1)(e) of the Industrial Relations Act 1999 (the Act) commands the Commission to refuse to certify if the nominal expiry date is after the date the Agreement will come into operation. Given the opportunity by way of an adjournment to argue the point I had raised, the applicant went away and on 2 May 2003, the employees met and voted to change the nominal expiry date to 19 May 2003. It is now submitted that because the amendment is purely administrative, the Agreement can and should be certified. The other parties to the Agreement support those submissions and seek certification. It is my view that the procedure adopted is fatally flawed. I do not intend to canvas my previous decision. What I am now being asked to do is to amend the nominal expiry date in the Agreement sought to be certified and to treat the defect as purely administrative. I do not believe the defect is purely administrative. It is jurisdictional. The Act specifically prohibits the certification in the circumstances as existed in that Agreement. It is not a technical or non-consequential amendment that is sought to be made. There is no authority in the Act for the amendment, certainly none to be found in s. 169 because the document sought to be amended is not a certified agreement. The application before the Commission should be withdrawn. The document should be sent out to the employees with the nominal expiry date changed, a vote taken and a new application made in respect to that document after it has been re-signed. Under the terms of s. 158, I consider that I have grounds to refuse to certify the Agreement. In case there is something that can be done, which I doubt, under that section to enable the Commission to certify the Agreement, the application will be adjourned to 10.00 a.m. on Thursday 22 May 2003. B.J. BLADES, Commissioner. Hearing Details 2003 15 and 29 April 14 May Released: 14 May 2003 Appearances: Mr P. Warren, Australian Sugar Milling Association, Queensland Union, of Employers, for Bundaberg Sugar Ltd, Moreton Mill. Mr J. Sharpe, for The Australian Workers’ Union of Employees, Queensland. Ms P. Rogers, for The Electrical Trades Union of Employees of Australia, Queensland Branch. Mr E. Moorhead, for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. -- 2 of 2 --