Australian Sugar Milling Association, Queensland, Union of Employers v The Australian Workers’ Union of Employees, Queensland & Ors [2004] QIRC 155 (2004) 177 QGIG 37

3 September, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 37 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 156 – application to certify agreement Australian Sugar Milling Association, Queensland, Union of Employers AND The Australian Workers’ Union of Employees, Queensland and Others (No. CA337 of 2004) MOSSMAN CENTRAL MILL COMPANY LTD – CERTIFIED AGREEMENT COMMISSIONER ASBURY 19 August 2004 Application for certification of agreement – Contention that agreement does not pass the no-disadvantage test – Contention that if agreement does not pass the no-disadvantage test that the reduction in entitlements is not contrary to the public interest – Flexible working hours arrangement – Contention that agreement is part of a reasonable strategy to deal with a short term crisis in and to help with revival of a business – Case law in relation to no- disadvantage test – Case law in relation to public interest – Finding that agreement does not pass the no-disadvantage test – Refusal to certify agreement in current form – Public interest considerations do not justify reductions in award entitlements as a result of flexible working hours over the full term of the Agreement – Refusal to certify agreement in current form –Suggestion as to undertaking to make agreement capable of certification – Opportunity given to employer to reassess issues raised by the Commission – Opportunity given to Union refusing to sign agreement to become a party to the agreement. DECISION 1. Overview This is an application by the Mossman Central Mill Company Limited (MCM) pursuant to s. 156 of the Industrial Relations Act 1999 (the Act) for the certification the Mossman Central Mill Company Limited – Certified Agreement (CA337 of 2004) (the Agreement). The application for certification in the required form (Form 40) was filed in the Industrial Registry on 16 July 2004. The application states that the Agreement is made between MCM, Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU), and The Electrical Trades Union of Employees of Australia, Queensland Branch (ETU). A reference to The Australian Workers Union of Employees, Queensland (AWU) has been deleted from the application and from clause 1.2 of the Agreement by ruling a line through the name of that Union. A reference to the AWU is still contained in clause 1.3.1. At proceedings on 27 July 2004 Ms Inglis for the ETU advised the Commission that members of that Union had voted for the Agreement and were not disadvantaged by it. Accordingly the ETU supported the certification of the Agreement and left the matter for the determination of the Commission. Mr Moorehead for the AMEPKU advised the Commission that the certification of the Agreement was supported but that the AMEPKU would be loathe to see an agreement certified without the Commission being assured that it met the statutory requirements. At proceedings in Mossman on 9 and 10 August, Mr Trask for the AMEPKU advised that the application for certification was supported. The application for certification was opposed by the AWU on a number of grounds. As a result of an ex tempore decision made on 9 August 2004 certain evidence sought to be adduced by the AWU was struck out on the grounds of admissibility and public policy. The remaining ground of opposition to certification of the Agreement advanced by the AWU was that it did not pass the “no-disadvantage test” in Chapter 6 Part 1 Division 3 of the Act. The hearing was conducted on the basis that the AWU bore the onus of establishing that the Agreement did not pass the no-disadvantage test, and that if this was established, MCM bore the onus of establishing that the Agreement should be certified regardless, on the basis of s. 160(4) – reduction in terms and conditions of employment is not against the public interest. The AWU called evidence from: • David John Raymond GROESSLER – Organiser; and • Mark STENNER – 2nd Class Water Attendant, Mossman Central Mill Company Limited. Evidence was called for Mossman Central Mill Company Limited from: • Christopher Paul HOARE – Operations Manager, Mossman Central Mill Company Limited; • John Alan JOHNSTONE – General Manager, Mossman Central Mill Company Limited; and • Francis Arthur McMAHON – Business Consultant, McMahon and Associates. 2. Relevant Legislative Provisions The Commission must certify an agreement if, and must not certify an agreement unless, it is satisfied that the requirements of s. 156 are met. Of relevance in this case is the requirement in s. 156(h) that the Commission be satisfied that the Agreement passes the no-disadvantage test. That test is set out in s. 160 of the Act which relevantly provides: “160 When an agreement passes the no-disadvantage test (1) An agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their employment conditions. (2) An agreement disadvantages employees only if the commission considers it would result in a reduction in the employees’ entitlements or protections. (3) Subsection (2) applies subject to section 161 and 162. (4) Subsection (2) does not apply if the commission considers that, in the context of the employment conditions considered as a whole, the reduction is not against the public interest. (5) If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the agreement with the employees’ entitlements or protections. -- 1 of 5 -- 38 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 September, 2004 (6) In this section – “entitlements or protections” means the entitlements or protections under – (a) a relevant award, designated award, industrial agreement or order under chapter 5, part 5; or (b) chapter 2, including as reviewed by a general ruling of the full bench.”. It is well established that the no-disadvantage test is to be applied on a global basis. Provided that any reductions in employment conditions are offset by improvements, so that over all employees do not suffer a disadvantage, an agreement will pass the test: Duckinwilla Farms Certified Agreement (2004) 176 QGIG 160; Coco’s Fresh Food Markets – Certified Agreement (2001) 168 QGIG 70; Logan Day Surgery Pty Ltd – Certified Agreement (1999) 162 QGIG 120; John Goss Electrical Pty Ltd Certified Agreement 158 QGIG 218. In applying the test the Commission must consider whether it would result in a reduction to the entitlements or protections of employees under a relevant award; designated award; industrial instrument or order under Chapter 5, Part 5 of the Act (wages and employment conditions for apprentices and trainees) or Chapter 2 of the Act (general employment conditions) including as reviewed by a general ruling of a Full Bench. Section 160(4) of the Act provides a basis for the Commission to certify an agreement notwithstanding the fact that it does reduce entitlements or protections of employees, if in the context of the employment conditions considered as a whole, the reduction is not against the public interest. An example is given in s. 160(4) to the effect that a reduction in employment conditions will not be against the public interest when the Agreement which reduces those conditions is part of a short term strategy to deal with a short term crisis in a business or to help with its revival. As Blades C noted in Logan Day Surgery Pty Ltd – Certified Agreement, s. 160(4) provides that an exception can be made to the requirement that an agreement pass the no- disadvantage test, if the conditions set out in that section as illustrated by the example, apply. In Coco’s Fresh Food Markets – Certified Agreement (2001) (supra) Blades C noted that the term “public interest” is not defined in the Act, and cited the decision of the High Court in O’Sullivan v Farrer (1989) 168 CLR 168 at 216, where it was held that: “Indeed the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only insofar as the subject matter and the scope and purpose of the statutory enactments may enable…” Commissioner Blades went on to state that the Objects of the Act set out in s. 3 were applicable to consideration of the public interest, in the certification of an agreement. In particular those Objects requiring the support of economic prosperity and social justice for all employers and employees; promoting the effective and efficient operation of enterprises and industries; and ensuring that wages and conditions of employment provide fair standards in relation to living standards prevailing in the community, were seen as relevant. In Alinta Gas – ASU Certified Agreement 2001 (Print PR948246) Lacy SDP of the Australian Industrial Relations Commission reviewed cases dealing with public interest considerations and the general principles that had been isolated. Some of the relevant principles are that: • Ascertainment of the public interest will depend on a balancing of interests including competing public interests and will be a question of fact and degree: Re Queensland Electricity Commission & Ors Ex Parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5 per Mason CJ, Wilson and Dawson JJ. • An application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality of great importance in the public interest, and it is the whole of the circumstances which must be weighed: Re Australian Insurance Employees Union; Ex Parte Academy Insurance Pty Ltd & Ors (1988) 76 ALR 466 at 467 per Dawson J. • The concept of public interest does not embrace considerations which are essentially derivative from the individual interest of the employer or employees, although an individual interest may have an overlapping public interest dimension, such as an interest in freedom of association or from certain kinds of discrimination: Re Joy Manufacturing Co Pty Ltd (Print T1133] at [34] and [38] per Munro J; see also Re Mount Thorley Operations Pty Ltd (Print R7850) at [39] per Boulton J. • The public interest may not be served where a particular employer can achieve a commercial advantage over competitors by paying wages that in truth, turn out to be less than those set for the greater community: Coco’s Fresh Food Markets – Certified Agreement (2001) (supra) per Blades C. • Public interest is not a narrowly or arbitrarily defined concept, but encompasses matters of community concern as assessed by the Commission: Re AWA between SI and JA (Print PR911178) at [27] per Munro J. 3. The Issues for Determination In this case the relevant award for the purpose of determining whether the Agreement passes the no-disadvantage test, is the Sugar Industry Award – State (the Award). The principal issues for determination are: 1. whether the Agreement passes the no-disadvantage test; and 2. if the Agreement does not pass the no-disadvantage test, whether in the context of the employment conditions considered as a whole, the reduction is not against the public interest. 4. Does the Agreement Pass the No-disadvantage Test? The Agreement subject of these proceedings, at clause 2.5, provides for a system entitled “Flexible Working Hours”. It is this provision that is at the heart of the AWU’s contention that the Agreement does not pass the no-disadvantage test. The essential features of the flexible working hours arrangements provided for in the agreement are as follows: • It is a short term emergency arrangement to reduce labour costs for the life of the agreement; • All employees including seasonals may be required to work up to 88 ordinary hours per two week cycle for up to 24 weeks of the year (the crushing period) between the hours of 6.00 a.m. Monday to 8.00 a.m. Saturday; • Hours in excess of 76 hours (but less than 88 hours) in each two week cycle are treated as wages owed; are banked and taken off in the maintenance period at times agreed between the employer and the employee; • One hour is banked for each one hour of what would otherwise be overtime work; • Overtime and/or penalty rates will not apply during this spread of hours except in the following circumstances: 1. where an employee works in excess of 88 hours in a two week cycle 2. where an employee works in excess of 12 consecutive hours in a day; 3. where an employee is called out and bankable hours are not consecutive with the employee’s work hours [i.e. any callouts more than two hours before commencement time]; 4. subject to clause 2.3 [job redesign] where an employee is brought in or asked to remain after normal hours to perform work that the employee would not normally perform during the crushing season; 5. work performed on a public holiday; 6. work performed outside the spread or ordinary hours [6.00 a.m. Monday to 8.00 a.m. Saturday]. -- 2 of 5 -- 3 September, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 39 • Banked hours that cannot be taken as time off in the following maintenance season are paid out in June of the relevant financial year or at an earlier time if it becomes clear that the hours cannot be taken (e.g. in circumstances where employment is terminated for any reason); • Funds necessary to pay out banked hours will be paid by Mossman Central Mill Company Limited into a trust account, and money will be drawn down from that account at the time that banked hours are taken as time off in lieu; and • Monthly briefings will be given to Union delegates as to the status of the trust account and bank statements provided on request. There was a written explanation provided to employees in relation to the proposed account for the purpose of banking hours, which indicated that the arrangement was not a trust but a trust account (refer Exhibit 4 Attachment CH6). That explanation also advises employees that in the event of receivership or liquidation that amounts in the account will be wages owed and will rank higher than other entitlements. Correspondence to MCM’s bank which was also in evidence (refer Exhibit 4 Attachment CH7) seeks to open a bank account and makes no mention of the fact that it is to be a trust account. There is no evidence that the account opened by MCM for this purpose is a trust account. The result is that any amounts in the banked hours account in the event of receivership or liquidation, will in all probability be treated in the same way as the contents of any other bank account operated by MCM and the position of employees will only be superior to that of any other unsecured creditors, which I am sure will not include the bank. It is also relevant that clause 1.4 of the Agreement provides that notwithstanding the provisions of s. 164 of the Act – When a certified agreement is in operation – clause 2.5 (Flexible Working Hours) shall cease to operate on 1 February 2006, and will be removed from the Agreement. The flexible working hours arrangements contain some protection for employees in the sense that there are statements to the effect that it is not the intention of management to simply “use up” bankable hours for the performance of work that could be performed in ordinary hours. However, there are also numerous statements indicating that the purpose of the arrangement is to make savings on labour costs. It is clear that such savings can only arise from the fact that the Agreement reduces overtime payments to which employees would otherwise be entitled, and allows management to retain for its use and benefit, funds which would otherwise be required to be paid as wages to employees for overtime hours. It is also clear that it is in the interests of MCM to have as many employees as possible working only 8 bankable hours in each two week period, as this minimises overtime payments. Provided that MCM does not use the 8 bankable hours in a manner inconsistent with clause 2.5, there is nothing to prevent any employee working for 8 bankable hours only in any two week period. An indirect result is that the capacity of employees to earn overtime to offset the reduction in income from the flexible working hours arrangement is reduced. It was also apparent from evidence and submissions in these proceedings that the flexible working hours arrangement was implemented at least 6 weeks prior to the hearing into certification of the Agreement, from some date in May 2004, notwithstanding the fact that the arrangement is inconsistent with the terms of the Award which would otherwise be applicable to employees – namely the Sugar Industry Award – State (the Award). Mr Groessler provided detailed evidence, supported by calculations, going to what was said to be the disadvantage accruing to employees by virtue of the implementation of the flexible working hours arrangement under the Agreement. That evidence was provided in affidavit form with the calculations upon which it was based being appended to the affidavit – Exhibit 1. Mr Groessler was cross-examined in relation to those calculations. A series of calculations prepared by Mr Warren, who represented Mossman Central Mill Company Limited, was also put before the Commission during submissions. Mr Sharpe for the AWU submitted that little if any weight should be placed on the calculations submitted by Mr Warren, on the basis that they were not tendered in evidence through a witness and the author of the calculations did alert the Commission or the AWU to the fact that the calculations were to be tendered and make himself available for cross-examination. In my view, Mr Sharpe’s submission on this point is correct, and more weight should be placed on the calculations made by Mr Groessler and tendered by him in evidence. Mr Groessler’s calculations show that at the date of hearing of the application for certification of the Agreement, employees in each classification would receive reductions in earnings during the crushing seasons over which the Agreement would operate, ranging from $1,240.67 for level 2 employees to $1,435 for level 9 employees. It is also clear from Mr Groessler’s evidence that the reduction in earnings is exacerbated by the fact that the Award rates will increase by the amount of $19.00 per week from 1 September 2004 as a result of the decision of a full bench of the Commission in the State Wage Case, B724 of 2004 and B744 of 2004 released 3 August 2004. Further, Mr Groessler’s evidence shows that employees will have a further reduction in crushing season earnings, by virtue of the fact that the quantum of shift penalties they would have been entitled to under the Award will be reduced. This reduction ranges from an amount of $362.74 for level 2 employees to $380.77 for level 9 employees, and will be exacerbated by the effect of the increase to Award rates flowing from the decision in the State Wage Case. Mr Stenner’s evidence was that he would lose up to 8 hours overtime pay per fortnight under the Agreement, equating to $504.74 in wages that he would have earned under the Award. It is also relevant that there are no employees of MCM classified at level 1. Regardless of the weight put on the calculations provided by Mr Warren, it is clear from those calculations that employees will suffer a reduction in earnings from the implementation of the flexible working hours arrangement under the Agreement. I accept that submissions for Mossman Central Mill Company Limited that the reduction in overtime earnings will be offset by the fact that employees will obtain the benefit of additional time off as a result of the banked hours being utilised during the maintenance season, or be paid the balance of their banked hours if those hours cannot be taken as time off. I also accept that employees additional benefits above the Award such as an additional week of annual leave; loading on four weeks of their annual leave of 7.5% in excess of the Award standard and additional long service leave entitlements, as a result of unregistered sugar industry agreements. Those unregistered agreements are referenced in the Agreement subject of these proceedings. In this regard, clause 1.8 of the Agreement provides as follows: “1.8 Continuation of Existing Agreements All current Sugar Industry Agreements contained in the document titled “Sugar Industry Agreements with Union on a State Basis 1965 – 1984” and other local agreements are deemed to be imported into this Agreement and will apply except in so far as they may be amended by this CA, Or (sic) where such documents are inconsistent with this certified agreement.”. I do not accept Mr Sharpe’s submission that the decision of President Hall in Australian Sugar Milling Association, Queensland, Union of Employers v The Australian Workers’ Union of Employees, Queensland and Others (2002) 169 QGIG 113 provides any basis for a finding that the terms of unregistered agreements imported into certified agreements do not provide an enforceable right to employees. Rather the President held that an unregistered agreement, providing for the payment of an additional amount above a shift allowance expressed as a flat rate, recognised and adopted in a certified agreement, did not bind Unions party to the certified agreement to flat rate shift allowances. In my view these additional benefits may be taken into consideration in deciding whether the Agreement passes the no-disadvantage test, and I have done so. I do not accept the submissions of Mossman Central Mill Company Limited that only Award rates at the date of hearing should be considered. At the time the application for certification of the Agreement was being heard, a Full Bench of the Commission had handed down the decision in the State Wage Case 2004, and increases flowing from that decision had been determined to operate from 1 September 2004. To ignore that decision and its probable impact on the Award relevant to the application of the no-disadvantage test in this case would be inconsistent with the purpose of that test. Further, the Agreement provides for wage increases in PART 3 – WAGES OUTCOMES – as follows: “The Company proposes to pay any increases awarded by the QIRC in relevant Queensland Awards to employees in 2004 and 2005 years if the Directors declare a dividend for shareholders in those years.”. -- 3 of 5 -- 40 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 September, 2004 It was clear from the submissions of MCM that no wage increase would be payable under the Agreement (or otherwise) in 2004. This is also a matter that must be considered in deciding whether the Agreement passes the no-disadvantage test. After considering the calculations advanced in evidence by the AWU; the calculations tendered for MCM in submissions; the offsetting effect of the available bank of hours; and benefits to employees in excess of Award conditions with respect to annual leave accruals; leave loading and long service leave; I am of the view that the agreement will disadvantage at least some employees in relation to their employment conditions, by reducing their entitlements to overtime payments. I am also of the view that the benefits to employees under the Agreement do not offset this reduction in entitlements to a sufficient degree to enable me to be satisfied that the agreement passes the no-disadvantage test. Further, it is more probable than not that the overall disadvantage in terms of employment conditions, is greater for those seasonal employees who will not get the offsetting benefit of employment during the maintenance season. It is therefore necessary to consider whether the Agreement comes within the exception provided for in s. 160(4) of the Act, so that in the context of employment conditions as a whole, the reduction is not against the public interest. 5. Is Certification of the Agreement in the Public Interest? It was contended for Mossman Central Mill Company Limited, that if the Commission finds that the Agreement does not pass the no-disadvantage test, that there is sufficient evidence upon which the Commission could be satisfied that the reduction is not against the public interest, on the ground that the making of the Agreement is part of a reasonable strategy to deal with a short-term crisis in, or to help in the revival of, a business, consistent with the example in s. 160(4) of the Act. In my view, the submissions and evidence for MCM have not made out that the Agreement comes within this exception to the extent that I could be satisfied that it would be in the public interest to certify the Agreement in its current form. In my view at best MCM has established that it would be in the public interest for the Agreement to operate in its current form for the current crushing season only – i.e. the 2004 crushing season. My reasons for reaching this conclusion are as follows. Mr Sharpe for the AWU was critical in his submissions about the lack of evidence put before the Commission by MCM going to public interest considerations, and urged that this argument be rejected on that basis. It is true that other than some general statements on the part of Mr McMahon and Mr Johnstone about the economic impact of MCM on the local community and the disastrous impact that a closure would have on that community, there was a paucity of evidence going to community concerns and interests outside those of MCM management and shareholders. It is also true that MCM was well aware of the case to be run by the AWU, and that there was a distinct possibility of being required to establish that the exception in s. 160(4) should be made. Evidence about the broader public interest considerations required by s. 160(4) should have been put before the Commission by MCM. However, the Commission does not exist in a vacuum and can make an assessment about such matters based on its own knowledge. I am of the view that the threat of closure, much less the actual closure of MCM would be catastrophic for the local community in which MCM operates. I am also of the view that the fallout from a closure would extend well beyond the shareholders and employees to all sectors of the local community. I am also satisfied that MCM is currently facing significant financial difficulties and has taken reasonable steps to share the pain of alleviating those difficulties among all stakeholders not just employees. In my view, it is in the public interest that MCM be in a position to optimise its chances of surviving its current financial difficulties and that the Agreement is a critical part of a survival plan and revival plan. I accept that MCM required a stable low cost environment in which to re-negotiate its operating bank facility, and that the Agreement was essential to this. At best, however the evidence in this regard established that one of the conditions placed on agreement to a new operating bank facility by the bank in question, had been that MCM have a certified agreement in place. There was also evidence that the bank had required MCM to present a financial year profit and loss model to the bank which had to be no worse than cash flow neutral and to agree that it would maintain assets as best it could and not go further into debt. There is evidence that the flexible working hours arrangement will provide potential short term savings of between $200,000.00 and $300,000.00 to MCM. There is also evidence that the Agreement will provide a means by which an optimum staffing model can be achieved which will deliver significant permanent savings within two years. This longer term aspect of the Agreement was said by Mr Johnstone in his evidence, to be more important than the flexible working hours arrangement (refer Exhibit 2 paragraph 19). There is no evidence that MCM’s agreement with the bank goes to requirements in relation to the actual content of a certified agreement, or that it requires the implementation of the flexible working hours arrangements. I do accept on the evidence that is before me that the facilities agreement has been recently negotiated, and is in place until approximately March 2005, when it will be re-negotiated. I also accept that obtaining that new operating financial facility was conditional upon MCM having a certified agreement in effect. I am also of the view that it is more probable than not that the financial year profit and loss model developed by MCM for the current financial year, has the flexible working hours arrangement as a central plank, although there was no direct evidence on this point. Finally, I accept the submission advanced on behalf of MCM that in considering the reduction in employment conditions provided by the Agreement in the wider context of s. 160(4) and the public interest considerations entailed, that the component of wage rates under the Sugar Industry Award – State above those applicable under general, should be taken into account. To do so would be consistent with the Objects of the Act as set out in s. 3, particularly ensuring that wages and employment conditions provide fair standards in relation to living standards prevailing in the community. Weighing all of these factors and the competing interests of MCM, employees, their Unions, shareholders, the local community and the Queensland economy generally, I am satisfied that the Agreement should be certified. However, I remain of the view that when employment conditions are considered as a whole, that there will be a disadvantage to employees as a result of the flexible working hours arrangement. In my view the public interest considerations justify the ability for the flexible working arrangements to be implemented for the 2005 crushing season. The implementation of the flexible working hours arrangements for the 2005 crushing season will in my view constitute part of a reasonable strategy to deal with a short-term crisis in and help to revive the business of MCM. I am unable to be satisfied that it is in the public interest for the disadvantage accruing from the flexible working hours arrangements in the Agreement to operate so as to reduce employees’ entitlements for the entire duration of the Agreement – i.e. for both the 2004 and 2005 crushing seasons. Accordingly I am not prepared to certify the Agreement and I am satisfied that I have grounds to refuse to do so, for the reasons outlined above. However by virtue of s. 158(2) of the Act, I am required to give the persons who made the Agreement the opportunity to take action that may be necessary to enable me to certify it. Under s. 158(1) I may accept an undertaking from one or more of the persons who made the Agreement in relation to its operation. In this regard, should MCM be prepared to provide an undertaking in the following terms, I would be prepared to certify the Agreement: 1. On or after 1 February 2006, or on termination of employment, whichever occurs sooner, any employee covered by the Agreement is entitled to request that an accounting exercise be undertaken by MCM in respect of earnings the employee would have received during the 2005 crushing season under the Award; 2. Any employee shown to have been disadvantaged during the 2005 crushing season by the flexible working hours arrangement will be reimbursed so as to receive not less than the Award would have provided for in the 2005 crushing season; and -- 4 of 5 -- 3 September, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 41 3. In undertaking an accounting exercise, for any employee who makes such a request, MCM is entitled to set off banked hours accrued during the 2005 crushing season pursuant to clause 2.5 – Flexible Working Hours – of the Agreement, against entitlements to overtime and other penalty payments under the Award. The matter will be re-listed for further hearing at 12.00 noon on Monday 23 August 2004. At that time I will provide MCM with the opportunity to make submissions in relation to any actions proposed to be taken to enable me to certify the Agreement and/or to indicate its position in relation to the suggested undertaking. If the undertaking is given, or my concerns in relation to the Agreement are otherwise satisfactorily addressed, I will certify the Agreement forthwith. In the event that the Agreement is to be certified, I will also give the AWU an opportunity to remain as a party to the Agreement on the basis that it has not yet been formally amended to entirely remove reference to the AWU. In the event that the AWU advises that it does not wish to be a party to the Agreement, I will hear submissions as to why leave should not be granted to remove all references to the AWU on the basis that this would be an amendment for a formal or clerical reason as provided by s. 151(3) of the Act or would not disadvantage a relevant employee as provided by s. 151(3)(b): see Amcor Cartonboard Certified Agreement 2003 (2004) 175 QGIG 448. I.C. ASBURY, Commissioner. Hearing Details: 2004 27 and 28 July 9, 10 and 19 August Released: 19 August 2004 Appearances: Mr P. Warren of the Australian Sugar Milling Association, Queensland, Union of Employers with Mr R. Lynch of the Mossman Central Mill Company Limited. Mr J. Sharpe with Mr D. Groessler of The Australian Workers’ Union of Employees, Queensland. Mr E. Moorehead and Mr D. Trask of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Ms K. Inglis and Ms P. Rogers of the Electrical Trades Union of Employees of Australia, Queensland Branch. -- 5 of 5 --