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[2002] AIRC 441
plaintiff. The Commissioner extended the time for lodging the application to 1 March 2002 and certified the Brink Productions Performers Certified Agreement 2000-2002, with a nominal expiry date of 30 June...
1 cited instrument linked from this judgment.
The MEAA lodged its agreement-certification application after the stated filing period had expired. There was also an error in the original declarations about which award applied. After receiving further submissions and corrected declarations, Commissioner Larkin extended the filing time and certified the agreement. The decision gives no broader explanation of the legal test for an extension or the detailed operation of the no disadvantage test.
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1,612 words · generated 30/09/2026
Commissioner Larkin dealt with an application by the Media, Entertainment and Arts Alliance (MEAA) to certify an agreement with Brink Productions Ltd under s.170LJ of the Workplace Relations Act 1996 [1]. The agreement was called the Brink Productions Performers Certified Agreement 2000-2002. The MEAA lodged its application on 1 March 2002. Brink Productions could not attend the hearing, but had advised the Commission by correspondence dated 19 March 2002 that it consented to certification [2].
Two issues needed further attention. First, the agreement had been approved by a valid majority on 5 December 2001, but the certification application was lodged outside the 21-day period identified in s.170LM(2) [3]. The MEAA sought an extension of time under s.111(1)(r) [5]. Second, the statutory declarations initially named the Entertainment and Broadcasting Industry - Actors - (Theatrical) Award 1998 as the relevant award for the no disadvantage test. Brink Productions was not a respondent to that award [4].
The Commissioner adjourned the matter while the MEAA provided further material. On 21 March 2002, the MEAA advised that the declarations were mistaken and identified the Actors Theatrical (South Australia) Award No. 13/84 as the relevant award, describing it as a common rule award in South Australia. Corrected declarations were filed on 4 and 11 April 2002 [6].
On 17 April, the MEAA filed submissions about the delay. It described difficulties formalising the paperwork over several months. It also submitted that the group of actors likely to be affected remained substantially the same between the agreement vote and the application date [7]. The Commissioner extended the time for filing to 1 March 2002, the date the application was actually lodged [8]. Having considered the submissions and corrected declarations, the Commissioner was satisfied the legislative requirements for certification had been met and certified the agreement. Its nominal expiry date was 30 June 2002 [9].
There is a date discrepancy in the reasons. Paragraph [3] says the valid majority approved the agreement on 5 December 2001. The quotation in paragraph [7], reporting the MEAA's submission, refers to a meeting and vote on 5 December 2002. This analysis follows the date stated directly by the Commissioner in paragraph [3], while noting that paragraph [7] records the inconsistent date in the submission.
This was a short administrative certification decision, not a judgment explaining a general doctrine in depth. The Commissioner identified the filing delay, received a request for an extension, and stated the outcome: “On the material before me” the time should be extended to 1 March 2002 [8]. The reasons do not reproduce the full text of s.111(1)(r), set out a multi-part test, or explain which individual considerations were decisive.
The MEAA's explanation included the time spent formalising the paperwork and the claim that the actors likely to be affected formed substantially the same community at the time of the vote and at the time of the application [7]. The Commissioner recorded that material and then granted the extension [8]. It would go beyond the stated reasons to treat any one of those points as a universal or necessary criterion for an extension.
The award issue was resolved through further factual and documentary material. The original declarations named an award to which Brink Productions was not a respondent [4]. The MEAA later corrected the identification, and declarations from Brink Productions' company manager and the MEAA were filed [6]. The Commissioner then said that, “based on” the submissions and corrected declarations, the legislative requirements for certification had been met [9]. The decision does not explain the substantive comparison made for the no disadvantage test, or set out the terms of either award or the agreement.
Accordingly, the central reasoning visible in the decision is procedural and document-based: the late application was accepted after an extension, the award information was corrected, and the Commissioner was satisfied on the material then before the Commission.
The decision itself records the relevant statutory provisions as s.170LJ, s.170LM(2), and s.111(1)(r) of the Workplace Relations Act 1996 [1], [3], [5]. It does not give a comprehensive account of the statutory framework, and no other legal source is provided here. The legal propositions that can safely be extracted are therefore limited to what the Commissioner actually did and said.
Before the extension, the application was outside the 21-day period described in paragraph [3]. The Commissioner exercised the power sought under s.111(1)(r) and extended the time to the date of lodgement, 1 March 2002 [5], [8]. The decision thus illustrates that an extension was granted in this particular certification matter. It does not establish from its text alone what considerations must govern other applications, or whether the same result would follow on different facts.
Before the corrected declarations, the application material identified an award that did not apply to Brink Productions as a respondent [4]. The award was later identified as the Actors Theatrical (South Australia) Award No. 13/84 [6]. Following that correction, and consideration of the associated submissions, the Commissioner was satisfied that the certification requirements had been met [9].
The decision does not describe a change in the law before and after the case. It records an application of the cited provisions to the materials before the Commission. Any account of subsequent statutory amendments or broader legal development would require sources beyond this decision.
Paragraph [3] identifies the filing problem: the agreement had been approved on 5 December 2001, but the application was not lodged until 1 March 2002, outside the stated 21-day period. In plain English, the Commission had to address the delay before proceeding to certification.
Paragraph [5] records the MEAA's request to use s.111(1)(r) to extend time. It also records the need to investigate which award was relevant to the no disadvantage test. In plain English, the Commission paused the matter so the party could address both the late filing and the mistaken award information.
Paragraph [7] sets out the MEAA's explanation for seeking an extension. It referred to difficulties completing the paperwork and argued that the actor community likely to be affected had remained substantially the same. These are the MEAA's submissions, not a separate finding that every detail of that account was proved.
Paragraph [8] contains the operative extension decision: “On the material before me” the Commissioner extended the prescribed time to 1 March 2002. The wording makes clear that the result was based on the evidence and submissions in this particular matter.
Paragraph [9] records the certification decision. The Commissioner relied on the MEAA's submissions and the corrected statutory declarations filed on 4 and 11 April. In plain English, correcting the award information formed part of the material considered before certification.
The decision is relevant as an example where an agreement-certification application was filed after a stated statutory period, and the applicant sought an extension under s.111(1)(r). The specific delay arose because the agreement was approved on 5 December 2001 and the application was lodged on 1 March 2002 [3]. The MEAA's explanation included difficulty formalising the paperwork and its submission that the relevant actor community had remained substantially the same [7].
It is also a useful example of an application where an error in identifying the award relevant to the no disadvantage test was raised during proceedings. The initial declarations named an award to which the employer was not a respondent; the MEAA later supplied a different award identification and corrected declarations [4], [6].
The decision does not establish that these facts are sufficient in every later matter. It does not specify a minimum or maximum acceptable delay, identify a complete list of considerations relevant to an extension, or explain how the no disadvantage comparison was conducted. Its demonstrated significance is narrower: in this case, the Commissioner accepted a late application after extending time and proceeded after receiving corrected award information.
The decision contains no discussion of later cases, and no later authorities are included in the supplied material. It is therefore not possible, from this source alone, to say whether later courts or tribunals followed, distinguished, applied, or questioned it.
The reasons also cite no earlier judicial decisions. The precedent-relationship field is consequently empty. The decision may be described as a Commissioner's decision on the facts before the Commission, but this text alone does not establish how it was treated in subsequent proceedings or its present precedential status.
Several matters are left unresolved by the reasons. The Commissioner does not explain the full legal test for an extension under s.111(1)(r), nor identify which aspects of the MEAA's explanation were decisive. The decision therefore does not answer how a different length of delay, a different explanation, or a different effect on employees might be treated.
The reasons also do not set out the agreement's substantive terms, the relevant award's conditions, or the detailed comparison undertaken for the no disadvantage test. They establish only that the Commissioner considered the corrected declarations and submissions and was satisfied the legislative requirements had been met [9]. The precise reasoning for that satisfaction cannot be reconstructed from the decision.
Finally, the date inconsistency between paragraphs [3] and [7] remains visible in the text. Paragraph [3] gives 5 December 2001 as the approval date, while the submission quoted in paragraph [7] says 5 December 2002. The decision does not expressly resolve that discrepancy.
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s.170LJ certification of agreement
BRINK PRODUCTIONS PERFORMERS CERTIFIED AGREEMENT 2000-2002, THE
Certification of Division 2 agreement with organisation(s) of employees.
[1] On 21 March 2002 I heard an application for certification of an agreement under s.170LJ of Division 2 of Part VIB of the Workplace Relations Act 1996 lodged by the Media, Entertainment and Arts Alliance (MEAA) on 1 March 2002. The agreement, known as The Brink Production Performers Certified Agreement 2000-2002, is between the MEAA and Brink Productions Ltd of Odean Theatre, Cnr Queen Street and The Parade, Northwood SA 5067 (Brink Productions).
[2] Ms. Propper appeared on behalf of the MEAA at the hearing of the application. Brink Productions, by correspondence of 19 March 2002, advised its inability to appear in proceedings, however, indicated consent to the certification.
[3] Two issues arose during the hearing of the matter. The first issue concerned the requirements of s.170LM(2)(a). The agreement was approved by a valid majority on 5 December 2001. The application for certification, however, was not lodged in the Commission until 1 March 2002, which is outside the prescribed time limit of 21 days as required by s.170LM(2).
[4] The second issue concerned the appropriate award for the purposes of the no disadvantage test. The Statutory Declarations filed with the application for certification stated that the Entertainment and Broadcasting Industry - Actors - (Theatrical) Award 1998 was the relevant award. Brink Productions, however, is not respondent to that award.
[5] Ms. Propper sought an opportunity to file written submissions on the s.170LM(2) issue. The MEAA, it was submitted, would seek that I exercise the power available to me under s.111(1)(r) and extend the prescribed time to lodge the application. Ms. Propper further sought an opportunity to investigate the issue of the relevant award. I therefore adjourned proceedings to await the MEAA response.
[6] On 21 March 2002 Mr. Spence, MEAA - South Australian Branch, advised my office that the Statutory Declarations filed with the application were in error. He advised that the relevant award for the purpose of the no disadvantage test was the Actors Theatrical (South Australia) Award No. 13/84, a common rule award in South Australia. On 4 April 2002 and 11 April 2002 Mr. Mayhew, Company manager of Brink Productions and Mr. Warren, MEAA, filed Statutory Declarations correcting the previous declarations filed.
[7] On 17 April 2002 Mr. Spence filed written submissions in support of the MEAA s.111(1)(r) application. Mr. Spence outlined the difficulties experienced over a number of months to formalise the paperwork required to lodge the application. He further submitted that:
"The Brink ensemble of actors which met to consider and vote on the Agreement on 5 December 2002 is largely the same group of individuals who comprise Brink Productions today. The Company continues to produce and cast on a show-to-show basis drawing from both the ensemble and the general pool of freelance Australian actors. The group of employees likely to be effected by the Agreement is the Australian freelance actor community, largely the same body of individuals in April 2002 as existed in December 2001.
The Alliance would submit that taking the above circumstances into account there are reasonable grounds for the Commission to grant an extension of time under Section 111 1R to the time frames for lodgement prescribed by the Act."[1]
[8] On the material before me I am satisfied that I should extend the prescribed time to lodge the application for certification of the agreement to 1 March 2002, and I do so.
[9] Based on the submissions of Ms. Propper on 21 March 2002, and the Statutory Declarations filed on 4 and 11 April 2002, I am satisfied that the legislative requirements for certification have been met. I will therefore certify the Brink Productions Performers Certified Agreement 2000-2002 as of to-days date. The agreement has a nominal expiry date of 30 June 2002.
Printed by authority of the Commonwealth Government Printer
Media, Entertainment and Arts Alliance
Brink Productions Ltd re Brink Productions Performers Certified Agreement 2000 - PR917049 [2002] AIRC 441;
The Commissioner extended the time for lodging the application to 1 March 2002 and certified the Brink Productions Performers Certified Agreement 2000-2002, with a nominal expiry date of 30 June 2002.