AG2001/3499, Transcript of Proceedings [2001] AIRCTrans 1851 (8 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2001/3499

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by City of West Torrens for the certification
of the City of West Torrens Local Area Elder
Choices Enterprise Agreement 2001

ADELAIDE

11.04 AM, FRIDAY, 20 JULY 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have some appearances, please?

PN2

MS M. CANT: I represent the employer.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Cant.

PN4

MS C. HANKS: I represent the employee.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Hanks. Now, you may take your seat Ms Hanks. Ms Cant, this is an application for certification of an agreement. It is a quite specific type of agreement and it is provided for under the legislation so what I need from you at this stage is some background information as to the preparation of this agreement, the logic behind it and indeed you might have to bear with me as I ask you some questions. Thank you.

PN6

MS CANT: Certainly, okay. Back in November 1998 it became evident that people at Elder Choices were working in excess of their 18 hours as per the award. They sat down and had a meeting and decided to address options and at that point they brought in a Mr Ted Davis from the Community Employees Association to go through a range of options. It was presented to us by Ted Davis that one of those options would be a local area workplace agreement and in effect an hours agreement that would override the award and allow the employees to maintain additional casual hours.

PN7

The employees were strong advocates of remaining casual and it suited the business need as well because there were highs and lows each month depending on client need. As a result of that they had a number of meetings and put to their chief executive officer the option of having the local area agreement. At that point in time our chief executive was unwilling to proceed because he wanted to ratify the ASU certified agreement for council. That went ahead in November. We then drafted the agreement. We had further consultation, there were a number of meetings held with the staff. There are nine employees affected by this. It was often - it was presented at almost each and every monthly meeting. There were occasions where the supervisors left the room to allow the employees to negotiate amongst themselves. The agreement was drafted and it is this agreement that we bring to you today.

PN8

THE SENIOR DEPUTY PRESIDENT: Can you help me, Ms Cant, by telling me how you as the employer or representing the employer see this agreement as differing from the award?

PN9

MS CANT: Under the award casuals are only allowed to work up to a maximum of 18 hours per week. We were finding that we had the need for our casuals to work up to 38 hours per week. When we realised we were in breach of the award conditions it was suggested to the employees that they be made either permanent part time, or permanent full time. When they became aware that they were going to lose their casual loading they decided that they wanted to remain casual. It suited the business needs also because as I said, the flexibility of being able to maintain client case loads meant that there were times when we had a need for them to work 38 hours.

PN10

There were other times when we didn't have that need. If we had gone into a permanent part time or full time arrangement we would have needed to fix their hours and then obviously that would have affected the work-load. The employees were happy to do - wanted to maintain the casual loadings and we wanted I guess to some degree that flexibility as well. It has been driven primarily from the employees though in their desire to maintain the casual loading.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. If I refer to the statutory declaration that has been filed can you walk me through the essential elements then of that statutory declaration?

PN12

MS CANT: I have to admit this is the first time I have done one of these so - - -

PN13

THE SENIOR DEPUTY PRESIDENT: That is all right.

PN14

MS CANT: So I have checked with a few people to make sure - in effect what we were trying to say is that we wanted to have approval for the hours agreement. There were a series of meetings. We believe that all of the employees involved clearly understand when they negotiated and made the decision to support the agreement they were given copies of the agreement in writing. There were many occasions where the supervisors left the room so that they didn't feel as though were being put under any pressure to sign. In fact many of the changes that were made to the initial agreement to the one we have now have been implemented through the employees. So there was extensive consultation provided to the staff. It has actually been over quite a long period of time and the result was the agreement that we have today.

PN15

THE SENIOR DEPUTY PRESIDENT: When you say, "many of the changes" that were made - - -

PN16

MS CANT: Well, when this was first done back in 1998, they drafted an agreement which then went for consultation with the employees. Over a series of time and a series of meetings there were changes made to the initial draft to the one that you have before you today.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. The nine employees who are covered by the agreement, can I just be reassured that those employees, given that it appears that some of them come from a non-English speaking background.

PN18

MS CANT: I will just double check that. Joanna would you - they are not, no?

PN19

MS ..........: No. They may have non-English background surnames but they are all very fluent in English.

PN20

MS CANT: As I understand it there was - certainly the employer would have provided interpreters or any other mechanism needed to ensure that the staff were fully aware of what they were agreeing to but certainly from what I understand of the meetings and that can supported by the employees, is that they were very clear in understanding what it is that they wanted.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you for your assistance.

PN22

MS CANT: Thank you.

PN23

THE SENIOR DEPUTY PRESIDENT: Ms Hanks are you able to give me the employee perspective on the background to this agreement?

PN24

MS HANKS: Well, as Melita said - - -

PN25

THE SENIOR DEPUTY PRESIDENT: I realise it is a new experience for you.

PN26

MS HANKS: No, that is fine, I don't mind speaking. As Melita was saying it has been a long winded process, or a long process of negotiation. We have all had the opportunity as care workers to - employees sorry, to speak and voice any concerns that we have had. My line manager has supported our views and perspectives and taking those concerns back to the appropriate mechanism within the council and then relayed back to us. So all through the process I felt, and I speak for the others, that our concerns have been adequately allayed. I am happy, basically, that we - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Can you assist me in two areas, the first is just have some confirmation of Ms Cant's comment in relation to the employees who come from a non-English speaking background and I am particularly concerned that those people from your perspective have a very clear understanding of English and hence know what it is they were agreeing to?

PN28

MS HANKS: There is no language barrier with any of the other employees in regards to English.

PN29

THE SENIOR DEPUTY PRESIDENT: Secondly, the employees clearly understood from their employer that had they wished or been a member of a trade union and wished that trade union to be involved in the process, they could have invoked that trade union to represent them?

PN30

MS HANKS: Yes, it was made aware to me. I am the sole member of a trade union within the care workers. I did liaise with the union representative on this document and received her opinion and what she could do for me in terms of getting the best deal. In short, she suggested that I encourage the other employees to join the union and she said that the only difference she could make would be if there was a union, a majority in the union. This I again related to the other care workers and they decided that they didn't want to join a union. Having said that I am still happy with the result of the document, even though the lady from the union didn't get involved. Although I did use some of her advice and came back with some ideas and those changes were made as a result.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I first of all take the opportunity to congratulate both the employer and the employees on reaching this agreement. I am aware that the process whereby these agreements is reached is sometimes a process which is somewhat torturous and certainly involved a lot of effort. It is clear to me that that effort has been put into this matter and I believe that you ought to be congratulated on reaching such an agreement. I am prepared to certify the agreement on the basis of my consideration of it and of the statutory declaration that has been filed with the agreement, and indeed the information that both of you have given to me this morning.

PN32

It is clear to me that we have an agreement here, that has been developed on the basis of a written agreement, an agreement which has provided the opportunity for union involvement had that been requested. It is an agreement that does pass the no disadvantage test, contains the necessary grievance and dispute resolution procedures, and indeed was negotiated in a fashion which enabled employees to have a fair and reasonable input to it. It is an agreement that meets the requirements of the legislation in terms of its termination date and I am prepared to certify it as of today's date.

PN33

That means that I will sign a certificate effective from today that will be forwarded to the parties in due course. It remains for me to say that whilst your agreement does contain a dispute settlement process I sincerely hope that you won't need that in the course of the life of this particular agreement and look forward to hopefully future agreements being negotiated on a similar productive basis. On that basis I adjourn today's proceedings. Thank you.

PN34

MS CANT: Thank you, your Honour.

ADJOURNED INDEFINITELY [11.17am]