AG2001/3582, Transcript of Proceedings [2001] AIRCTrans 1876 (8 August 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 8559
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

No AG2001/3582

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Yooralla Society of Victoria for
certification of the Yooralla Society of
Victoria Community Access Services
Certified Agreement 2001

MELBOURNE

9.40 AM, MONDAY, 23 JULY 2001

PN1

MR M. RAHILLY: I seek leave to appear for the Yooralla Society of Victoria.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rahilly, I will give you leave.

PN3

THE SENIOR DEPUTY PRESIDENT: No other appearances?

PN4

MR RAHILLY: No.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rahilly.

PN6

MR RAHILLY: Your Honour, this matter involves an application by the Yooralla Society of Victoria for the certification of an agreement known as the Yooralla Society of Victoria Community Access Services Certified Agreement 2001. The agreement, together with statutory declarations by James Patrick Burns and Nicole Thursfield, have been filed with the Commission. The agreement sets out the terms and conditions of employment to apply to the employees to whom the agreement applies. Those employees are defined in clause 6 of the agreement under scope and application. I don't think I need to take the Commission to that.

PN7

The agreement provides for wage increases of three per cent upon certification and three per cent 12 months after that date and the agreement further provides for the ability of the employees to salary package their remuneration. In other respects, your Honour, the agreement reflects fundamentally award conditions of employment and we submit that it satisfies the no disadvantage test. Your Honour, could I just direct your attention to the statutory declarations briefly? In the statutory declaration of both Nicole Thursfield and James Patrick Burns at question 3.6, it appears that no answer was given to that question. Can I say to your Honour that the answer should be no?

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, I ascertained that.

PN9

MR RAHILLY: Thank you, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: The answer to 3.7 makes that clear.

PN11

MR RAHILLY: Yes, that is so, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: And in the statutory declaration of James Patrick Burns, if I could direct your Honour to 6.7, your Honour will see there the answer given is that the agreement is to operate three years from the date of certification. In fact, that should be two years.

PN13

THE SENIOR DEPUTY PRESIDENT: You did say two years.

PN14

MR RAHILLY: Sorry, your Honour?

PN15

THE SENIOR DEPUTY PRESIDENT: In the statutory declaration that I am looking at - yes, I have got Mr Burns' statutory declaration. In answer to question 6.7:

PN16

Does the agreement specify the date as the nominal expiry date that is not more than three years after the date on which the agreement will come into operation?

PN17

The answer is yes:

PN18

If yes, what is the date specified? Two years from the date of certification at clause 5.

PN19

MR RAHILLY: Well, your Honour, it may be that somehow electronically I have received an agreement that has been - sorry, declaration that was not amended, but I am pleased to hear that your Honour has the correct one.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, that is odd, because I had, when I first skimmed through them, thought precisely what you said to me and when I look at it more carefully, it said two years, so I don't know if there is another one floating around somewhere.

PN21

MR RAHILLY: Well, so long as your Honour has - - -

PN22

THE SENIOR DEPUTY PRESIDENT: No, it is Mr Thursfield's. I mean, it is Ms Thursfield's stat dec that says the three years in answer to that question. She is not here, is she?

PN23

MR RAHILLY: No, she is not, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Is she aware of the hearing?

PN25

MR BURNS: She was, but unfortunately wasn't able to come, so Gary has come as part of the negotiating committee.

PN26

THE SENIOR DEPUTY PRESIDENT: Very well. It is just that I noticed that we didn't formally notify her of the hearing as the rules require, but I am satisfied that Ms Thursfield is aware of the hearing. I will accept, because I have read the agreement, that her answer to clause 6.7 is a typographical error and should have been two years. That doesn't cause me any problems.

PN27

MR RAHILLY: Thank you, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Just tell me about the part of the single business and why I should be satisfied that it is appropriate to certify it, Mr Rahilly.

PN29

MR RAHILLY: Your Honour, the agreement is made in respect of a business unit, if you like, which forms part of Yooralla Society's operations and that business unit comprises those services which are set out in 2.3 of the statutory declarations, that is the Community Learning and Living Service in King Street, Melbourne, Recreation Service at the same address and First Base Services, which are situated at various addresses in Box Hill, Braybrook, North Box Hill, Noble Park and Coburg.

PN30

Those three services form, if you like, a discrete part of the operations of the Yooralla Society and I can say to your Honour that the Commission has already certified one agreement in relation to another distinct part of the operations and his Honour Boulton J is currently considering the certification of an agreement covering the employment services which are the people with disabilities, essentially, within the Yooralla Society as another distinct and discrete part of the business.

PN31

THE SENIOR DEPUTY PRESIDENT: I was more interested in the answer to question 2.4 in the statutory declarations, if:

PN32

Part of the single business is a geographically distinct part?

PN33

And the answer to that has been yes, but then I was looking at clause 6 and to the exclusions in clause 6. I just would like you to explain the effect of those exclusions to me if you could, Mr Rahilly. It is clause 6 on the scope and application of the agreement. There are certain categories and I can't pick from that exactly who they are, are excluded from the operation of the agreement.

PN34

MR RAHILLY: Your Honour, the first category are employees to whom an award of the Commission applies, which was an MX award, 170MX award.

PN35

THE SENIOR DEPUTY PRESIDENT: I see.

PN36

MR RAHILLY: Covering therapy staff and health professionals. The second group are obviously the management group who are covered by - well, who are excluded because they are covered by individual contracts of employment.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, and only if those individual contracts are superior to the agreement, I notice.

PN38

MR RAHILLY: That is correct, your Honour, yes, and the third group are a group of employees known as the non-award remuneration system staff. Now, that is an agreement which Commissioner Gay recently certified and they have their remuneration determined under I think it is the Hay system and Commissioner Gay has found that agreement to satisfy the no disadvantage test, so they are the groups who are excluded from the agreement.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. What I am looking at in particular and what I need to be satisfied with is in relation to section 170LU(8). If I considered that the agreement defines the part of the single business in a way that results in the employment of employees not being subject to it, where it would be reasonable for them to be bound by it or subject to it, I am not entitled to certify the agreement and I just need to understand why from that business unit those employees are not bound by it and I think that I understand that some are subject to an MX award, others are subject to another certified agreement and others are managerial, are they?

PN40

MR RAHILLY: That is essentially it, your Honour, yes.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN42

MR RAHILLY: Your Honour, subject to anything else that your Honour may wish to ask me about, we submit that the agreement is capable of certification and that it does meet the requirements of the legislation.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Rahilly. I think you are right and I will certify it. I think it does meet the requirements of the legislation. I am satisfied that it passes the no disadvantage test and the other requirements and that there are no reasons why I shouldn't certify it. I will do so and I will publish my reasons with the certification. It will take effect from today's date and remain in force for a period of two years.

PN44

MR RAHILLY: If your Honour pleases.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

ADJOURNED INDEFINITELY [9.51am]