AG2001/4584, Transcript of Proceedings [2001] AIRCTrans 2450 (21 September 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 0035
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/4584

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Australian Municipal, Administrative,
Clerical and Services Union for certification
of the NGT Staff Agreement 2001

MELBOURNE

11.20 AM, MONDAY, 3 SEPTEMBER 2001

PN1

MR J. GLISSON: I appear for NGT Corporate Services.

PN2

THE SENIOR DEPUTY PRESIDENT: Have you any idea why there is nobody here from the ASU?

PN3

MR GLISSON: No, sir. I spoke to a representative - well, our negotiations have been directly with Ian Patterson from the ASUs Tasmania branch. He has passed the matter onto his Federal office. And I spoke to Mr O'Brien, Barry O'Brien, from the ASU some two weeks ago about the representation here today. Mr O'Brien said he would be managing the paperwork, but would be going on leave, I think, as of last Friday, and he would organise for another representative to be present. But beyond that I am afraid I have no idea why they are not here.

PN4

THE SENIOR DEPUTY PRESIDENT: It sounds as though he forgot to organise somebody else in his excitement.

PN5

MR GLISSON: Maybe. I really - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Well, perhaps you can address me on the certified agreement, Mr Glisson?

PN7

MR GLISSON: Only too happy to, sir.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN9

MR GLISSON: Mr Deputy President, if I can just take you back a little bit first about NGT. NGT is a private non for profit organisation. We are a group training company, which has a number of sections or arms to it. It has got a registered training organisation group employment section, and it has got a new apprenticeship centre. For a good number of years, I suppose about 10 years, we operated in a comfortable, fairly small way in Tasmania alone, using basically the Tasmanian Clerical and Administration Award as our guide in terms of what we paid people within our organisation.

PN10

Some four years ago we started to grow quite rapidly and expand, not just throughout Tasmania, but also throughout other states of Australia. And we now have, in fact, a branch or an office in New South Wales, Victoria, South Australia and Western Australia - and Queensland, sorry. Obviously we needed to expand the industrial arrangements that looked after the industrial interests of our employees or our staff. We wanted to move away from the situation we had, where we had in fact a state registered industrial agreement. I have a copy here I can hand up if it is of any assistance.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR GLISSON: In fact there are two copies there. I brought one for the ASU, but there are two copies there.

PN13

THE SENIOR DEPUTY PRESIDENT: We will take one and put it on the file.

PN14

MR GLISSON: Okay. Thank you. This agreement was registered in 1998 before Deputy President Wattlin of the Tasmanian Industrial Commission. As I say we used as a basis for our negotiations, the Tasmanian Clerical and Administration Award, and created this agreement, which has been in place up until - well, it is effective as of - it is still current. They run on until replaced or amended. And the intention is to replace it now with a Federal agreement which is before you today, so that it does in fact give protection to our staff in the other states, as well as the Tasmanian agreement. And it really does replace that.

PN15

We have expanded - well, we have gone through a process of negotiation and discussion with our staff. That has been going on for the best part of 12 months, I suppose, involving the ASU, as well as regular meetings in all of our offices, and bringing representatives from each of the regions to regular sessions in our Launceston office, to make sure that everybody understood how and why we were going about the process, what we were doing, and to come up with an agreed outcome. We did make some changes, fairly significant changes, I suppose, to the old agreement, bringing it up to the standard of the new agreement.

PN16

The most significant of those would be in terms of the wage rates. We went from a situation where we didn't have wage rates in our current agreement, I suppose I should say, for trainees under National Training Wage. We were simply using the National Training Wage for that purpose and we have decided now to insert a provision for trainees, and put in place, under the annual salary, the National Training Wage rates. We have only put the dollar figures but they will be applied as if it were the National Training Wage. So, a year 10 school leaver would be at the lower level. A year 10 plus 2 or 3 or 4 would progressively be up the level.

PN17

As I say, we haven't spelt that out as clearly as I suppose we could have in the agreement, but we have - well, traditionally - and we will continue to apply it as per the National Training Wage formula for those employees. We have then increased the salaries by a minimum of 6 per cent from what they were - well, what they currently are in the award. We have applied a minimum of 6 per cent increase to those and created the new industrial - new wage rates. And the 6 per cent has been effective from 1 July 2001 and in fact is now being paid to most, if not all, of the staff, as they have gone through their performance reviews, which is part of our industrial arrangements.

PN18

The 6 per cent has been applied to them, so we have kept track of who has had their review and who has had the pay increase at the same time. Other changes to the document are not significant, but as I say, we have included the National Training Wage and we have applied a 6 per cent increase from the last year's rates to the current rates in the agreement. There was some concern and some discussion with the ASU about whether or not we had actually been logged or not. And our little bit of research seems to have shown that we have been logged a couple of times by the ASU. Firstly in 1996 we were logged. And at that stage we were in the process of negotiating our original agreement. The agreement - - -

PN19

THE SENIOR DEPUTY PRESIDENT: You don't need a dispute to have this agreement certified in any event, do you?

PN20

MR GLISSON: That I am not sure, sir. I am not certain of the position. That is why we - I suppose I have tried to cover just in case we need it. I wanted to spell out the fact that we had been found as a party to a dispute C No 33792 of 1996. And we had been dropped off the roping in exercise at that stage because we were negotiating our own internal agreement. We were logged again in 1998. And again the ASU wrote to us and said that - they advised that the ASU withdrew the log of claim served on 1 June 1998 in C No 35005 of '98, as a result of the industrial arrangements that we had in place. So, I just wanted to - I don't know if you require a copy of that?

PN21

THE SENIOR DEPUTY PRESIDENT: No, I don't. Thank you.

PN22

MR GLISSON: The agreement itself - as I understand, section 170 requires that we can show that it is not contrary to the public interest. And quite clearly giving industrial protection for all our staff across the nation, rather than just in Tasmania, and having standards apply, is for the betterment of our employees. And we will certainly assist in eliminating and minimising any industrial disharmony that might come about. Although I must say, we have never had any industrial problems within the organisation. And that is part of the nature of the organisation.

PN23

THE SENIOR DEPUTY PRESIDENT: Do you apply the Tasmanian agreement to your staff in the other states as well, do you, until now?

PN24

MR GLISSON: Until now - well, until now we have had the - well, we have been told that it meets the criteria in other states. And most of them have been under individual contracts up until now - interstate ones. And they are now coming under this as a minimum - as a basis, I suppose. And will be the minimum that will be applied to them from here on in, if it is endorsed by the Commission. But in most cases they are brought in on a negotiated contract basis, other than the clerical and admin people. As I say, I certainly believes it meets - or is not contrary to the public interest. It has certainly been endorsed by an overwhelming majority of all the employees of NGT.

PN25

I think of the 100 that were eligible to vote, something like 86 voted in favour, three or four failed to return their ballots for whatever reason, and a couple - well, the remainder would have voted no. We asked people that voted, if they were voting to reject it, to give us some indication of why. And to the best of our records at this stage, the issues that resulted in people voting no related principally to a couple of concerns that they had. And they referred to - in the agreement it refers in a couple of instances to the company's policy. For example it talks about someone that takes sick leave would - part F on page 32 of the agreement, if I can just refer to that.

PN26

In (2), "Sick Leave" (b) required:

PN27

Notification and proof of sickness or injuries shall be in accordance with the company's sick leave policy.

PN28

For whatever reason a number of the staff said, "Well, we don't like referring to the company policy, and we would like to see something else in there". It also refers to the company policy in things like "Motor Vehicle Expenses". The agreement says that there will be -

PN29

Prior approval is required in accordance with company policy.

PN30

THE SENIOR DEPUTY PRESIDENT: Where do people find these company policies?

PN31

MR GLISSON: They are all available where we - every one of our staff has a desk with a computer on it. All those policies are on our intranet system and are available to everybody every time they go to work. There is no restriction. There is no bar. There is a hard copy of all the policies in the company offices, so that people can access the written copy, if they want to take a photocopy away. But other than that it is there and on the intranet, and they can either down load and print another copy if they want it, or just read it where it is on the intranet.

PN32

THE SENIOR DEPUTY PRESIDENT: Often people express a concern about reference to company policy, because company policy documents can be changed by the company at any time, without agreement between the parties. What is the position with your organisation? When you say, "in accordance with company policy", is it in accordance with company policy at the time the agreement was made, or in accordance with company policy as it may be from time to time?

PN33

MR GLISSON: It is company policy as when the agreement is made. And any change to the policy - we go through a process - I suppose some of the new staff may not understand the process that we go through, even though the change to policy policy, so to speak, is there on the intranet too. Nine times out of ten it will be as a result of a consultative process. If someone comes up with a proposed change to the company policy, it is circulated and discussed before a decision is made about it. So, people would have plenty of time to raise those sort of issues, if that is what they require or wanted to do.

PN34

And as of - well, certainly in the period that I have been with the company, there have been no policies changed without consultation, and there have been no changes to policy that would adversely affect the majority of our workforce.

PN35

THE SENIOR DEPUTY PRESIDENT: How long have you been with the organisation?

PN36

MR GLISSON: I have been an employee of the organisation for the past four years. Prior to that for approximately four or five years I was, in fact, a board member of NGT - an honorary board member, whilst I was working elsewhere.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN38

MR GLISSON: So, approximately eight years experience with the company. I think it is boxing at shadows. And everybody knew that voting against it was not going to overturn the agreement, because of the overwhelming support of the document. But one or two simply wanted to make a protest and they have made their protest. It has been noted, and we have explained to them that even though it refers to the company policy, if we deleted the policy, it still means that they have got to get prior notification of using their own vehicle for it to be paid for. So, taking out the word "policy" really means nothing.

PN39

It really is, as I say, a bit of boxing at shadows in this instance. Apart from meeting the public interest, being overwhelmingly endorsed by the majority of the staff, I think the Act requires that there is a dispute settling procedure in the agreement, which is at part 8 section 5 on page 47.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Can I just take you to that? As I read it - and I just want you to clarify my understanding - sub clause (g) on page 50, which allows the matter to be taken to the Commission in the event that conciliation between the company and the employee or union fails to resolve the dispute - does sub clause (g) apply in respect of all of the matters in the dispute and grievance procedures in clause 5?

PN41

MR GLISSON: My understanding is that any issue about which there is a dispute, can be referred to the Commission. I am not aware - - -

PN42

THE SENIOR DEPUTY PRESIDENT: That is the way I would have read it. I just wanted to clarify on the record that that is your understanding as well.

PN43

MR GLISSON: Certainly, yes, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR GLISSON: I mean, any matter that - we would certainly hope matters can be resolved either by internal negotiations, discussions, involvement of the union and/or going to our board.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR GLISSON: There is access to the board if it is required - - -

PN48

THE SENIOR DEPUTY PRESIDENT: But then any - - -

PN49

MR GLISSON: But if it can't be resolved, certainly referring it to the Commission is the appropriate course of action that we see.

PN50

THE SENIOR DEPUTY PRESIDENT: And again what is not clear from the clause, is what do you expect would happen in the Commission? What does the agreement envisage, conciliation, arbitration, both?

PN51

MR GLISSON: Well, we would certainly see probably both, hopefully by conciliation. Failing conciliation, then the Commission would make a determination and all parties would accept that.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. The company certainly wouldn't object to the Commission determining the issue at all?

PN53

MR GLISSON: No, sir, we would not.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I just wanted to clarify that. I will ensure that a copy of the transcript appears on the file.

PN55

MR GLISSON: Yes, sir.

PN56

THE SENIOR DEPUTY PRESIDENT: So, that if there is any worry about this in the future, your comments can be looked at.

PN57

MR GLISSON: My neck. Certainly, no problem. The other issue I believe from the Act requires a duration, although having read it again this morning - provision - I see it requires an actual expiry date rather than a duration.

PN58

THE SENIOR DEPUTY PRESIDENT: No, I think it is okay if there is a duration.

PN59

MR GLISSON: Okay. Well, it is a two year agreement commencing from 1 July, which is when we started paying people from at the higher rates. So, the expiry date would in fact be 1 July 2003, in two years time. And we would renegotiate at that stage. There is built into the agreement, ongoing increases in the wage rates, and they are to be paid in line with the National CPI wage increases. On page 9 it reads that:

PN60

Wage amounts which are specified in clause 1A...

PN61

Which is the wage rates:

PN62

...will take effect on 1 July 2001, regardless of the certification of this agreement.

PN63

We reached agreement with our staff and have every intention of paying those agreed rises, even if there was a problem and the agreement didn't get registered. We have given that commitment and it will apply.

PN64

Wage amounts will be reviewed annually and increased according to the National CPI for the March quarter of the previous year. The first review will occur...

PN65

Well, has occurred.

PN66

The parties undertake that during the life of this agreement there shall be no further wage increases sought or granted, except as provided under the terms of this agreement.

PN67

Each year we will be looking at the CPI for the previous year. We will be doing that in the March quarter and flowing that onto the wage rates of all the staff that this agreement applies to. As I say, the agreement has been negotiated in a very consultative way. There have been regular meetings throughout the last 12 months with either telephone link ups or with staff flown in from interstate to attend those meetings. The minutes and outcomes of all those meetings have been posted on our intranet system, so that any staff, in any office, at any desk, can look on the hub and simply find out what was discussed at the meeting, what the proposed outcome was, and had an opportunity to say, "I have a problem or concern with that", or "Yes, I think it is fine".

PN68

There has been nothing negotiated that hasn't been open and presented to the staff. And as I say, the ASU have been very cooperative in facilitating some of that process, both in advising their members within our organisation, and in fact even being prepared to address and explain to some of the non union members, the situation with regards to the proposed changes. I would ask that the Commission accept and endorse the agreement put before you.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Glisson. Mr Glisson, having heard from you and having read the statutory declarations both on behalf of the employer and the union, I am satisfied that the agreement passes all the statutory tests, and I will certify it. In particular I am satisfied that it is an agreement about matters pertaining to the relationship between an employer that is a constitutional corporation that is carrying on a single business, and the ASU. That the ASU has at least one member employed in the business eligible to - and it is entitled to represent the interests of that member. I am satisfied that the agreement passes the 'No Disadvantage Test'.

PN70

That it was made in accordance with section 170LJ and a valid majority of persons employed at the time, whose employment would be subject to it, generally approved it. I am also satisfied that the explanation of its terms was appropriate in the circumstances, and that it includes procedures for preventing and settling disputes between the parties, as explained by you to me, involving ultimately taking the matter to the Commission for resolution. I am satisfied that it specifies 1 July 2003 as the nominal expiry date by referring to a period of two years for the operation of the agreement, and that that is not more than three years after the date on which the agreement will come into operation, which is 1 July 2001.

PN71

Accordingly - I am also satisfied that there are no reasons in section 170LU as to why I should refuse to certify the agreement. Accordingly the agreement will be certified with effect from today, to operate in accordance with its terms, from the first pay period on or after 1 July of this year, for a period of two years. Thank you for your attendance.

ADJOURNED INDEFINITELY [11.43am]