AG2001/4885, Transcript of Proceedings [2001] AIRCTrans 2808 (17 October 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 0502

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/4885

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by the Australian Workers Union for certification
of the Gippsland and Southern Rural Water Authority
(Trading As Southern Rural Water) Southern Rural
Water Agreement 2001

MELBOURNE

11.59 AM, MONDAY, 1 OCTOBER 2001

PN1

MS D. HILL: I appear for the CPSU.

PN2

MR J. WATT: I am the Human Resources Manager appearing for Southern Rural Water.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Watt. Why don't we deal with the certification of the agreement first.

PN4

MS HILL: Thank you, your Honour. We have just had a brief chat amongst ourselves and Mr Watt will provide you with some details of the actual certification matter. Thank you.

PN5

MR WATT: Yes. If the Commission pleases, we seek to make a certified agreement under section 170LJ for a period of three years. The necessary statutory declarations have been completed and submitted within the 21 day period from the date of the vote by the employees which was on 30 July 2001. The CPSU and Southern Rural Water submitted those statutory declarations 14 days after their vote and I understand the Australian Workers Union also submitted the necessary documentation soon thereafter.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes. Why aren't they here today?

PN7

MR WATT: I have no word from them.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR WATT: On 30 July 2001 77 of our 80 employees out of a possible 95 voted in favour of the agreement thereby providing an overwhelming majority accepting this new enterprise agreement. Our application is therefore submitted for your certification. Thank you.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Hill?

PN11

MS HILL: I have nothing further to add, your Honour, other than the CPSU has provided our statutory declarations and we concur with the certification of the actual agreement.

PN12

THE SENIOR DEPUTY PRESIDENT: I have read the statutory declarations including that of the AWU and I have also had a look at the agreement and there is just one matter I would like to raise in relation to the agreement. Yes, in clause 10.2 - and this is to both of you - it is provided that as part of the dispute settling or problem solving procedure the employees are entitled to have a representative of the union present at the discussion. I take it that that doesn't disentitle an employee to have somebody else present at the discussion if the employee concerned does not want a union representative there. Am I right in my understanding?

PN13

MR WATT: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Hill?

PN15

MS HILL: Your Honour, we - obviously if somebody doesn't want to be represented by the union we don't have that great deal of concern so if they were to bring their mother-in-law or somebody else I don't know that we would necessarily be concerned with that.

PN16

THE SENIOR DEPUTY PRESIDENT: I just wanted to clarify that for the record. Yes, thank you. Well, in that case I am satisfied that the agreement passes all the statutory hurdles and am prepared to certify it. It is an agreement that pertains to the relationship between en employer in Victoria and employees in Victoria employed in the single business. Both unions have at least one member employed in the business and each union has eligibility. The agreement passes a no disadvantage test. It is made in accordance with section 170LJ.

PN17

A valid majority have genuinely approved it. The explanation of its terms was appropriate. It includes dispute settling procedures and it specifies three years as the nominal expiry date and that is not more than three years after the date of certification which will be today. I don't believe there are any reasons in section 170LU of the Act as to why I should refuse to certify it. In that case it will be certified to operate from the first period on or after today and the appropriate instrument will issue shortly.

PN18

Now, can I ask you to please address me on the application to set aside AWAs. That is matter C2001/4951. Who wants to go first there?

PN19

MR WATT: Thank you. Southern Rural Water has a mix of employees on both recently expired and current Australian Workplace Agreements. Most of our current Australian Workplace Agreement employees have individually and voluntarily sought approval of the employment advocate to terminate their AWAs upon certification of our new Enterprise Agreement 2001. However, the recently expired group of AWA employees most of whom are expecting to be covered by the enterprise agreement outcome and therefore this application is made to the Commission under section 170VM in order to turn off and finalise the expired AWAs for your approval please, Senior Deputy President.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Hill, do you have anything to say?

PN21

MS HILL: Thank you, your Honour. Yes, we do in fact have a problem with the termination of AWAs on the basis that the matter of one of the AWAs has been a matter before this Commission which was C2001/4233 before Commissioner Simmonds on 28 August. The matter before him was a matter pertaining to what the employee was saying was a non-payment that he was entitled to receive that all others employed at Southern Rural Water received. He had a clause in his AWA that said that if anyone was to receive a general salary increase throughout the life of his AWA that it would in fact be passed on to himself and others in the same boat. I understand they were generic AWAs.

PN22

On that basis Commissioner Simmonds found that AWA employees should have the option of reverting to the conditions they enjoyed prior to entering into their AWA and on that basis the employees should recognise that they are entitled to the 3 per cent salary increase received by other non-AWA employees as at 1 July 2000. Your Honour, we have written to Southern Rural Water Authority on two occasions now. I would just like to hand up copies of those documents. Thank you.

PN23

THE SENIOR DEPUTY PRESIDENT: I will mark these documents as exhibits. The letter from Ms Hill to Mr Watt dated 12 September 2001 will be exhibit CPSU1.

EXHIBIT #CPSU1 LETTER DATED 12/09/2001

PN24

THE SENIOR DEPUTY PRESIDENT: And the letter from Ms Hill to Mr Watt dated 28 September 2001 will be exhibit CPSU2.

EXHIBIT #CPSU2 LETTER DATED 28/09/2001

PN25

THE SENIOR DEPUTY PRESIDENT: If you would just give me a moment while I read them please. Yes, thank you.

PN26

MS HILL: As outlined in CPSU1 and CPSU2 the CPSU has been pursuing the recommendation from Commissioner Simmonds to the hearing that did in fact take place and it is our proposal today, given that from discussions this morning with Mr Watt I understand they are seeking legal advice on this matter, we would be asking the Commission to set the application to terminate the AWAs aside until such time as this matter can be dealt with. There has been a bit of a travelling road show by the employer around to all of its employees to seek their approval to come off their AWAs and there are a number of people that don't wish to do so on the basis of this other matter.

PN27

So it is our proposal that whilst the employer gets their legal advice and we come to whatever arrangement with respect to the hearing that has already taken place and Commissioner Simmonds recommendation it would be our contention that we set this aside until a date to be fixed.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Mr Watt, what do you have to say?

PN29

MR WATT: Commissioner Simmonds in the transcript made comment that he didn't feel it was the - under the jurisdiction of the Australian Industrial Relations Commission for him to decide upon this section 99 matter that the CPSU have taken action for. I believe this is a separate matter. Our application today is to have the expired Australian Workplace Agreements turned off so that those employees can gain the benefits of our new Enterprise Agreement 2001. I don't see that there will be any disadvantage. Certainly the section 99 case will continue and there will be an outcome at some stage along that path. I see them as two separate issues. Thank you.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Well, I have a problem with setting aside the AWAs. It is not quite that of the CPSU but it would appear to me that the employees to the AWAs have not been notified of today's hearing and they should be notified they have a real interest. The certified agreement that comes into operation today under section 170VQ(6)(b) overrides to the extent of any inconsistency an AWA that is time expired. But I don't know what is in those AWAs. I don't know that by setting them aside the Commission won't be depriving employees of rights that are not inconsistent with the terms of the certified agreement.

PN31

I would not be able to find that it is not contrary to the public interest to terminate those agreements until I was satisfied that the employees had been notified of the hearing and had an opportunity to present any argument that they wanted to either in support of setting them aside or opposing them. So for that reason I am not prepared to accede to the employer's application today and I will adjourn this application to a future date. Perhaps we might just go off the record and sort out that future date.

OFF THE RECORD

PN32

THE SENIOR DEPUTY PRESIDENT: I have had a discussion with the parties about programming and I will re-list the application for termination of AWAs matter C2001/4951 at 10.15 am on Monday, 5 November in Melbourne. The employer is to notify each person who's AWA is sought to be set aside and to provide proof to the Commission of that notification. Thank you.

ADJOURNED UNTIL MONDAY, 5 NOVEMBER 2001 [12.17pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 LETTER DATED 12/09/2001 PN24
EXHIBIT #CPSU2 LETTER DATED 28/09/2001 PN25