AG2001/6665, Transcript of Proceedings [2001] AIRCTrans 3244 (26 November 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 1149
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/6665

APPLICATION TO TERMINATE AN AGREEMENT
(PUBLIC INTEREST)

Application under section 170MH of the Act
by The Australian Municipal, Administrative,
Clerical and Services Union to terminate
the Bass Coast Care Work Team Agreement 1997

MELBOURNE

11.02 AM, THURSDAY, 8 NOVEMBER 2001

PN1

MR B. MILLER: I appear together with MR S. NICHOLL on behalf of the Australian Services Union.

PN2

MR G. KATZ: I seek leave to appear on behalf of Bass Coast Shire Council. With me is MR J. WYNEN, Organisation Development Manager, and MS J. DRAPER, Aged and Disability Services Manager.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Miller, what is your attitude to Mr Katz's application for leave to appear as counsel?

PN4

MR MILLER: We do not oppose it, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted, Mr Katz.

PN6

MR KATZ: Thank you, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Miller, what is this all about?

PN8

MR MILLER: Thank you, your Honour. Your Honour, the ASU has applied to terminate the Bass Coast Care Work Team Agreement 1997 under section 170MH of the Workplace Relations Act 1996. Your Honour, the Act provides that after the nominal expiry date of a certified agreement either (a) the employer or (b) a majority of employees covered by the agreement or (c) a union bound by the agreement and has at least one member covered by the agreement may apply to terminate the agreement, section 170MH(1).

PN9

Your Honour, the Act also provides that on receiving the application the Commission must take appropriate steps to obtain the views of persons bound by the agreement about whether it should be terminated and having done so must, by order, terminate the agreement unless it considers that it is contrary to the public interest to do so. Your Honour, I take this opportunity, if I may, to hand up a copy of the local work area agreement.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you. That is print P5319.

PN11

MR MILLER: Your Honour, we say the requirements are fulfilled by our application. Firstly, the agreement has passed its nominal expiry date. The nominal expiry date in fact was 3 March 1999. Secondly, your Honour, the ASU is bound by the agreement and we refer his Honour to clause 5 of the agreement and we say the union has the standing to make the application to terminate the agreement required by section 170MH(1) and that case law is clear that applications can be terminated on application by one party. And we refer to print P8872, a decision of the Full Bench re Federal Airports Corporation dated 18 February 1998.

PN12

Your Honour, the ASU has members employed under the terms of the agreement who support the termination of the agreement and we refer to the statutory declaration of the Branch Secretary, Mr Darrell Cochrane, dated 26 October 2001, which states that he has been satisfied that a greater majority of our members employed under the terms of the agreement have resolved to support the termination of the agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: He doesn't say how he is satisfied does he?

PN14

MR MILLER: No, your Honour, but it was on the basis of a conversation that I had with him where we had conducted a poll of staff and the majority of our members responded back in writing that they supported the union seeking the termination of the agreement. Well, given these facts, your Honour, the only remaining issue, as indicated by the Act and the case law, is whether the Commission considers it contrary to the public interest to terminate the agreement, if not the Commission must terminate the agreement.

PN15

The grounds on which the union makes this application on behalf of its members are as follows. The nominal expiry date of the agreement has long ago passed, your Honour, in fact, approximately three years. And attempts by the union to negotiate a new agreement have been rebuffed by the employer. Just to elaborate on that, your Honour. We go back to February 2000 where the organiser responsible for Bass Coast Shire, Mr Nicholl, approached the council in relation to local work area agreements which had, or were about to expire at the time seeking discussions with council. That was in February 2000.

PN16

In October, or actually on 10 October 2000 Mr Nicholl again wrote to council in relation to the home and community care local work area agreement proposing negotiations for renewal and proposing changes to that document. And as far as I am aware those discussions didn't go any further at that point in time. On 13 November 2000 the Branch Secretary wrote to the Chief Executive Officer expressing concerns about the fact that negotiations were not taking place and sought a meeting and suggested a meeting date to progress matters.

PN17

On 14 November the Chief Executive Officer responded rejecting the meeting date as he was unavailable at that point in time. We then move forward to 1 February 2001, your Honour. Mr Nicholl again, in correspondence, expressed concern to the council that after three meetings with council's officers there has been no progress in the negotiations for a new document or a new certified agreement and advised them that if there was no further co-operation or there was to be no co-operation from council he would seek to terminate the agreement.

PN18

He also advised at that point in time, your Honour, that there was a change in organisers responsibility for Bass Coast Shire and it was at that point in time I, myself, became the organiser responsible for Bass Coast Shire. I then wrote on 16 February 2001 in response to Mr Nicholl's correspondence of 1 February and advised the council that we were concerned at the lack of progress and advised the council that if they didn't immediately respond favourably we would seek termination of the agreement.

PN19

The Chief Executive Officer responded on 25 February indicating, broadly, that in his view the local work area agreement continued to apply and that there was no necessity to negotiate another document. The union then met with staff and its members on 7 March and from that meeting we were directed to pursue termination of the agreement. Accordingly, we briefed our solicitors and they wrote to council on 2 May advising council of the requirements of the Act.

PN20

The Chief Executive Officer responded on 7 May indicating, in his view, the local work area agreement was current and they were not prepared to move but did invite the union to meet with either himself or the Manager of Organisational Development, Mr John Wynen. I met with Mr Wynen on 9 May in conjunction with our shop steward and he advised me that the position put forward by the union's solicitors was our interpretation of the Act and they disagreed with that interpretation.

PN21

I asked if he had sought legal advice at that point in time on the correspondence from our legal advisers and his response was, no, and his belief was that their interpretation was correct that the document was still operative and there was no need to pursue legal advice. Your Honour, we then again surveyed staff in August and were advised again by staff to pursue the termination.

PN22

Your Honour, an enterprise agreement covering all employees at the Bass Coast Shire Council has been negotiated, agreed and certified since this agreement passed its expiry date and I would seek to tender a copy of that enterprise agreement, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. That is the Bass Coast Shire Council Enterprise Agreement 1999, print S0374.

PN24

MR MILLER: Your Honour, care work team employees voted on the terms of the 1999 enterprise agreement and we believe they should be covered by the terms of the agreement and the award, not the expired 1997 work team agreement. The enterprise agreement does not continue the operation of the 1997 work team agreement, it provides only for future or further agreements and local work area agreements to be negotiated and the 1997 agreement clearly does not fall into that category.

PN25

It is likely, if not absolutely certain, that legally the 1997 agreement has been superseded by the 1999 agreement by virtue of the operation of section 170LX(2) of the Act which provides that an agreement ceases to be in operation if its nominal expiry date has passed and it is replaced by another certified agreement. Employees covered by the 1997 agreement voted on the 1999 agreement and have had some benefits of the 1999 agreement paid to them. The employer claims not to agree that the 1997 agreement has been superseded and continues to apply its terms.

PN26

To avoid doubt the 1997 agreement should be terminated. There is case law to support this as a grounds for terminating an expired agreement. In any case the employer is seeking to obtain an unfair benefit by continuing to rely on the terms of an expired agreement while refusing to agree to either a new agreement or to be covered by the 1999 agreement. This is unfair and an unestablished grounds for - and established grounds for terminating an expired agreement.

PN27

Members consider that the 1999 agreement and the 1991 award are the appropriate instruments to cover them and the reasons for the 1997 agreement have long passed and it is no longer appropriate. Your Honour, the main issue in considering the termination of an expired agreement once the Commission is satisfied about the preliminary issues is the question of public interest. The public issue test is fairly general and has been defined as follows.

PN28

The public interest is a broad concept and embraces considerations beyond the interests of the immediate parties before the Commission. Where the public interest lies will often depend on a balancing of interests and be very much a question of fact and degree. The whole of the circumstances must be weighed in order to determine where the public interest lies in particular matters. And we refer to the decision of Munro J re Joy Manufacturing, print T1133, dated 25 September 2000.

PN29

Your Honour, these are general principles but from the case law the following principles, we say, may be determined. (a) Certainty of application of agreements where conflicting agreements may apply. And (b) how much the agreement is out of date. (c) Genuineness of attempts to reach agreement on new agreements. (d) Fairness in relation to industrial rights, interests and protection of the parties. (e) Consequences of terminating the agreement, and (f) whether there are other public interest or issues at stake.

PN30

Your Honour, the ASU submits that there is uncertainty about the operation of the 1997 agreement and the later 1999 agreement. It is more than likely that the 1997 agreement has ceased to have legal effect and to avoid doubt the 1997 agreement should be terminated. The agreement-making provisions of the Workplace Relations Act are designed to encourage agreement-making on a fair and equitable basis. It is against the intention of the Act and, therefore, against the public interest for employers to rely on the terms of outdated agreements by refusing to negotiate new ones.

PN31

The bargaining position of the parties should be equalised by terminating the 1997 agreement. We say employees under the terms of the 1997 agreement are at a significant disadvantage compared to other employees of the Bass Coast Shire Council. This is unfair and not in the public interest. There are other appropriate industrial instruments to cover these employees, including a current enterprise bargaining agreement and an underpinning award, and in the absence of any other recent local agreement the 1999 agreement should be preferred.

PN32

THE SENIOR DEPUTY PRESIDENT: What is your submission as to whether or not the people concerned could take protected industrial action? Could initiate a bargaining period and take protected industrial action?

PN33

MR MILLER: I do not believe that they can at this point in time, your Honour, because there is an operational certified agreement.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR MILLER: The 1999 enterprise agreement.

PN36

THE SENIOR DEPUTY PRESIDENT: Which expires at the end of this year.

PN37

MR MILLER: Yes, it does, your Honour. And at that point in time, yes.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN39

MR MILLER: The local work area agreements, your Honour, were created to support competitive tendering under previous Victorian Government policies. And these policies have been abolished and replaced by new policies which do not require local work area agreements and the 1997 agreement is no longer required. Other Bass Coast Shire Council employees work under terms of the 1999 agreement without local work area agreements.

PN40

Other local governments have replaced local work area agreements with council-wide enterprise bargaining agreements and termination of this agreement will not set a precedent elsewhere or cause public interest issues elsewhere in local government or generally. In summary, your Honour, the ASU submits that it is not contrary to the public interest to terminate this agreement. On the contrary, we say it is in accordance with the public interest that this agreement be terminated and the Commission is asked to do so. If the Commission pleases.

PN41

THE SENIOR DEPUTY PRESIDENT: Well, just before you resume your seat, what is it about the agreement that you don't like? What terms of it are unattractive to your members at this stage?

PN42

MR MILLER: The hours of duty, your Honour. The hours of duty within the award or the spread of hours within the award is a 12-hour spread. This agreement increases that spread of hours to 15 hours from 6 am to 6 pm to 6 am to 9 pm, which reduces their ability to earn penalty rates. The penalty rates have been reduced from the award. There is no double time. Penalty rates apply only at time and a half.

PN43

Members under the award who travel from client to client receive paid time. In the employer's employ while travelling from client to client this is not paid. The casual leave loading has been reduced from 20 per cent to 15 per cent. Very unusual. I have never seen it before, your Honour, where our members, in fact, receive paid leave entitlements. Sick leave entitlements, but not leave entitlements. There are a number of other issues that just don't come to mind at the moment, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR MILLER: But it severely disadvantages our members in relation to the award, and it was done for competitive tendering and it is no longer required.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN47

MR MILLER: Thank you, your Honour. Oh, I beg your pardon, your Honour, it also goes to a seven-day spread for delivery of services, rather than a five-day spread, Monday to Friday. And in relation to the payment for mileage for the hire of vehicles, the award indicates that they will be paid from their first client to the last client. This agreement requires 30 kilometres to be removed from that before they receive any mileage payment for the hire of their vehicle. If the Commission pleases.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Katz, what is the council's attitude?

PN49

MR KATZ: Thank you, your Honour. Your Honour, firstly, I should indicate that we certainly did not come ready today to run this case, the substantive arguments. We submit that these matters are usually conducted by way of directions first whereby the applicant is required to file witness statements by a certain date, the respondent has to file witness statements and then the applicant has to file legal submissions and then the respondent has to file legal submissions.

PN50

The issues are very complex. There is a lot of both factual and legal issues to be determined. And your Honour, I point to the identical application brought by the union and the Whitehorse City Council to terminate a Whitehorse City Council Local Area Workplace Agreement which was brought earlier this year. It was listed before Commissioner Simmonds and those precise directions were issued and the case, in fact, and eventually the matter was resolved between the parties.

PN51

But in that case there were comprehensive witness statements prepared by both sides, so both sides could understand each other's arguments both from a factual point of view, evidentiary point of view and also from a legal point of view as well. In fact, Maurice Blackburn Cashman ran the case for the union and Clayton Utz ran the case for Whitehorse City Council. And we certainly would submit that the nature of this application is - there are so many serious issues to be tried that the most appropriate way of presenting this case would be by way of detailed witness statements and legal submissions.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, you are going to tell me what those serious issues are, Mr Katz.

PN53

MR KATZ: Yes, your Honour. Well, firstly, it is argued by the union that the certified agreement, the 1999 certified agreement which has been handed up to your Honour, the Bass Coast Shire Council Enterprise Agreement replaces the Local Area Workplace Agreement, which has expired. That is the one that was certified on 22 September 1997. We say it does not as a matter of law.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, if it does as a matter of law, there is really no argument. It is only a matter of clarifying it.

PN55

MR KATZ: Yes, yes, of course, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes.

PN57

MR KATZ: Yes, we say it does not because we say paragraph 5 of the enterprise agreement refers - says 5A it says - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Of the - let us just be specific, which agreement? That is the - - -

PN59

MR KATZ: This is the - sorry, the enterprise agreement 1999.

PN60

THE SENIOR DEPUTY PRESIDENT: The '99 agreement.

PN61

MR KATZ: Yes.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR KATZ: The overreaching EBA.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR KATZ: 5 says:

PN66

This agreement replaces the Bass Coast Shire Council Enterprise Agreement 1996 and this agreement shall be read and interpreted wholly in conjunction with the Victorian Local Authorities Interim Award 1991, the award, and the Nurses ANF Victorian Local Government Award 1993.

PN67

It does not refer to the Bass Coast Local Area Work Agreement and if it had intended to replace that agreement it would have stated so.

PN68

THE SENIOR DEPUTY PRESIDENT: But doesn't it operate by force of the Act to supersede any expired agreement?

PN69

MR KATZ: Well - - -

PN70

THE SENIOR DEPUTY PRESIDENT: Well, that is what you want to argue.

PN71

MR KATZ: Yes, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes.

PN73

MR KATZ: We say that if had been intended to replace the local area workplace agreement which in fact was entered into and certified in accordance with the overreaching enterprise agreement, then it would have actually stated so. And it was not intended between the parties, we say, that that LAWA for want of a - being a shortened expression for Local Area Workplace Agreement be terminated.

PN74

And in fact, it continued to be in operation, as I understand, the evidence will be that there was no discussion at the time of entering into and certifying the Bass Coast Shire Council Enterprise Agreement 1999 that the local area workplace agreement be replaced. In fact, the LAWA continued to be in operation and be accepted by all the parties beyond the certification of this enterprise agreement.

PN75

THE SENIOR DEPUTY PRESIDENT: Well, that may well be a question of law as to whether section 170LX(2) by force of its provisions means that the local area workplace agreement has been replaced or not.

PN76

MR KATZ: Yes, your Honour, we say that it stands alone and that it was only intended to replace the overreaching Bass Coast Shire Council Enterprise Agreement 1996 and not the separately certified LAWA.

PN77

THE SENIOR DEPUTY PRESIDENT: And you want to present submissions on that.

PN78

MR KATZ: Absolutely, and evidence on that as well, your Honour. Your Honour, I should just also state - - -

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. What sort of evidence, Mr Katz?

PN80

MR KATZ: Well, certainly evidence about the circumstances leading to the enterprise agreement 1999 being entered into, and also how the local area workplace agreement has actually operated since its nominal expiry date.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes.

PN82

MR KATZ: And how the contract, the so-called contract for the delivery of home care services how that has expired and has continued to operate and how the council has approved the extension of that contract with the approval of the staff. So they have continued to be satisfied to operate under the local area workplace agreement.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I am a bit sceptical as to how much of that goes to the legal position.

PN84

MR KATZ: Yes.

PN85

THE SENIOR DEPUTY PRESIDENT: But we will leave that for another day perhaps.

PN86

MR KATZ: Yes, your Honour. The other thing is, we have not been served with the statutory declaration of Darrell Cochrane on 26 October. So I would just like to place that on record. So we don't know what exactly he said, but if Mr Cochrane is indicating in that statutory declaration that the staff are in favouring of terminating the LAWA and going back to the award, we would dispute that, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: Mr Miller, do you have a copy of that statutory declaration to give to Mr Katz?

PN88

MR MILLER: I do, your Honour, but I think unfortunately I have left it in the book of my car. I will stand corrected, your Honour, but my understanding was that it was faxed through to Bass Coast Shire. I gave that instruction at our office and I believe it was done. I also gave the instruction that the employer be notified of today's hearing as per your directions, which was done.

PN89

MR KATZ: We know about today's hearing. It is just the stat dec that we don't have, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. Well, very well. Well, look, I will read the body of it on to the transcript, Mr Katz.

PN91

MR KATZ: Thank you, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: It is short. Mr Cochrane after identifying himself and so on say:

PN93

I have been satisfied that a greater majority of our members employed under the Bass Coast Care Work Team Local Area Work Agreement 1997, (C No 35840 of 1997) have resolved that they support the union seeking the termination of the above-mentioned LAWA for the following reasons:

PN94

1. Our members believe that as the nominal expiry date of the LAWA has expired, they should now only be covered by the award and the Bass Coast Shire Council Enterprise Agreement 1999, (C No 38063 of 1999);

PN95

2. Our members are of the view that the Bass Coast Shire Council EBA 1999, and the Local Authorities Interim Award 1991 are the appropriate agreement and award to cover them;

PN96

and:

PN97

3. The Bass Coast Shire Council Enterprise Agreement 1999, under clause 5 "Relationship To Parent Awards And Other Agreements" makes no reference to the Bass Coast Care Work Team LAWA 1997 having an ongoing role after the certification of Bass Coast Shire Council Enterprise Agreement 1997.

PN98

I end the quote there. There follow the formalities of the statutory declaration.

PN99

MR KATZ: Thank you, your Honour. Just as some - - -

PN100

THE SENIOR DEPUTY PRESIDENT: It was declared on 27 October this year, I might add.

PN101

MR KATZ: Thank you, your Honour. Just as some preliminary submissions I would like to make without going too deeply into them merit or otherwise the application, the Act section 170MH(1)(b) refers to

PN102

...majority of the employees whose employment is subject to the agreement.

PN103

As I understand it, Mr Cochrane may be referring to these members rather than the employees. And I should also, in that context, your Honour, I would like to place on the record that on 28 March of this year, there was a meeting between counsel - relevant counsel, management and 35 home care staff to discuss the contents of a draft LAWA which had been presented to the staff by counsel. That is a new LAWA. There has been to-ing and fro-ing regarding the negotiation of a new Local Area Workplace Agreement and this was the first draft that was presented to staff.

PN104

THE SENIOR DEPUTY PRESIDENT: How many employees are affected by this LAWA?

PN105

MR KATZ: We believe some 67, your Honour but only 35 met to discuss the draft Local Area Workplace Agreement. There was discussion at the meeting between relevant members of management and staff where staff required or wanted some adjustments to the draft which were agreed to by counsel verbally at that meeting. I am not quite sure if everything was agreed to but the substance of the variations were agreed to and were voted on and there was a unanimous vote by the members of staff that they accept the draft LAWA presented by counsel with the appropriate variations so one would see, your Honour, that that seems to be in direct contradiction to what Mr Cochrane is saying. Well certainly he is speaking for his members; I don't believe he is speaking for all employees so that would already seem to be a defect in support of this application. It certainly doesn't comply with section 170MHb and in fact the evidence points to the contrary, that the members - well, the employees may be in favour of terminating the current agreement but to replace it on the basis that it is replaced with an agreement which they find acceptable and which counsel finds acceptable and that is the basis upon which they would agree to termination of this agreement.

PN106

THE SENIOR DEPUTY PRESIDENT: The subtext of that submission is that I shouldn't accept the hearsay evidence of Mr Cochrane.

PN107

MR KATZ: Well that is exactly right, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: I understand.

PN109

MR KATZ: And your Honour, there are other matters which we could talk about or certainly we can submit, with respect, to rebut Mr Miller's submissions regarding public interest which I don't necessarily want to telegraph our punches at this stage, your Honour, but save to state that we believe - - -

PN110

THE SENIOR DEPUTY PRESIDENT: I think you will need to to some extent if you want these directions from me, Mr Katz.

PN111

MR KATZ: Yes. Your Honour, we say that it is - we will be arguing that it is not in the public interest that the Local Area Workplace Agreement be terminated for the simple reason that it would lead to - if the terms and conditions were brought back purely to the award and firstly the staff would lose other benefits provided by the Local Area Workplace Agreements and certainly other benefits which have been promised by the council in any new Local Area Workplace Agreement.

PN112

THE SENIOR DEPUTY PRESIDENT: Now Mr Katz, did you deliberately refer only to the award and not the 1999 certified agreement?

PN113

MR KATZ: Yes and it appears from the application that there was - we certainly had some mixed signals. It appeared from the application that Mr Miller was maybe suggesting - or from prior correspondence suggesting a reversion to the award rather than the EBA - - -

PN114

THE SENIOR DEPUTY PRESIDENT: As I understood Mr Miller's submission, he says that the legal position is that the 1999 certified agreement, with the award, govern the terms and conditions of employment of these people and that it is desirable that the Local Area Work Agreement be terminated to provide that certainty so that as I understand his submission, there is no suggesting that there be a reversion to the award alone.

PN115

MR KATZ: Yes.

PN116

THE SENIOR DEPUTY PRESIDENT: Is that correct, Mr Miller?

PN117

MR MILLER: That is correct, your Honour.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN119

MR KATZ: Thank you, your Honour. I was really referring to other correspondence which is not before your Honour which suggested that the union were arguing that it was just going to revert to award conditions but I am happy to resile with what Mr Miller is saying today. Your Honour - - -

PN120

THE SENIOR DEPUTY PRESIDENT: Would the effect be, as you have indicated, that staff would lose other benefits if there was a reversion to the award and the 1999 agreement?

PN121

MR KATZ: Yes, your Honour, absolutely. And apart from that, your Honour, the council would not be able to maintain existing services

PN122

to clients in the municipality. They would certainly not be able to provide after hours service or I am saying after hours after the hours - the spread of hours prescribed in the award. At the moment they have flexibilities with regard to spread of hours. They would not be able to provide that and they may actually lose the opportunity to provide services during the normal spread of hours to other competitors. This will lead to, as I say, reduction of service to an ageing population and may also - well obviously will also lead to, your Honour, a reduction in real wages to the staff because they will then not be able to be paid - or the hours will be reduced and therefore they would not receive that extra remuneration which the extra hours can bring and then of course if Bass Coast then lose the - if the clients go to other service providers well then it could theoretically lead to a reduction in the workforce.

PN123

Your Honour, the council view the decision of the home carers to maintain the existing LAWA, as I have referred to in that meeting, your Honour, with the changes requested by them to be in the best interests of the public for the following reasons. As I have mentioned, your Honour, 35 employees who attended that meeting in March to discuss the LAWA unanimously voted to retain the existing LAWA with modifications and the changes that were requested, your Honour, were an increase in the travel allowance, which has already been implemented, an increase in the sleep over allowance, an allowance for handling bodily fluids, spread of hours after seven pm and on weekends to be at the discretion of the employee and annual indexing of the travel time allowance.

PN124

Management has agreed to these variations, your Honour, and we actually sent a copy of the draft LAWA to the MEU for comment. We actually then prepared a new draft, picking up and incorporating these amendments but the MEU have said to us well they are just simply not interested in even looking at it.

PN125

Now a change to the spread of hours, your Honour, as proposed by the union, would incur six per cent reduction in service and therefore a decrease in employee hours. The council is a low socio economic area with 32 per cent of households receiving an income of less than $300 per week. Fifty per cent of home carers employed by the council are the sole income earners in their families. The majority of this group is women. A decrease in availability of hours would have a detrimental effect on the incomes for this group. Given this information, your Honour, the home carers require stable, regular work which is flexible so that they can plan their working hours to suit their family needs.

PN126

The council, with the support of the councillors and the CEO, provides a supportive working environment which allows all staff to have training and input into decision making and this philosophy is written into the corporate and business plans. The council has an above state average population of persons aged 65 years and over, therefore there is an ever increasing demand on home care services. This section of the population requires services that extend beyond nine to five pm. A change to the spread of hours would mean that services outside these hours would be curtailed, as I have already indicated, your Honour.

PN127

The demand for services has also led to the demand for a skilled workforce. The council is a leader in the industry in staff training. This has been demonstrated by the winning of training awards at a State and National level and the most recent award was the Victorian Community Services and Health Industry Training Award, open category, employer achievement in creating a learning culture and the council pays for all staff training.

PN128

Council also demonstrated a commitment to occupational health and safety with an appointment three years ago of an Occupational Health and Safety Officer for the home care team. There is only one other team in Victoria who has a paid OH&S officer for home carers. Training, I think, is one of the areas which the council provides as an additional benefit which is not provided for in the award and the EBA.

PN129

Your Honour, these sorts of arguments, we would certainly seek your Honour's indulgence in being given the opportunity of leading this sort of evidence by way of witness statements.

PN130

THE SENIOR DEPUTY PRESIDENT: How many people would you envisage calling, Mr Katz?

PN131

MR KATZ: I think three to four, your Honour and then again - - -

PN132

THE SENIOR DEPUTY PRESIDENT: Do you have any submissions as to how I should ascertain the views of the persons bound by the agreement under section 170MH2

PN133

MR KATZ: I was actually thinking about that, your Honour and I - - -

PN134

THE SENIOR DEPUTY PRESIDENT: Because I have to do that.

PN135

MR KATZ: Yes, I know you have to do that under the Act, your Honour, and in fact that is one of the things I was saying; if I hadn't said it already I was going to say that. Of course your Honour would have to first do that in considering this application but I am not quite sure - - -

PN136

THE SENIOR DEPUTY PRESIDENT: The union says that I can take Mr Cochrane's word for it as provided in his statutory declaration. If that wasn't contested I would probably do that.

PN137

MR KATZ: Yes. Well we would put in affidavit material on the views of the employees and then seek to call some of those employees as well if the affidavit material or the witness statements, I should say, were contradictory between the union's case and the council's case, then - and certainly, one would hope that that would be cleared up by sworn evidence under cross examination. If not, your Honour, then I suppose one of the ways one could do it, your Honour, is by secret ballot.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes, I was just about to ask you what is your view - - -

PN139

MR KATZ: Yes, would be the only other option, I would have thought.

PN140

THE SENIOR DEPUTY PRESIDENT: Well there are only 60 or so people involved. Why wouldn't the most appropriate way for me to ascertain the views of those people be to have a secret ballot conducted, asking whether they were in favour of terminating the Local Area Workplace Agreement?

PN141

MR KATZ: Yes. I think that would be the most appropriate and that might save a lot of time and trouble with regard to affidavits and what have you so one can implement that ..... of the Act, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: But you would want to lead evidence as to the other matters that you have indicated.

PN143

MR KATZ: Yes, your Honour. In fact we would say that yes, it is one thing just terminating it. It is not just an exercise in terminating for the sake of termination but what is it going to be replaced by? The union say that the staff want it replaced by the EBA and the award. We say the staff want it replaced by our draft Local Area Workplace Agreement which has already been accepted by the 35 staff that voted on it.

PN144

THE SENIOR DEPUTY PRESIDENT: But is that a matter for me? All I am concerned with is whether it should be terminated or not and not with what it should be replaced.

PN145

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

PN146

THE SENIOR DEPUTY PRESIDENT: I assume, without having thought it through, that any secret ballot - and I will hear you on this too, Mr Miller, of course, would purely be do you wish to have the agreement terminated.

PN147

MR KATZ: No, I won't even argue that it should go any further than that, your Honour. I think that is absolutely right and it is - the staff themselves will know what the consequence of terminating the agreement is but that is not a matter for your Honour; I thoroughly agree with your Honour.

PN148

THE SENIOR DEPUTY PRESIDENT: You would want to lead evidence that goes to the public interest, which is my only area of discretion.

PN149

MR KATZ: Yes. Yes, your Honour. And I think for those reasons, we would certainly seek appropriate directions from your Honour and certainly to enable both sides to have sufficient time to prepare their evidence and present the case in a proper, orderly fashion. Thank you, your Honour.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Katz. Mr Miller, before I ask you to reply generally, what do you say about how I should obtain the views of the persons bound by the agreement under section 170MH2?

PN151

MR MILLER: Well, your Honour, I think first of all you hit it on the head. We have a declaration by our Branch Secretary who has satisfied himself and we would stand on that. If your Honour is of the view that a secret ballot is to be run, we are not frightened of staff or our members being balloted because we have done this ourselves on two occasions and we believe we have received a very clear direction that we are to continue pursuing the path that we are pursuing at this point in time.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes. Well I think in light of Mr Katz' querying of the information provided by Mr Cochrane, I need something more than what is really hearsay evidence from a person who should know the views of his members, at least, but in light of the contest I couldn't be satisfied on the basis of that statutory declaration, I think, that a majority of the persons bound by the Local Area Workplace Agreement wish to have it terminated. We will work out how the views ought to be taken a little later but I am inclined to a secret ballot in light of the fact that there are only 60 or so people involved and that neither party opposes that course of action. We can work out the precise question to be asked a little later. What do you say about Mr Katz' request that I issue directions for the running of this matter?

PN153

MR MILLER: Well I mean, your Honour, we would obviously be concerned. We believe that the Bass Coast Shire has had plenty of time to prepare themselves. These discussions and negotiations have been going on for approximately two years now. We made our position extremely clear on a number of occasions. We were contacted by the Manager of Organisational Development earlier - or some days ago, asking what our position was today and we clearly advised the council that it was our position we were going to seek termination.

PN154

In relation to Mr Katz' reference to previous applications being resolved at the local level, we offered that document, the Whitehorse document, to the Bass Coast Shire as a compromise to work our way through it earlier before we took the firm stance of termination. That was rejected. The enterprise agreement has indicated it does apply to people now - these people. They are receiving the entitlements under this agreement in relation to salary increases and maintenance and we say quite clearly, 170LX is extremely clear.

PN155

THE SENIOR DEPUTY PRESIDENT: I think I am going to need submissions from both sides on that. I don't think it is as clear cut as you make it out to be although at first flush, what you say sounded right to me but that may not be the case and I certainly do need some submissions on that matter.

PN156

I do note that the application was made by the union on 24 October so it hasn't been sitting around for a long time. I am inclined to issue directions. I think that in light of the opposition by the employer to the application, the matter will need to be thoroughly canvassed and I think I would be assisted by witness evidence and submissions. The directions proposed by Mr Katz are fairly non-controversial sorts of directions that you put on evidence, they put on evidence, you put on submissions and they put on submissions. We will work out the timing of it and we will also incorporate into that the taking of a secret ballot. It may well be that during that time, if what Mr Katz says is correct and you - agreement in respect of that part of the single business can be achieved and an application for certification made and this may take a different course but that is something for the parties, of course, but that is something that can be considered.

PN157

MR MILLER: We are about to commence negotiations on the next enterprise agreement. It may be a vehicle to resolve the matter.

PN158

THE SENIOR DEPUTY PRESIDENT: Very well. Well why don't we go off the record and we will see if we can work out some dates and we will formalise that on the record.

OFF THE RECORD

PN159

THE SENIOR DEPUTY PRESIDENT: I have had some discussions with the parties about program and we have decided on the following directions to which each of the parties has indicated that it has no objection. The applicant is to file detailed witness statements upon which it relies by the close of business on 19 November of this year. The respondent is to file its detailed witness statements by the close of business on 29 November of this year. There is to be a secret ballot conducted by the Electoral Commission between 29 November and 6 December, the costs of which will be borne by the council. The question to be asked at that ballot will be in the form quoted:

PN160

Do you wish to have the Bass Coast Work Team Agreement 1997 terminated, yes or no.

PN161

The applicant will then file and serve its written submissions by 7 December and the respondent will file its written submissions by close of business on 14 December. The matter will be adjourned for hearing in Melbourne at 10.15 on 17 and 18 December.

PN162

Is there anything else before I adjourn the Commission, gentlemen?

PN163

MR KATZ: No thank you, your Honour.

PN164

THE SENIOR DEPUTY PRESIDENT: I adjourn the Commission on that basis.

ADJOURNED UNTIL MONDAY, 17 DECEMBER 2001 [12.04pm]