AG2001/6697, Transcript of Proceedings [2001] AIRCTrans 3259 (28 November 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/6697

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by New Horizons Enterprises Limited for
certification of the New Horizons Enterprises
Limited (Supported Employees) Certified
Agreement 2001

AG2001/6698

APPLICATION FOR DETERMINATION OF
DESIGNATED AWARD

Application under section 170XF of the
Act by New Horizons Enterprises Limited for
determination of New Horizons Enterprises
Limited (Supported Employees) Certified
Agreement 2001

SYDNEY

11.35 AM, MONDAY, 12 NOVEMBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: I'll take the appearances, please?

PN2

MR P. AMOS: I am from Practical Workplace Relations, I act as an agent for New Horizons Enterprises Limited. With me I have MR S. KINKEAD, the employer representative and MR J. BURT, the employee representative. I must apologise, your Honour, the person that signed the statutory declaration, Judith Matthews, is unable to be here today to represent the employer. She has a personal matter in Victoria that she needs to attend to today so unfortunately she was unable to attend. Thank you.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, well, leave to appear is granted, Mr Amos. Would you like to go ahead, please.

PN4

MR AMOS: There's two matters we need to deal with here, your Honour. Firstly, the designated award under section 170XF(2). On our last occasion we met for the certification of a similar agreement to this which was the Lasercraft Agreement, you indicated that you were unsure whether the designated award that we made application to the Commission to have proclaimed, you were unsure whether that was the designated award. At that point in time you said that you would consider it and we haven't received any thoughts one way or the other so that's the reason why we're going down the road to submitting the designated award again.

PN5

THE SENIOR DEPUTY PRESIDENT: I thought I had dealt with that matter.

PN6

MR AMOS: You dealt with the matter but you said - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, but I thought I'd determined it.

PN8

MR AMOS: I think if my memory, if I can recall, that you said that even if it wasn't a designated award, it would have no effect on the agreement anyhow.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, I think that I've actually disposed of that matter in a more formal sense. I don't know it hasn't reached you. We'll check that out. Thank you for bringing it to my attention.

PN10

MR AMOS: We still believe that the designated award is the Australian, Liquor, Hospitality, Miscellaneous Workers Union Supported Employment Business Services Award 1993 and we would ask that the Commission exercise its powers and use that award as the designated award for the certification of this agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: I'm a bit more familiar with the scenario now than I was on the last occasion. How do you describe the award?

PN12

MR AMOS: The Australian, Liquor, Hospitality Award was an award that was brought in back in 1993 to deal with the business services or for want of another word, the sheltered workshop industry and it used the supported wage system to determine wages and in reality it was more designed for people that were moving into an open employment situation where they needed to have their productivity assessed which differs from the type of industry we're working with here which is an industry that has people with disabilities which require a lot more supervision and their level of disability is much higher than the person that would be moving into open employment.

PN13

THE SENIOR DEPUTY PRESIDENT: My associate tried to locate the award. There's an award called the Australian Liquor Hospitality and Miscellaneous Workers Union Supported Employment (Enterprises) Award 1993.

PN14

MR AMOS: Well, it has always been known as Business Services but it could be enterprises, I am not quite sure.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, but there is only one that you are aware of, is there?

PN16

MR AMOS: There is only one that I am aware of.

PN17

THE SENIOR DEPUTY PRESIDENT: I am sorry, I am corrected, it is Business Enterprises Award rather that Business Services Award.

PN18

MR AMOS: It could be Business Enterprises, I apologise for that.

PN19

THE SENIOR DEPUTY PRESIDENT: I am just looking through the agreement again because there is a reference in the agreement to the award, I am just trying to pick that up. Do you know which clause of the agreement we could find that in?

PN20

MR AMOS: It is in number 3, application of the awards on page 2, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, and that is properly described as the Business Enterprises Award 1993.

PN22

MR AMOS: I must apologise for that, your Honour, it is a typo on my behalf.

PN23

THE SENIOR DEPUTY PRESIDENT: Well, what I will do is I will designate the Australian Liquor Hospitality and Miscellaneous Workers Union Supported Employment Business Enterprises Award 1993 as the appropriate award for the purposes of determining whether or not the New Horizons Enterprises Limited Supported Employees Certified Agreement 2001 passes the no disadvantage test.

PN24

MR AMOS: Your Honour, this is an application for the certification of an agreement known as the New Horizons Enterprises Limited Supported Employees Workplace Agreement 2001. The application is under section 170LK division 2 of the Workplace Relations Act 1996 for the certification of an agreement between an employer and their employees. All relevant documents required by the Commission for the making of an agreement were forwarded to the Commission with the application. Those documents included the agreement document, there was four copies signed by the parties bound by the agreement and a statutory declaration signed by Mrs Judy Matthews, the Human Resource Manager of New Horizons.

PN25

Your Honour, I am not quite sure whether you want me to go into the detail that I did on my last occasion with Laser Craft in relation to the type of industry. I think that if you - - -

PN26

THE SENIOR DEPUTY PRESIDENT: I think you should summarise it at least.

PN27

MR AMOS: All right. New Horizons Limited is a non profit organisation partially funded by the Department of Family and Community Services which is a Federal Department and the commercial activities undertaken by the organisation. As mentioned in the preamble of the agreement, it is acknowledged that New Horizons is an organisation that as a general rule does not operate pure employment services in the strictly commercial sense for people with a disability. The organisation operates in an employment like environment in which a range of additional support services are provided including vocationally related training, work experience and in some cases, assistance to progression to open employment. That is the ultimate goal of these organisations to try and place their employees into open employment situations.

PN28

In that situation that is where the supported wage system would be used. The primary relationship that exists between the New Horizons and its employees with a disability extends that which is generally expected in employee/employer relationship. It is further acknowledged that this primary relationship will and does have a direct impact on the operational costs of the organisation in the services provided to people with a disability. Furthermore the terms and conditions of employment and the wage rates contained in the agreement, those wage rates are directly related to the productivity and the level of disability of each employee.

PN29

The organisation employs both people with a disability and people without a disability. There are 58 people with a disability employed by the organisation and covered by this agreement. Of the 58 employees the majority have been assessed to medium to high dependent needs and in some cases a one on one supervision by people without a disability is required. As you can understand, the cost of providing such supervision cannot adequately be met by the department's funding and therefore must be subsidised by the commercial activities of this organisation.

PN30

In making the agreement the organisation took into consideration the Department of Family and Community Services content of a draft report formulated and compiled by KPMG and I forwarded a copy of that particular report to you on the last occasion at your request. The aim of the business service review was to identify strategies that would ensure the business services in the disability service industry are able to meet these requirements and continue to provide a valuable and viable option for people with disability.

PN31

I won't go any further into that area other than to say that this particular agreement is very, very similar to the one that was presented to you last time from Laser Craft.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, I did notice that.

PN33

MR AMOS: I might also say, your Honour, this particular agreement is one of 12 that I am current in the process of doing for services throughout the Sydney Metro area. This is the second such agreement of that group to be certified. I have another two listed in front of Senior Deputy President Drake in two weeks time, which is also a similar agreement.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, I am interested to know how the explanation of the agreement was given to the people affected and how it can be said that they genuinely approve the agreement I have of the statutory declaration, I'd like that amplified a bit if you would Mr Amos.

PN35

MR AMOS: Your Honour, obviously it's a very deistical task in some situations to communicate with people with high disability and in some cases a number of these employees find it very difficult just to communicate. The organisation undertook quite extensive training program a similar training program that they would implement in the organisation to undertake any other sort of training work task type training. It was generally as the training process went on it was generally accepted that the employees had an understanding of the process, what an agreement was about and certainly the terms and conditions of their employment.

PN36

THE SENIOR DEPUTY PRESIDENT: What's the nature of the training process, Mr Amos?

PN37

MR AMOS: It may be an opportune time for Mr Kinkead to actually go into that in more detail. He was the one that was involved in implementing and certainly putting the training in process and program in place so, he may be able to elaborate a little bit more.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, I'll hear from Mr Kinkead on that.

PN39

MR KINKEAD: What we basically did was group employees into sets of seven groups, those groups were around comprehension mainly different types of comprehension and therefore, we were able to have a group meeting which was pointed toward the people there. So, for example, we had maybe eight people in this group and the schedule when the training would be held each week and how long each week and so forth.

PN40

As part of that process we did several things depending on the comprehension levels we either had pictures or the written word and spoke a word, a lot of revision for example, on meeting training session number three we'd revise what we did at one and two so, it kept the whole process going. We also invited parents, carers, advocates those type of people to come, some did.

PN41

THE SENIOR DEPUTY PRESIDENT: Some did?

PN42

MR KINKEAD: Some did and we also at the same time had sent - had given to every employee a copy of the agreement and encouraged them to take that home and discuss it with whoever they did it with and we had feedback on the phone from some of those parents, carers, advocates about the issues. So, the process was reinforcement of what we'd done previously pitched at the level of comprehension we thought that group of employees would be appropriate by group of employees and constant revision.

PN43

We also did mock voting with the voting process take place we did mock voting as well. We kept a schedule of the people who attended each session, we had training modules for example, module number - on 27 and 29 June the module those three days with the unions, employee representatives, award and certified agreements in a generic sense. Then, later on 25th, 26th, 27th July the module there was on section 6 and 7 of the agreement. So, we broke the agreement down into bits that we could manage so, in other words we didn't start on page 30 all in one go they couldn't handle that.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. I noticed that the agreement is fairly complicated it's not a simple agreement.

PN45

MR KINKEAD: No, we did have a plain english version though as well.

PN46

THE SENIOR DEPUTY PRESIDENT: Did you.

PN47

MR KINKEAD: Yes, we had a plain english version which took for example, a section of the agreement and just said in one line what it was all about so, the plain english version, the official version, the pictures, the overheads, the sort of thing we did we had like what is a meeting. So, we had a picture of people sitting around at a table in a meeting and so, we did it we tried to picture particularly to the peoples comprehension levels. It is a complex agreement I guess that's the future of the law I suppose.

PN48

THE SENIOR DEPUTY PRESIDENT: Well, I've seen far simpler agreements if Mr Amos might give some consideration to simplifying the mock in the next round. They don't necessarily have to be written in complex language and you might give consideration to a more plain english language version agreement on the next occasion. Yes?

PN49

MR KINKEAD: Is that okay?

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Thank you, Mr Amos.

PN51

MR AMOS: Thank you, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: I know what I said is easy to say and probably hard to do but it is of concern to me to ensure that the people who voted in favour of it genuinely approved it and my suspicion is that although there may have been genuine approval of the agreement the understanding of the agreement comes from it being explained to the people rather than any ability by them or many of them to actually understand what the words on the paper mean and if that can be simplified it might increase the perception but having given you that gratuitous advice please go on.

PN53

MR AMOS: Thank you, your Honour. Your Honour, the negotiations of the agreement commenced in around mid 2000 and the employees all acted as individuals so, the negotiation was with one person representing the employees and that's the reason why there is no statutory declaration from an employee representative.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN55

MR AMOS: During the voting process the employees also were asked to nominate a representative to sign the document on their behalf obviously, to have each employee sign the document was quite a major operation. Some of these employees do not know how to write and can't write their own name so, it's much better if we went down that path so that's what we did. The content of the agreement basically formalises and consolidates the terms and conditions already enjoyed by employees into one complete document.

PN56

I guess that's the reason why the employees had a better understanding of what the agreement was about because they'd been working with those terms and conditions for a long period of time and there was no changes basically to the terms and conditions of their employment rather the only changes were to the way that the employees were assessed against their productivity in the skills that they had.

PN57

Previously that hadn't been done on a couple the organisation had used the state jurisdiction slow worker permits on a couple of occasions and I understand that they also had Australian workplace agreements in place with other employees. Not certainly people with a disability but other employees. So, the agreement only formalises what they're already doing. The agreement will operate for a period of one year from the date of certification and I refer you to clause 1.5 the date and period of operation.

PN58

The reason it's only one year is that during that period the organisation intends to refocus on providing more detailed and comprehensive competency and productivity based wage structure for determining the wages. They will be linked to key performance indicators which will identify the productivity levels rather than I think, on my last occasion I suggested that the supportive wage system was a time and motion study and that the organisation didn't intend to go down that path they would much prefer to have a person assessed on their productivity based on key performance indicators rather than assessing a person's productivity at a point in time knowing full well that from time to time these types of employees and I guess, any employee has a good day and a bad day and their productivity level could go up or down depending on what sort of day it is.

PN59

The clause 4.1 remuneration is contained in schedule A and those rates have been established taking into consideration the rates of pay paid to employees prior to the agreement and the organisation will pay its employees at the most appropriate rate relevant to their pre agreement rate, their capability and their skill mix having regard to the fact that no employee shall be paid less than they would have under the agreement.

PN60

THE SENIOR DEPUTY PRESIDENT: Prior to the agreement.

PN61

MR AMOS: Sorry, prior to the agreement, that's correct. They also are looking at the productivity of the employees with a disability certainly, the maintenance of current and future employment levels with people with a disability. The worst thing that could happen to an organisation like this is to have a situation where they've got to make somebody redundant because of wage level structures that would make it unviable to operate. So, they take that all into consideration.

PN62

The inherent obligation on the organisation to provide employment for people with a disability no matter how severe the disability may be or how productive or non productive the employee may be to generate an income. In some cases some employees are non productive and there is no measurable productivity from these people but certainly they also attract a wage the same as any other employee that's just the nature of the industry.

PN63

The agreement provides wage increases during the life of the agreement and that's contained in clause 4.2 and those wage increases will be on a pro rata basis based on the national wage case decision as determined and granted by the Australian Industrial Relations Commission from time to time. The agreement also at clause 7.1 provides a dispute mechanism which the mechanism is designed to firstly, settle disputes inhouse and if all avenues of settlement through the normal inhouse channels have failed then either party may refer the matter to the Australian Industrial Relations Commission for conciliation and ultimately, arbitration.

PN64

We feel that the agreement does not disadvantage employees on balance with the terms and conditions of employment contained in the designated award. The statutory declaration provided with the application meets all of the requirements of the Act of making an agreement and at clause 5.1 it specifies the steps taken by the employer to give all employees whose employment would be subject to the agreement reasonable opportunity to decide whether they wish to make the agreement or not.

PN65

We would ask the Commission to exercise its power pursuant to section 170LT(3) of the Workplace Relations Act 1996 and certify the agreement known as the New Horizons Limited Supported Employees Certified Agreement 2001. This would ensure the continued viability of the organisation. It would enable the organisation to provide continued and future employment for people with a disability. It certainly would meet its legal obligations to provide employment conditions comparable to those for people without a disability and it certainly complies with the reform agenda implemented by the Department of Family and Community Services regarding employment for people with a disability. Thank you.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Amos. Does anybody else at the bar table wish to say anything in relation to this matter?

PN67

MR BURT: I am happy with the award.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Burt. Mr Kinkead?

PN69

MR KINKEAD: Thank you.

PN70

THE SENIOR DEPUTY PRESIDENT: You are supporting the application as well, I take it?

PN71

MR KINKEAD: Yes. One point I would make actually in addition to what Mr Amos said, in addition to nobody being worse off under this proposal there is actually a considerable number of them better off. Probably two-thirds of the employees will get a pay increase out of this certified agreement.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. Having read the statutory declaration of Judith Anne Matthews in support of the application for certification and having read the certified agreement as well as having heard from the parties this morning, I am satisfied that the requirements of the Act have been met. I have already indicated that I designate the Australian Liquor Hospitality and Miscellaneous Workers Union Supported Employment Business Enterprises Award 1993 as the award to determine whether or not the agreement passes the Notice Advantage Test.

PN73

Although I am unable to determine because of the differences between the award and the agreement whether the agreement does pass the Notice Advantage Test when compared with that award, nevertheless I am satisfied that certifying the agreement is not contrary to the public interest and accordingly the agreement is taken to pass the Notice Advantage Test under section 170LT(3). The agreement is about matters pertaining to the relationship between an employer that is a constitutional corporation that carries on a single business and employees employed by the employer in that single business.

PN74

I am also satisfied that the agreement was made in accordance with section 170LK of the Act and that a valid majority of persons affected genuinely approved the making of the agreement. I am satisfied that the explanation of its terms was appropriate having regard to the particular needs and circumstances of the people involved. The agreement includes procedures for preventing and settling disputes between the parties and it specifies a date one year from the date of certification as the nominal expiry date and that will be today's date.

PN75

I am also satisfied that there are no reasons in section 170NU of the Act as to why I should refuse to certify the agreement. Accordingly, the agreement will be certified to operate in accordance with its terms from the beginning of the first pay period on or after today's date. Thank you for your attendance.

ADJOURNED INDEFINITELY [11.58am]