AG2001/7151, Transcript of Proceedings [2001] AIRCTrans 3534 (17 December 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 1523
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/7151

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Yarra Ranges Shire Council for the
certification of the Yarra Ranges Shire
Council Enterprise Agreement Number 3 - 2001

MELBOURNE

2.06 PM, FRIDAY, 30 NOVEMBER 2001

PN1

MR R. WALL: I am from the Victorian Employers Chamber of Commerce and Industry, representing the Yarra Ranges Shire Council. And appearing with me is MR P. WILSON from the Shire.

PN2

MS J. KARSLAKE: I appear for the Australian Services Union. Also at the request of Liz Cheligoy for the ANF.

PN3

MR D. COLLEY: I appear for the Australian Education Union.

PN4

MS J. BAULCH: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Who wants to address me first?

PN6

MR WALL: Thank you, your Honour. Your Honour, firstly on behalf of the Shire, thank you for bringing the matter forward. It is appreciated by all of the parties. Your Honour, this is an application for certification of the Shire's third enterprise agreement and we have submitted a statutory declaration from the Shire that has been completed by the Chief Executive Officer. We believe that the requirements of the Workplace Relations Act have been met. We would ask that the Commission certify the agreement today, with a nominal expiry date of 30 September 2003. Your Honour, there is one matter that I should draw your attention to.

PN7

The statutory declaration that has been completed by the Shire has a discrepancy when it is compared with the statutory declaration that has been completed by the Australian Services Union, at 7.3 - - -

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, I notice that. That is in relation to the no disadvantage test.

PN9

MR WALL: Yes, it is, your Honour. Yes.

PN10

THE SENIOR DEPUTY PRESIDENT: I noticed that.

PN11

MR WALL: Okay. Can I give you some explanation?

PN12

THE SENIOR DEPUTY PRESIDENT: On that - well, is there an explanation?

PN13

MR WALL: Yes. There is an explanation for that. It relates to the spread of hours being 6 am to 6 pm Monday to Friday.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR WALL: The Shire didn't see that as a disadvantage, or a reduction in the award conditions because the award itself actually provides that, by written agreement, by consultation and written agreement between the employer and the employees, the spread can be varied under the current award. But in any event though, we would submit that the employees who are affected by that are well and truly paid in excess of what they would be had they been paid in accordance with the award.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. I notice that it is only the ASU that took that to be a diminution in entitlements. The other unions didn't - or rather the other unions seem to take the same view as the employer. Yes. Thank you, Mr Wall.

PN17

MR WALL: Thank you, your Honour.

PN18

THE COMMISSIONER: Ms Karslake?

PN19

MS KARSLAKE: Senior Deputy President, I - the - on behalf of the ASU, we seek to support the application of the employer for the certification of the Shire of Yarra Ranges third enterprise agreement. We believe the agreement conform to the requirements of the Act, and overall that there is no disadvantage to any employee as against the award. The issue that was being raised by the employer with regard to the ordinary hours, the ASU has listed that as a possible disadvantage. Whilst we would consider that it is a moot point as to whether it is a disadvantage or not, I suppose just with an abundance of caution we sought to include that as an issue in the no disadvantage - - -

PN20

THE SENIOR DEPUTY PRESIDENT: But the advantages far outweigh it - far outweigh it I suppose.

PN21

MS KARSLAKE: Yes. Yes, certainly.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. And I take it that the ANF supports your submission.

PN23

MS KARSLAKE: Yes. We support their certification of this application. Thank you.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR COLLEY: If the Commission pleases, this is an application to certify an agreement. The Australian Education Union has supplied to your Associate prior to the commencement of these proceedings a statutory declaration under the name of Rosalie Kinson. That statutory declaration testifies that the requirements of the Act have been met. And the AEU supports certification of this agreement and the submissions made by the Shire Council before you this morning. In relation to the issue of the no disadvantage test, the award to which the AEU members are bound does not contain the same spread of hours referred to earlier. And that is why there is no diminution of entitlements recorded in our statutory declaration. If the Commission pleases.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Yes, Ms Baulch.

PN27

MS BAULCH: Yes. Thank you, your Honour. Yes, the Association also supports the certification of this agreement in the terms sought. Filed with the application is a statutory declaration prepared by the Association. That statutory declaration outlines how the various - the Association believes the various requirements for certification of agreements have been met, and on that basis that we request that you certify the agreement from today's date, with a nominal expiry date of 30 September 2003.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN29

MR WALL: Thank you, sir.

PN30

THE SENIOR DEPUTY PRESIDENT: Thanks. There are some clauses in this agreement that give me pause, a reason to pause before I certify it. It is a very union friendly agreement which is commendable, but do some of the clauses go a little bit beyond what is permissible in that are they - do they pertain to the relationship of employer and employee, and are they possibly discriminatory against non-union members? I take you in particular to clause 24, Annual Notification of Employees, which in effect requires the employer to notify the union on an annual basis of all - of all its employees.

PN31

Does that pertain to the relationship between employer and employee or does it pertain to the relationship of the union and the employer? Clause 40, Internet Access, particularly clause 40.1, is that a matter that pertains to the relationship, that:

PN32

The union and its representatives have the right to access the internet through the company server.

PN33

Clause 45, the dispute settling clause, doesn't appear to me to enable an employee who is not a member of a union to gain assistance from anybody during the course of the dispute procedure. And so I raise those matter with those at the bar table. I don't know that it is fair to ask any of you to give me a reply at the moment, but they are matters that give me some concern though they may be okay. But I think I would need some submissions on them. I understand that you are in a particular need of having this agreement certified by a certain date before next week, is it?

PN34

MS KARSLAKE: Before tomorrow.

PN35

MR COLLEY: Before tomorrow.

PN36

THE SENIOR DEPUTY PRESIDENT: Before tomorrow, but I have to be satisfied that the statutory requirements have been met, of course, and I am - I am just not at the moment. I am not saying that they haven't been met but I would like to hear from you on these matters.

PN37

MR COLLEY: If the Commission pleases, perhaps we could go off the record and seek a short adjournment to discuss these matters?

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, yes, certainly, all right, we will go off the record.

OFF THE RECORD

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, I have had some consultation with the various representatives at the bar table and I have indicated that if I receive undertakings in relation to clause 24 and 45, and an explanation of clause 40.1, that my reservations will be assuaged and that I will be able to certify the agreement. So who wants to address me on those matters? I think Mr Wilson from - on behalf of the Council will say something about clause 24. Is that right, Mr Wilson?

PN40

MR WILSON: Yes, your Honour. Your Honour, I will take the undertaking that when we actually have the agreement certified I will write to all staff within the Shire about implementation plan to implement the enterprise agreement, and I will give staff the opportunity to respond to me in writing if they do not wish to have their names forwarded to the union, in accordance with clause 24.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. And I notice that clause 24 requires that to be done on an annual basis. Will you notify employees before you send details off to the union giving them the opportunity not to be included, if they so desire, each year?

PN42

MR WILSON: Yes, I will take that undertaking, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, very well then, I am satisfied in relation to clause 24. And I have been told by all of the people at the bar table that in relation to the dispute prevention and settlement procedure, should an employee wish - during the course of that procedure - to have the assistance of anybody that employee will be able to do so, whether the assistance is from the union or not. Is that agreeable to all at the bar table.

PN44

MS BAULCH: Yes, sir.

PN45

THE SENIOR DEPUTY PRESIDENT: On the record, please.

PN46

MR COLLEY: If the Commission pleases, yes that is agreeable to the AEU and we provide that undertaking.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN48

MS KARSLAKE: Yes, it is agreeable to the ASU and also the ANF.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, and the employer?

PN50

MR COLLEY: Yes, your Honour, it is agreeable to the Shire of Yarra Ranges.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes. And finally, just in relation to clause 40, I misunderstood, I think, on reading it so perhaps it is as well I place on the record that under clause 40.1, that enables the various - employees at the various sites at which they may work for the Shire to access the - sorry, the Council's internet site. Is that correct?

PN52

MR COLLEY: Yes, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: That is the thrust of that clause. Yes, well having received those undertakings I am otherwise satisfied that the agreement complies with the terms of the Act and that there are no reasons in section 170LU as to why I should refuse to certify it. And, accordingly, the agreement will be certified to operate from today's date. The Commission can now adjourn, thank you.

ADJOURNED INDEFINITELY [2.28pm]