AG2001/8103, Transcript of Proceedings [2002] AIRCTrans 1118 (5 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N VT02036
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

AG2001/8103
AG2001/8119

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by Victoria Police Force for
certification of the Victoria Police
Force Certified Agreement 2001

APPLICATION FOR DETERMINATION
OF DESIGNATED AWARD FOR CERTIFIED
AGREEMENT

Application under section 170XF of the
Act by Victoria Police Force for
determination of designated award for
certified agreement

MELBOURNE

9.37 AM, THURSDAY, 20 DECEMBER 2001

PN1

THE COMMISSIONER: I don't think there is any need to take appearances, is there? So, who is going to lead today? Mr Dalton?

PN2

MR DALTON: Commissioner, if I could start by dealing with the application under section 170XF, the application for the determination by the Commission of a designated award for the purposes of assessing the no disadvantage test. That application was filed, along with the substantive application for certification of the agreement and some other supporting documentation on 19 December. The reason the application for determination of a designated award needs to be made is the absence of a relevant award for the purposes of 6E, that is the part dealing with the no disadvantage test.

PN3

The designated award, or awards, that are the subject to the application, Commissioner, are the Police Service Non-Executive Staff Victoria Interim Award 1996 and the Public Service Non-Executive Staff Victoria Interim Award 19 - sorry, 2000, I think that should read, yes, 2001. Yes, that was an award that was made quite recently. To give you some background, Commissioner, the determination of the Interim Award 1996 that I have just referred to as the designated award for the purposes of assessing the no disadvantage test for the last enterprise agreement for Victoria Police was made by Commissioner Holmes. I have a copy of the determination of Commissioner Holmes to that effect, for the Commissioner's information.

PN4

THE COMMISSIONER: Yes, have you got some other exhibits you were going to hand up now, Mr Dalton, or was that the only one?

PN5

MR DALTON: I have a couple of more for this application, that is the awards that we asked to be designated.

PN6

THE COMMISSIONER: I wonder if you could give those to my associate because I am going - she is going to leave us for a moment. You will have noticed, Mr Dalton, that the XF application has not been called on. It hasn't been listed and it hasn't been called on and that is because, I presume, of a registrarial oversight late yesterday afternoon. Now I am going to have my associate - so it just goes to show that the best laid plans can go slightly astray. But they are not going to go very far astray because even though sometimes the Commission is described as being process driven it is not, in my understanding, a desire that steps from any member of the Commission.

PN7

However we are, as you know, creatures of the statute so I am going to ask my associate to get a - I just do like to proceed properly so we will get a case number, and she will be able to do that in just a moment.

PN8

MR DALTON: Yes.

PN9

THE COMMISSIONER: But I would ask you to go on and then I will call on the XF matter and it might be that you have made some preliminary submissions. All right? So you go ahead.

PN10

MR DALTON: Yes, thank you - thanks, Commissioner.

PN11

THE COMMISSIONER: But I mark this - I don't know that this is a document of the Commission, but nevertheless I will mark that Dalton1.

EXHIBIT #DALTON1 DETERMINATION OF COMMISSIONER HOLMES

PN12

MR DALTON: Thank you, Commissioner. The other two documents I have handed to you are the awards, the 1996 Interim Award and the 2001 Conditions Award. Those are awards of the Commission, they don't need to be marked. Commissioner, just to explain, Commissioner Holmes - as 23 June 1998 when he handed down this determination - had submissions from the parties to the effect that historically, to a significant degree, the terms and conditions of police in Victoria were determined by the Police Service Board.

PN13

And that the Police Service Board would, to a significant degree, set terms and conditions that effectively mirrored those that had been determined by the Public Service Board. The submission was put to Commissioner Holmes that it was more appropriate to have regard to the State public service instrument than to look into other jurisdictions for instruments that regulated terms and conditions of police. Police in other jurisdictions have had similar histories so that, really, terms and conditions have largely been determined by reference to the respective state jurisdictions. And similarly, separate terms and conditions have been determined in relation to the Federal Police.

PN14

For that reason, and the fact that this State award that had been made in 1992 to deal with police had been abolished from March 1993 due to the relevant State legislation, the Employee Relations Act, the submission was put by both parties to Commissioner Holmes that the nearest fit, if you will, was the appropriate State Public Service Non-executive Staff Victorian Interim Award 1996. And on the basis of those submissions Commissioner Holmes was prepared to make the determination in the form of the first exhibit.

PN15

The only difference now, Commissioner, is that the 1996 Interim Award has been split. If you have a look at the 2001 award you will see that at clause 1.7 it describes its relationship with the 1996 Interim Award. It says clauses 3, 4, 5, 11, 12 - except clause 12.7 - 13 and 13(a) of the interim award will continue to apply. In all other respects this award will operate to the exclusion of the interim award in respect of the employees to whom this award applies.

PN16

Commissioner, the 2001 award essentially provides for the conditions of employment that were previously prescribed in the 1996 award. What does not appear in the 2001 award is an updated classification structure and set of salaries. Those provisions are the provisions referred to in clause 1.7 of the award. So for classifications of salaries, etcetera, one needs to have regard to the 1996 Interim Award. And it is for that reason that the application for determination of designated award involves two awards which, in my submission, represent the equivalent position that was put to the Commission by the parties in 1998.

PN17

THE COMMISSIONER: Yes.

PN18

MR DALTON: Those are the submissions in relation to the 170XF application, Commissioner.

PN19

THE COMMISSIONER: Yes. Well, I think it would be - - -

PN20

MR DALTON: Would you like me to address you on the substantive application at this point, or wait?

PN21

THE COMMISSIONER: No, no, no, I would like - I think it is important that the sequence be got right.

PN22

MR DALTON: If the Commission pleases.

PN23

THE COMMISSIONER: Yes, yes. It might be easier to adjourn for a few minutes. I want to make sure that the XF has been made prior to consideration of the agreement, and all I am going to adjourn now for is a few minutes to get the necessary case number so it can be - so it can be properly called on. That is all, we will just adjourn now for a few minutes.

SHORT ADJOURNMENT [9.49am]

RESUMED [9.53am]

PN24

THE COMMISSIONER: Yes, you were saying, Mr Dalton, in relation to AG2001/8119?

PN25

MR DALTON: Yes, Commissioner, the application that I set out in submissions earlier, before the matter was formally called on on transcript, I rely on the submissions that I put. If the Commission pleases.

PN26

THE COMMISSIONER: Yes. Mr Kennedy?

PN27

MR KENNEDY: Yes, we would support the application, Commissioner, merely echo the submissions made by Mr Dalton. This matter was determined by your brother Commissioner, Commissioner Holmes, back in 1998 and Mr Dalton has ably set out the changes that have taken place in respect to that public service award, so we believe, and we have got nothing further to add.

PN28

THE COMMISSIONER: Yes, thank you. Well, it is necessary for the Commission in these circumstances to make a determination under section 170XF(2). And I indicate now, and I will do this shortly in a more formal way, that there being an application made under section 170XF(1), the appropriateness of an award is necessarily determined and I make that determination as a consequence of the need to in turn determine the no disadvantage circumstance of the application which is listed before the Commission this morning.

PN29

And I do determine, pursuant to section 170XF that the Public Service Non-executive Staff Victoria Interim Award of 1996 and the something or other - Public Service Non-executive Staff Victoria Conditions Award of 2001, by their combined operations can be have regard for that task and they do represent the most appropriate awards taken in the necessary combination that Mr Dalton has addressed on. And I will make that - I will issue that determination in a written form very shortly after we adjourn. So that being done, I now look to you, Mr Dalton. Are you going to lead in relation to the certification?

PN30

MR DALTON: Yes, Commissioner.

PN31

THE COMMISSIONER: Very well.

PN32

MR DALTON: Commissioner, this is an application for certification of the Victoria Police Force Certified Agreement 2001, the application - along with sufficient copies of the agreement and supporting statutory declarations from representatives on the one hand of the Chief Commissioner and on the other, Mr Mullet, on behalf of himself and on behalf of the other employees covered by the agreement - were also filed. Commissioner, there are a number of matters that prescribe the circumstances in which you must certify the agreement, and circumstances in which you must not certify the agreement.

PN33

Those matters are set out in 170LT and LU, respectively. Those matters are addressed in these statutory declarations and is the core of the application. there is one matter that I would like to clarify. There were slightly inconsistent answers to the question that relates to section 170LK(4) that is the requirement when notifying employees of the intention to enter into the proposed agreement, to inform them that they can ask an organisation that is eligible to represent their interest to be involved in meeting and conferring over the agreement. The answer that was provided in the statutory declaration of Mr Kelly says, "No." I think that is at 5.8, if memory serves me correctly.

PN34

THE COMMISSIONER: Yes, I am looking at that.

PN35

MR DALTON: You will see the reasons why the answer was "no" in that statutory declaration. The reason being that the Police Association is not technically a registered organisation under the Act and, on that basis, there wasn't actually a notice to that effect. You will see the equivalent answer provided in the statutory declaration of Mr Mullet. He says that, "Well, yes, in fact there was that notice given." Perhaps if I could clarify it by handing up the notice that was issued to employees. It is dated 27 November, I think that it was put on the Intranet some time shortly after that date.

PN36

THE COMMISSIONER: Do you tender this, Mr Dalton?

PN37

MR DALTON: Yes, Commissioner.

EXHIBIT #DALTON1 STATUTORY DECLARATIONS

PN38

MR DALTON: You will see in the first paragraph there is the notification of the intention to enter into the section 170LK agreement. And in the second paragraph, it reads:

PN39

The Workplace Relations Act provides that any person who wishes to be represented by an organisation that is entitled to represent their interests should request that organisation to notify Victoria Police.

PN40

The proposed agreement has been the result of extensive negotiations between Victoria Police and the Police Association. And then there is just a reference to the voting process that is to be conducted by the Victorian Electoral Commission. So in my submission the, whichever way you look at it, either in the technical sense as answered by Mr Kelly in his statutory declaration, or in the perhaps more substantive sense as indicated by Mr Mullet, the requirements in relation to section 170LK(4) are met.

PN41

In relation to the no disadvantage test, which is another significant matter that the Commission must have regard to in 170LT you will see in the statutory declarations that both parties say that when having reference to the awards that you have just designated - determined to be the designated awards that there is no disadvantage in the agreement compared to those awards. Those statutory declarations, I can confirm, were made in anticipation of you making the termination sought and there will be no change to that.

PN42

THE COMMISSIONER: Yes.

PN43

MR DALTON: Another matter tha the Commission is often interested in is the dispute settling procedure You will see that at clause 8.3 of the agreement. It is also worth noting that it provides for a staged process of dispute resolution in the convention form, but also provides a role for the Commission to determine the matter if the parties can't reach agreement. And the parties agree to be bound by that determination subject to any rights of appeal.

PN44

Commissioner, another matter that is important is the agreement-making process, in particular the requirement that employees have the 14 day period to consider the contents of the agreement before the agreement is made. You will see, as an attachment only to both declarations, there is a fairly detailed description of that agreement making process. And in my submission the Commission can be satisfied that the relevant agreement-making requirements in 170LT are satisfied.

PN45

Perhaps the last few dot points are the most relevant. It says on 3 November the notification was issued, so that is the notification that is - it is in the Dalton 1. And the vote was held on 19 December 2001. The results, 86.1 percent voting "yes", 13.8 percent voting "no". I presume the point one percent is the six informal votes that weren't received. So there is a significant approval of the agreement. The other thing I would like to mention is just for clarification purposes, because it is not described specifically in the stat decs, is who the agreement covers. You will see that it covers over 10,000 people.

PN46

It covers all members of the force up to and including the rank of Chief Superintendent. It also covers Protective Services officers, reservists and recruits. That is the scope of the agreement. One final matter, Commissioner, in relation to the agreement is the - the life of the agreement. You will no doubt know, because of your involvement, your facilitating of this agreement, that ultimately the parties reached agreement on terms for a - what has been described as a five year deal. Specifically I think it is stated to operate until 6 December 2006.

PN47

Now, Commissioner, as you are well aware the Workplace Relations Act provides that the maximum nominal period of certified agreement is three years after the date of certification. And to give efficacy to the five year deal, the parties entered into a deed. I would like to hand a copy of the deed to the Commission for the Commission's file.

EXHIBIT #DALTON2 DEED

[10.08am]

PN48

MR DALTON: Commissioner, I don't propose to go through the detail of this deed, but you will see that it is one which was made between the Chief Commissioner and the Police Association. And the fundamental objective of this deed is to, as I said, maintain the efficacy of the agreement beyond the maximum nominal life of an agreement under the Act, and to ensure that the parties stick to that agreement for its full life, to 6 December 2006. Commissioner, unless there are any other matters in relation to the technical requirements, in my submission the application is made, consistent with section 170LK, and the requirements in 170LT and LU, and should be certified on that basis.

PN49

The only final matter is, Commissioner, is to thank you on behalf of the Chief Commissioner and her representatives for your role, your important role, in facilitating this agreement. In particular your efforts in sitting at - sitting long hours in conciliation in an effort to reach an agreement which was difficult to achieve. If the Commission pleases.

PN50

THE COMMISSIONER: Thank you, Mr Dalton. Thank you. Yes, Mr Kennedy.

PN51

MR KENNEDY: Thank you, Commissioner. We will rely upon the declaration that was made by Mr Mullet that accompanied the application by the employer for the certification. The only matter I wish to address the Commission on in any detail is the question about the representativeness of Mr Mullet on behalf of the employees. I would like to take one Exhibit, Commissioner. The Commission has a bundle of documents that deal with the rules and articles of the Association, and its correspondence with its members.

EXHIBIT #KENNEDY1 DOCUMENTS RE RULES AND ARTICLES OF THE ASSOCIATION, AND CORRESPONDENCE WITH MEMBERS

PN52

THE COMMISSIONER: These are very modest Exhibits compared to those that one is familiar with, with you, Mr Kennedy.

PN53

MR KENNEDY: Thank you, Commissioner. I am - - -

PN54

THE COMMISSIONER: Modest in size I mean. I don't mean - that isn't a qualitative observation.

PN55

MR KENNEDY: That is all right. We - - -

PN56

THE COMMISSIONER: How could it be? I have not opened it, but - well, barely opened it. Yes?

PN57

MR KENNEDY: Sir, we slaughtered a few trees in the process of this particular proceedings, Commissioner. There is no doubt about that. The first thing I want to take the Commission to is behind Tab 1 at page 13. Tab 1 is the memorandum and articles of association of the Police Association, Commissioner. In that article 17, it provides that:

PN58

Members of the Association are deemed to have authorised the Association to act for it ...

PN59

in amongst other things:

PN60

... in the making of agreements, or any proceedings concerning an industrial dispute or the making of an award under the Workplace Relations Act. Represent the members in negotiations in respect of a certified agreement or AWA. And in accordance with the provisions of the Act, enter into a certified agreement or AWA on that member's behalf ...

PN61

Commissioner. Unless, if we go to (f), Commissioner:

PN62

... that member advises the Association that he does not wish to be represented.

PN63

Those articles also provide, sir, at (c)(1), for:

PN64

... for the Executive of the Association to authorise a member of the Association to be the nominated member, to act on behalf of members, be an initiating party on behalf of other members ...

PN65

etcetera, Commissioner. If we go to Tab 2, Commissioner, and the second letter that is behind Tab 2, dated 19 March 2001. That was, Commissioner, a letter from Paul Mullet, as Secretary of the Police Association, to all members, attaching the claim the Association intended to make upon the Chief Commissioner of Police. And advising the members of their entitlement to, by writing, withdraw their authorisation under the memorandum and articles and association. It is a matter of record, Commissioner. There were no members that did not authorise Mr Mullet to act on behalf in this matter.

PN66

And as Mr Dalton has indicated, and as we previously indicated to the Commission, and as the Commission is aware, the Association has enrolled as its membership the overwhelming majority of all members of the Police Force, Commissioner. The balance of the material there, Commissioner, behind Tab 3, goes to the processes involved in the Association keeping the membership informed of the negotiations, and of the outcome of negotiations, Commissioner. So we would submit that it is clear from the evidence that Mr Mullet clearly acted as the representative of all employees, Commissioner.

PN67

The balance of the process of consultation between Mr Mullet and the membership is, of course, set out in his affidavit, including the process following the signing of the heads of agreement between Mr Mullet and the Chief Commissioner of Police. Following that signing, I might point out there was a meeting of the Police Association's Executive that endorsed the heads of agreement. Subsequently it was signed on 2 November. There was a special meeting of the Association's delegates on that day, which similarly endorsed the agreement. And the heads of agreement was mailed out to all of the members of the Association on that date.

PN68

Following the mail out of the heads of agreement a series of State-wide meetings were conducted, and a schedule of those meetings is attached as attachment A to Mr Mullet's declaration. And at the conclusion of those State-wide meetings, a special general meeting was held of the Association's membership on 22 November 2001 which endorsed the heads of agreement, which was subsequently converted into the proposed certified agreement that you have before you. And that agreement was then subject to a ballot of all employees of Victoria Police.

PN69

So it is our submission, Commissioner, that Mr Mullet represents the members, and has undertaken all steps necessary under the Act to ensure that the employees of the Victoria Police Force have knowledge of and understand the contents of the proposed certified agreement. I don't need to say anything further, Commissioner, other than say that we believe the proposed agreement meets the necessary tests under the Act, and it is appropriate for the Commission to certify it. I think Mr Mullet may wish to add some further comments, Commissioner.

PN70

THE COMMISSIONER: Yes. Thanks, Mr Kennedy. Yes, Mr Mullet.

PN71

MR MULLET: Yes. Thank you, Commissioner. In supporting Mr Dalton's comments, on behalf of the Police Association and every member we represent, we would like to take the opportunity to thank you personally, your Associate, and the Commission, for its important role in the conciliation process. Without that role there is no doubt, in terms of the detail in us - in the parties reaching agreement, we would not have signed off, in principle, in terms of the heads of agreements. So we take the opportunity to thank you for your role in that part of the process. And also your role and your advice in facilitating what is a five year agreement.

PN72

THE COMMISSIONER: Yes. Thanks, Mr Mullet. Thank you for that. Very well. Nothing further from you, Mr Dalton?

PN73

MR DALTON: Look, just one small matter, being clause 1.5.3 of the agreement. Just to draw to the Commissioner's attention that there is the - a provision there with an option to extend the agreement beyond the five years in certain circumstances there, set out there. We have been referring to a five year agreement just to clarify the years possible, but under 1.5.3 it could be extended beyond 6 December 2006.

PN74

THE COMMISSIONER: Yes. But it is not right to see 1.5.3 as an activity that is associated with the deed, is it? It is a separate - - -

PN75

MR DALTON: That is right.

PN76

THE COMMISSIONER: A separate matter that might be taken up by the parties, if they choose to. And the Act would - - -

PN77

MR DALTON: The deed does refer to it. The deed is to give efficacy to the life of the agreement.

PN78

THE COMMISSIONER: Yes.

PN79

MR DALTON: Including the agreement as extended, is my understanding of it, yes.

PN80

THE COMMISSIONER: All right. Yes. Thanks, Mr Dalton.

PN81

MR DALTON: Thanks, Commissioner.

PN82

THE COMMISSIONER: This is an application made under section 170LK of the Act for certification of the agreement that is reached between its parties, and they are, as clause 1.2 makes clear, Ms Nixon, Chief Commissioner of Police, and a person who is nominated by the Governor in counsel in the way that is set out at clause 1.2 of the proposed agreement, and persons appointed in a way, again which I won't traverse the detail, as set out in 1.2. But pursuant to the Police Regulation Act, and defined by section 489 of the Workplace Relations Act.

PN83

Having regard for the previous determination made by the Commission earlier this morning, the Commission's task of course is to see whether this is an agreement which is capable of being certified under this section of the Act, relevant to the necessary tests and requirements of the Act. The agreement is to be entitled The Victoria Police Force Certified Agreement 2001, and has as its period of operation a period extending from 20 December of the year 2001, and expiring on the 19 December of the year 2004.

PN84

It is the case that included on the file in Exhibit Dalton2 is a deed of the parties, which goes to their intention in relation to the future application and operation of this agreement. The agreement provides for, in my view, the necessary benefits to - and there can be no doubt about this, not have it collide with the no disadvantage test. And it contains a dispute settlement procedure which, in my view, is one which would render it certifiable. There is, it is necessary to note, that the section 170LK(4) requirement, which is an absolutely pivotal requirement that there be a notice of intention - at the time of the notice of intention being given to the parties that the representational rights are advised to the parties.

PN85

And notwithstanding Assistant Commissioner Kelly's declaration provided on the file, Dalton1 - Exhibit Dalton1 in these proceedings satisfies me that the representational rights obligation was made out by the Force, and their entitlement for representation is brought to notice in that, and it is important that it was, indeed, in that - in the material which I am told, and I accept the submission, was provided for every member at the time of the circulation of the proposal.

PN86

The agreement, of course, is negotiated by - between the Chief Commissioner and Paul Redman Mullet, as Secretary of the Police Association. Mr Kennedy's Exhibits go to establish how it is that their authority is properly made out under the articles of association of the Association. And also, the steps that have been taken consistent with the Act to advise the members and to establish the breadth of the representation of the Association. And I accept those. There being no reason which would inhibit certification I do propose to certify the agreement. And I will do that now.

PN87

And the certificate will indicate that the agreement comes into force with effect from today's date, and having regard for the terms of the operation of the agreement to which I have earlier referred. And I adjourn sine die.

ADJOURNED INDEFINITELY [10.22am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #DALTON1 DETERMINATION OF COMMISSIONER HOLMES PN12
EXHIBIT #DALTON1 STATUTORY DECLARATIONS PN38
EXHIBIT #DALTON2 DEED PN48
EXHIBIT #KENNEDY1 DOCUMENTS RE RULES AND ARTICLES OF THE ASSOCIATION, AND CORRESPONDENCE WITH MEMBERS PN52