AG2002/602, Transcript of Proceedings [2002] AIRCTrans 1263 (12 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/602

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by Mid Murray Council and Another re certification
of Mid Murray Council (ASU) Enterprise Agreement
No 2 2001

ADELAIDE

10.05 AM, THURSDAY, 28 MARCH 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, could I have some appearances please?

PN2

MS L. JONES: If it pleases the Commission I appear for the Mid Murray Council.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Jones.

PN4

MR D. PAYNE: If it pleases the Commission I appear on behalf of the Australian Services Union.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Payne. Ms Jones, you have the Easter honours do you?

PN6

MS JONES: I do, I do. I've prepared a very professional submission for you. Senior Deputy President, this agreement comes before you following council's application under 170LS of the Workplace Relations Act between Mid Murray Council and the Australian Services Union. The agreement is for a period of 2 years commencing from the date of certification. The agreement as the statutory declaration outlines covers 41 employees and the stat dec also sets out the consultative process undertaken. Copies of the agreement and draft proposed new clauses were distributed to all employees to consider and I will go through some of those clauses in a moment.

PN7

Meetings were held to discuss the new clauses and in that context that is because much of the agreement is a roll-over of previous agreements. The vote was conducted on 15 February. This agreement is the second enterprise agreement for this council. However it did amalgamate some years ago and each of the former enterprises prior to the new council all were involved in enterprise bargaining and have done so for around 7 to 8 to 9 years. So they've had several enterprise agreements. They also had an amalgamation agreement. This agreement contains many clauses as I've discussed which is simply a roll-over from those previous agreements.

PN8

There are some changes though and I will take you through those. Clause 6 changes the period from 2 years. The previous one was 3 years. This one however is only for a 2 year period. Clause 7 now relates to the 1998 award, not the previous 1991 award. There are some minor changes to some financial benefits for employees. They are clause 13, 13.1.10 is the financial reimbursement for mandatory training to retain accreditation. This is now $700. This is actually an insertion from the previous agreement. Clause 16 provides for an increase from 300 - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Ms Jones, perhaps just before you leave clause 13 can you just explain to me how clause 13.4 operates, and particularly 13.4.1?

PN10

MS JONES: The flexible hours?

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MS JONES: Which part of it, sorry?

PN13

THE SENIOR DEPUTY PRESIDENT: 13.4.1.

PN14

MS JONES: There's clauses in the award which clearly outline the way that the hours will operate so this particular flexible hours clause does not relate to staff occupied in those occupations.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, or alternatively is it proposed that individual hours arrangements may in fact operate instead of the award provisions?

PN16

MS JONES: That would be the case and that would be under 6.4.6 of the award where hours agreements can be struck.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you and whilst we are on clause 13, 13.4.7, the last sentence I presume should read:

PN18

Provided however an employee may direct an employee.

PN19

Rather than "direct and employee."

PN20

MS JONES: Yes, yes.

PN21

THE SENIOR DEPUTY PRESIDENT: A minor typographical.

PN22

MS JONES: Yes, yes, that is a spelling error.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN24

MS JONES: I would say that has probably perpetuated from the previous agreement.

PN25

THE SENIOR DEPUTY PRESIDENT: Sorry, Ms Jones, I interrupted you.

PN26

MS JONES: That is fine. So there aren't any more queries about clause 13?

PN27

THE SENIOR DEPUTY PRESIDENT: No, no.

PN28

MS JONES: That financial benefit used to be $600 that I was discussing under 13.1.10. That is now $700. Clause 16 provides for an increase for the corporate wardrobe subsidy from $350 to $450.

PN29

THE SENIOR DEPUTY PRESIDENT: Now, before you leave that clause can you just help me out by telling me clause 16.1 establishes that all employees agree to abide by the employer's requirement for the wearing of its corporate uniform.

PN30

MS JONES: That is correct.

PN31

THE SENIOR DEPUTY PRESIDENT: 16.3 addresses the provision of the subsidy on the completion of the probationary period. What happens in the interim period of time so that whilst the employee is on probation are they required to wear the uniform?

PN32

MS JONES: No, no they are not. They just wear their normal working attire which is suitable for the workplace.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you and can I presume that clause 16.4 effectively means that the unspent subsidy is - - -

PN34

MS JONES: Yes, accumulates from year to year.

PN35

THE SENIOR DEPUTY PRESIDENT: - - - cumulative. Thank you.

PN36

MS JONES: Clause 22 is actually a new insertion under 22.3 to 22.9 which sets out a whole set of procedures to be taken place if there's a grievance by a council against a staff member. I have no understanding of why that would be there but the union may be aware that perhaps there's been some conflict between counsellors and staff members in the past so they have wanted to formalise that procedure to deal with the grievances. Clause 25 covers superannuation. This a new clause and it just really outlines the statutory requirements for superannuation to be paid. It does appear in all other or most other enterprise agreements in our sector.

PN37

Clauses 26, 27, 28 and 29 are all new clauses and they relate to the procedures or practices surrounding recruitment and promotion, casual employment, right of entry and trade union leave.

PN38

THE SENIOR DEPUTY PRESIDENT: Can I presume that clause 27.1 is intended to be read as:

PN39

An officer engaged for a period of 1100 hours or less than a year may be engaged as a casual on a hourly contract of employment and such officer shall be entitled.

PN40

MS JONES: Shall be entitled to be paid a loading, that is correct, that is correct.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN42

MS JONES: The award provides for 800 hours so this is quite a benefit for the employer to not have to then consider the employee to be a part-time, permanent part-time employee. So you get that benefit of the extra 300 hours. The wage increases will continue to be paid from 1 October as with the previous agreement, therefore 4 per cent will be paid, backdated to 1 October 2001 and a further 4 per cent from 1 October 2002. These increases on average will represent a figure of approximately 16 to 18 per cent above the award. Deputy President, there are no changes in this agreement. Unless there is anything you wish me to clarify we believe that the statutory requirements have been met and seek your certification of the agreement before you.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Jones. Can I just ask while you are on your feet a couple of other questions of clarification? Can I take you back to clause 19 and just ask you to clarify for me the extent to which or the intention from your perspective anyway in relation to the operation of clauses 19.4 and 19.5?

PN44

MS JONES: 19.4 would mean that they would proceed on 3 months leave. However - and when they came back from leave they would slip straight back into the previous role that they had undertaken. So it means that if someone even was acting in that particular job that would only be of a temporary nature and that person continues back into their previous job and so 19.5, so what they are saying here is if someone has a period of leave beyond the 3 month period that means then that they come back to a job within council but not - it may not be the same job but it would the same amount of pay, the same classification.

PN45

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Can I then take you back to clause 22, your grievance of dispute resolution procedure? Can I ask two questions here? Firstly just that you confirm to me that the intention of the employer here is that in the event of a dispute having to be referred to the Industrial Relations Commission the Commission would initially adopt a conciliation function and if necessary arbitrate the dispute on the basis that the dispute relates to an issue that is covered by the agreement.

PN46

MS JONES: No, I would say no. That does not really suggest that. Perhaps you would like to make some comments. Are you talking about 22.1.5

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, I am. I'm just trying to clarify what the parties expect to happen in the event of a dispute.

PN48

MS JONES: I would say that 22.1.5 is about any dispute with regard to anything which is outside the operation of the enterprise agreement.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN50

MS JONES: Because under 22.2 that then outlines the grievance procedure which does relate to an enterprise bargaining agreement.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN52

MS JONES: But perhaps the union might like to make a comment on that.

PN53

THE SENIOR DEPUTY PRESIDENT: That is all right, thank you and the new provision relating to the potential for a dispute with council members or between council members and staff members, can I just ask you to indicate to me in that respect whether the parties intend that type of dispute to ever be referred to the Commission? And I need to make it clear I'm not canvassing for more business, I'm just trying to clarify what the intention is in that regard.

PN54

MS JONES: It would be my view that that would not be the case. That would be an in-house grievance procedure.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you, thank you. The last question I have is just a further question of clarification. If I can take you to clauses 31 and 32 as I understand those clauses the intention of the parties is to apply the 4 per cent increase which is specified in clause 31 and outlined in terms of its impact on actual wage levels in the appended salary schedule would operate to the exclusion of National Wage Case increases unless those National Wage Case increases departed from the normal tradition such that they stipulated they would be in addition to enterprise bargaining wage increases.

PN56

MS JONES: Yes, that is correct. This, the intent of these clauses is that any safety net increase that is awarded in the award is not applied to these wage rates. They are absorbed.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you and one last question for you outside of the agreement itself, can I refer you to the statutory declaration and in particular to paragraph 5.1? I just ask for confirmation that the agreement in its final form and in its entirety was in fact provided to all employees. It wasn't just a case as could be inferred from the answer to paragraph 5.1 that the draft, that certain draft clauses were circulated to all employees. I'm anxious to know whether or not the entirety of the agreement was provided to the employees.

PN58

MS JONES: The entire enterprise agreement was provided to employees.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN60

MS JONES: All of the draft clauses though were produced in bold in the document.

PN61

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Ms Jones.

PN62

MS JONES: Thank you.

PN63

THE SENIOR DEPUTY PRESIDENT: Mr Payne?

PN64

MR PAYNE: If it pleases the Commission my submission will be brief, Senior Deputy President, as Ms Jones' submission has been comprehensive and the ASU does support all of the statements and Ms Jones' submissions in all of the areas, even in the areas of questions that the Commission have had of Ms Jones as to the relevant clauses within the agreement and for the clarification we do agree with Ms Jones' explanations of those clarifications. Senior Deputy President, the ASU also believes that the agreement does not on balance reduce the overall terms and conditions of employment of the employees covered by the agreement, that members have and other employees covered by the agreement have been fully consulted with as to the content and intent of the agreement and have endorsed the agreement.

PN65

Employees were also informed, Senior Deputy President, of the intention to apply to the Commission for certification of the agreement. Therefore, Senior Deputy President, given that the agreement and statutory declarations meet the relevant requirements of the Act as well as having endorsement from council and the employees we would be urging the Commission certifies the agreement today, if the Commission pleases.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Payne. I have considered the agreement. I've considered the agreement in the context of the information provided to me today and also the information contained in the statutory declarations. I'm satisfied that the agreement was reached through a process envisaged by the Act. Employees were given the opportunity to consider the agreement and make an informed decision in relation to it. I have also considered the agreement itself and I'm satisfied that the agreement meets the "no disadvantage test." The agreement is of a duration envisaged by the Act and does not contain for provisions which are prohibited by the Act.

PN67

It contains the necessary dispute resolution process and on the basis of these considerations I am prepared to certify the agreement as of today's date. The certificate will be prepared and forwarded to the parties over the next few days. Obviously given the timing of this hearing it will be forwarded to the parties after Easter. It remain for me to congratulate the parties on reaching this agreement and express my wish that it operates to the benefit of both the employees and the employer. On that basis I wish you both a happy Easter and adjourn these proceedings. Thank you.

ADJOURNED INDEFINITELY [10.25am]