AG2002/2205, Transcript of Proceedings [2002] AIRCTrans 1813 (23 May 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03895

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2002/2205

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by State of Victoria for certification
of the Victorian Public Service
(Non-Executive Staff) Agreement 2001

MELBOURNE

9.10 AM, THURSDAY, 9 MAY 2002

PN1

MR D. EYRE-WALKER: I appear for Her Majesty the Queen in Right of the State of Victoria with MR P. BRUCE.

PN2

MR R. RICHARDSON: I appear for the CPSU with MR W. TOWNSEND and MR J. KENNELLY.

PN3

THE COMMISSIONER: Yes, Mr Eyre-Walker.

PN4

MR EYRE-WALKER: Commissioner, this is an application under division 2 of part VIB for certification of a section 170LJ agreement between the State of Victoria and the Community and Public Sector Union. The agreement is to be known as the Victorian Public Service (Non-Executive Staff) Agreement 2001. Completed forms R27 and R28 were filed with the Victoria Registry on Monday, 22 April. This includes the statutory declaration setting out relevant details relating to the agreement's compliance with the provisions of the Act.

PN5

Commissioner, the agreement covers 24,238 non-executive Victorian public servants, except the operationally and organisationally distinct Government Superannuation Office, the operational areas of qualified nurses employed under the Health and Community Services classification structure within the Department of Human Services and the psychiatric service, intellectual disability and drug services areas of that same department. The latter are subject to separate award or certified agreement and are within the Health Service Union's area of coverage.

PN6

Commissioner, the two-year agreement provides for two 3 per cent salary increases. It also provides for two additional 1 per cent increases for staff assessed as at least meeting expectations in their annual performance assessments. It provides for three half a per cent lump sum non-recurrent payments in recognition of productivity improvements and, most importantly, it sets up a career structure and work organisation review to support the building of a modern public service. It is our submission, Commissioner, that the agreement satisfies the requirements of the Act, that on balance there must not be a reduction in the overall terms and conditions under relevant awards or laws.

PN7

In the present situation, the assessment is against the Public Service (Non-Executive Staff - Victoria) Interim Award 1996 and the Public Service (Non-Executive Staff - Victoria) Conditions Award 2001. Detailed information relating to the agreement, including a copy of the agreement, was provided to all staff to be covered by the agreement. It was written in a way all employees could be expected to understand, including the special groups identified by the Act and listed in form R28. The Victorian Electoral Commission conducted a secret postal vote after all employees had had access to the material for at least 14 days. Over 48 per cent of staff voted, with 97.75 per cent of valid votes being in favour of the adoption of the agreement.

PN8

In summary, Commissioner, we submit that all the requirements of the Workplace Relations Act have been complied with and that, as an overwhelming majority of valid votes were cast in favour of the agreement, it should be certified pursuant to section 170LT of the Act. If the Commission pleases.

PN9

THE COMMISSIONER: Thank you. Just a couple of questions, if I may, Mr Eyre-Walker. The first question is in relation to 6.3 of the agreement, which talks about pre-existing rights and entitlements as varied from time to time and it talks about matters not dealt with in the agreement. Now, I have assumed from that that no inconsistency does arise and, from the words "or varied from time to time", could not arise.

PN10

MR EYRE-WALKER: Yes. I think there are probably two issues here. The issue of the agreement has specific clauses. Also, the agreement, by reference, picks up conditions in other instruments which are picked up by reference.

PN11

THE COMMISSIONER: I see. So, to the extent that they are varied, it is then consistent with the agreement.

PN12

MR EYRE-WALKER: Yes.

PN13

THE COMMISSIONER: Yes. My only concern to alert you is that you couldn't have a situation where that purported to facilitate an agreement unknown to this instrument that was inconsistent then with this instrument.

PN14

MR EYRE-WALKER: I think that is clearly understood by the parties, Commissioner.

PN15

THE COMMISSIONER: All right. Thank you. There is just one other matter and I can deal with it generically. There is provision in relation to agency agreements and there are two alternatives. One is to have a variation to this agreement and the other is the making of an agency agreement.

PN16

MR EYRE-WALKER: That is correct.

PN17

THE COMMISSIONER: I simply make the observation now. It doesn't go to the question of whether I certify this or not but section 170LY of the Act needs to be looked at very closely if other agreements are made and sought to be certified.

PN18

MR EYRE-WALKER: Yes. From the parties' point of view, we understand that. What this is really is a facilitative-type clause and the parties, obviously, when they, hopefully, reach agreement on the various matters within the time frame of this agreement will need to look at the processes for putting them into place and they would, obviously, have to be consistent with the requirements of the Act.

PN19

THE COMMISSIONER: Yes. Thank you. Yes, Mr Richardson.

PN20

MR RICHARDSON: If the Commission pleases, we say the material before the Commission shows that the processes that need to be addressed in reaching an agreement have been met and we say the form of the agreement meets the requirements of the Act and there should be no barrier to certification. However, there is one little side-show I must address. It will be noted from the form R28 that there was a bargaining period instituted prior to the reaching of this agreement. During the course of that bargaining period, there was conciliation before Commissioner Simmonds on 29 October 2001, in which a number of comments were made concerning the CPSUs attitude through the process. At that stage, the issues weren't addressed and we never got the chance to address them.

PN21

THE COMMISSIONER: Well, it was conciliation, wasn't it?

PN22

MR RICHARDSON: There was some material on the record and we chose not to address them at that stage but to move into the conciliation. So to make the record complete, we would like to hand up a document which has been passed to the government yesterday afternoon. We would like it to be given an exhibit number and to reside with the file.

PN23

THE COMMISSIONER: Mr Eyre-Walker, do you have any difficulties with this?

PN24

MR EYRE-WALKER: Commissioner, we have no objection to the document being tabled but we would like to make a short statement in response.

PN25

THE COMMISSIONER: Very well. CPSU1. Yes, Mr Richardson.

EXHIBIT #CPSU1 COPY OF DOCUMENT RELATING TO EARLIER PROCEEDINGS, ALSO SENT TO STATE GOVERNMENT

PN26

MR RICHARDSON: We don't intend to go - - -

PN27

THE COMMISSIONER: To the document at all.

PN28

MR RICHARDSON: To the document. It is just, in our view, the record was left incomplete and by the tabling of this document we finish the story. We don't really want to rehash the past but there were a number of matters that were raised that we reserved our right to address and we feel, for completeness, this is the best way to address them.

PN29

THE COMMISSIONER: Very well. Thank you. Well, I will now hear the postscript to the story. Yes, Mr Eyre-Walker.

PN30

MR EYRE-WALKER: The State of Victoria does not withdraw the submissions on 29 October 2001. However, we note that the submission was made in the context of the dispute then existing between the parties. Since then we have moved forward and have reached the agreement that is now before you for certification. As a result, the State of Victoria does not wish to make any further submissions today on this matter. If the Commission pleases.

PN31

THE COMMISSIONER: Thank you. This is an application for the certification of an agreement to be known as the Victorian Public Service (Non-Executive Staff) Agreement 2001. I have examined the statutory declarations of Karen Batt and Paul Lorraine and I have examined the agreement. I am satisfied that the agreement complies with the provisions of the Workplace Relations Act 1996 and, as a result, I am required by that Act to certify the agreement. I will certify the agreement. The agreement shall operate from today and shall operate in accordance with its terms. Thank you very much. The matter is adjourned sine dine.

ADJOURNED INDEFINITELY [9.21am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 COPY OF DOCUMENT RELATING TO EARLIER PROCEEDINGS, ALSO SENT TO STATE GOVERNMENT PN26