AG2002/141, Transcript of Proceedings [2002] AIRCTrans 2195 (13 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N WT04865

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2002/141

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Busselton Water Board for certification
of the Busselton Water (Administrative Staff)
Enterprise Bargaining Agreement 2002

PERTH

9.33 AM, FRIDAY, 31 MAY 2002

PN1

THE DEPUTY PRESIDENT: Can I have appearances please? Who is appearing before me this morning? Mr McCutcheon is it?

PN2

MR McCUTCHEON: Yes sir and I represent the employer.

PN3

MR B. JEFFREY: Mr Deputy President, I'm Barry Jeffrey and I'm representing the administration staff.

PN4

THE DEPUTY PRESIDENT: Thank you Mr Jeffrey. There are a few questions I need to ask you so if you can respond to those questions so that we can try and facilitate the certification of this agreement and there is some requirements of the Act, and very specific requirements in terms of timing and discussion with employees etcetera. On the statutory declaration of Mr Jeffrey it identifies a couple of dates. One it identifies a date that the agreement was made, it was on 15 April but then it identifies a later date of 16 April. On item 5.2, "On what date was the agreement made?", it says 15 April, and on item 5.12.3 it says, "Notice was again provided of intention to make an agreement was varied on 16 April". Do either of you have any comments? Can you just tell me what the dates were and what happened and why there is a discrepancy.

PN5

MR JEFFREY: Well, Mr Deputy President, if I might just answer that one. The 15 April is the date the amendment was made. When I completed the statutory declaration, the 16 April, that was the date of notification to the administration staff that the agreement had been made on the 15th so it was probably an error on my part.

PN6

THE DEPUTY PRESIDENT: So what you are saying is that the agreement was made on the 15th.

PN7

MR JEFFREY: Yes.

PN8

THE DEPUTY PRESIDENT: And prior to that date the administration staff had access to the agreement, they knew what the agreement was and they were notified on the 16th that it had been made on the 15th.

PN9

MR JEFFREY: Yes, yes. That is right. That is correct.

PN10

THE DEPUTY PRESIDENT: I see what you are saying, yes. Now can someone tell me as well, the requirement is that the application for certification is made 21 days after the making of the agreement. Now, by my rather poor maths, that means that the agreement should have been applied for here prior to 10 May - should have been applied for on either 5 or 6 May but it wasn't applied for until 10 May. Is there any reason why there was that delay?

PN11

MR JEFFREY: Mr Deputy President, I believe that this was dated 7 May which, taking your maths as correct, was still a little late but I think at that stage there was annual leave and a little uncertainty as to who should be signing on behalf of the Busselton Water Board. So that's the only reason I can suggest there. I think you were on annual leave at that stage, David.

PN12

THE DEPUTY PRESIDENT: Mr McCutcheon, do you have any comment?

PN13

MR McCUTCHEON: I was the person, Mr Deputy President, that was on annual leave at that time and disappeared out of the community and I guess I was the hold-up in the signatory.

PN14

THE DEPUTY PRESIDENT: Yes.

PN15

MR McCUTCHEON: And just on the previous question too, I think the 15 April was the date that the Board actually gave their approval to the document and then Barry, on behalf of the employees, commenced working on the day after that, on the 16th.

PN16

THE DEPUTY PRESIDENT: Oh, I see. So administratively what happened was that the Executive agreed with the staff that the formalities were that it had to be approved by the Board.

PN17

MR McCUTCHEON: Yes.

PN18

THE DEPUTY PRESIDENT: And that following that the staff were informed that that had, in fact, occurred. Is that what the procedure was?

PN19

MR McCUTCHEON: That is correct, Mr Deputy President, yes.

PN20

THE DEPUTY PRESIDENT: And the delay - is there any change in the - I assume not, but any change in the workforce or any other changes that would have occurred between the time of making the agreement and 10 April?

PN21

MR McCUTCHEON: No, Mr Deputy President.

PN22

THE DEPUTY PRESIDENT: No reason to believe that there is anything that would have happened during that period that would have changed the attitude of anybody?

PN23

MR McCUTCHEON: No reason whatsoever, Mr Deputy President.

PN24

THE DEPUTY PRESIDENT: Okay. Well I will grant leave that the time requirement for the filing of the agreement and notice to the Commission of the intention to have it certified, the time limit be extended to allow it to come within the scope of the requirements of the Act and I extend the time until 10 May when the notification was made to this Commission. Now if I could just refer you to the agreement itself and you will need to understand that there is no power here to alter the agreement but for the purposes of the record it probably facilitates any later issues that could arise following its certification about what the intent of the parties were so I will take you to some provisions in the agreement.

PN25

Clause 2 of the agreement identifies the parties as the Busselton Water Board and Administrative Staff employed under the Local Government Officers (Western Australia) Award 1999 Federal. That's fine but then it says, "or the Local Government Racecourses Council Employees Union". I take it those words starting with "or" are really superfluous?

PN26

MR McCUTCHEON: Yes, Mr Deputy President. I would agree with that but the reason why that was included, my understanding is that one of our employees in fact belongs or has the opportunity to belong to the two unions because she works in the depot where the outside work is established. She's actually an administrative officer but she's employed out there as a depot clerk and I think that's the only reason why we would have included that in the agreement.

PN27

THE DEPUTY PRESIDENT: Okay. So, see 1, it says, "Administrative staff employed under". Can you ignore "Employed under the Local Government Union"? I mean, it is not an instrument, it is a union. But that's the intention that it is intended to cover an individual who may not be employed under that award.

PN28

MR McCUTCHEON: That's right.

PN29

THE DEPUTY PRESIDENT: Okay. Thank you. Then on page 10.8, just a slight technical issue I think, just for the place of clarity. 10.8, it says, "Busselton Water", that is the Busselton Water Board, the party to the agreement you are referring to there obviously.

PN30

MR McCUTCHEON: That's correct, Mr Deputy President. We are officially known as Busselton Water Board but more corporately we call ourselves, "Busselton Water".

PN31

THE DEPUTY PRESIDENT: Thank you. It might be that you have a definition in the next agreement just to flow it through the agreement a little more easily. Then after clause 12 there's another page prior to the signatories and it's not a clause number or anything, it's just got, "Right of Entry". What is that? Is that supposed to be in the agreement or is it a late edition or something and should be clause 13 or what is the - - -

PN32

MR McCUTCHEON: I guess, Mr Deputy President, a heading to that would be quite appropriate although it's a matter that does deal with union membership, it follows on from "Union Membership", "Union Fees" and then "Right of Entry by the Union", but I agree with you it perhaps should have a heading.

PN33

THE DEPUTY PRESIDENT: I think if we do give that a heading, I can make some adjustment of that nature. We will call it, Clause 13: Right of Entry, but that is intended to be in there.

PN34

MR McCUTCHEON: It is, certainly intended to be in there, sir, yes.

PN35

THE DEPUTY PRESIDENT: Okay. Thank you Mr McCutcheon. Is there anything else you wish to add either of you? I take the silence to mean no.

PN36

MR McCUTCHEON: Mr Deputy President, I was just going to thank you for your consideration of this and perhaps apologise in so much that we don't have a great deal of experience in our organisation in handling these issues where there was no union involved whatsoever in the whole arrangement although the unions were invited to be involved but in the end chose not to so we inexperienced in this type of thing have done our very best and I thank you for accepting it.

PN37

THE DEPUTY PRESIDENT: Well you don't have to apologise for your inexperience or otherwise Mr McCutcheon. The framework of the Act is such that it encourages employers and employees with or without unions to formulate agreements and you have formulated an agreement. The main thing is that you both - well the workers and the Water Board understand what the content of that agreement is and I'm pleased that you were able to reach agreement. I'm sure with replacement agreements and as you get more familiarity and experience with the nature of this agreement and perhaps other agreements then some of the technicalities will not seem so technical.

PN38

So I will certify this agreement this morning. It is an application to certified agreement pursuant to section 170LK of Division 2 of Part VIB of the Workplace Relations Act. The agreement is to be known as the Busselton Water (Administrative Staff) Enterprise Bargaining Agreement 2002. Having heard what the parties have said this morning and more especially having read the statutory declarations, the requirements of the Act and rules of the Commission have been met. Specifically I am satisfied that the agreement has been entered into in a manner consistent with the requirements of the Act, that the employees have been given the relevant notice of the intention to enter into an agreement, that the terms of the agreement have been explained in an appropriate way to employees to be covered by it and the agreement has been approved by a valid majority of employees at the relevant time.

PN39

The agreement was not lodged within the time prescribed by the Act but sufficient reasonable explanation for that has caused me to allow an extension of the time of that requirement to 10 May. I am also satisfied that the Busselton Water Board is indeed a constitutional corporation and the agreement applies only to that organisation. It's clear and I find that the agreement meets no disadvantage test as defined in the Act, indeed there is no reduction in the overall terms and conditions of employment specified in the Awards which will now cover employees covered by this agreement.

PN40

The agreement contains the necessary dispute resolution clause in clause 10.8 of the agreement and there's no provisions in it that are inconsistent with Division 3 of Part V1A which would prevent me from certifying it and as I indicate that the agreement will be certified with effect from today's date, it will operate according to its terms and it will remain in force until 31 May 2005.

PN41

I congratulate the parties on reaching the agreement and hope that it is conducive to successful operation for both parties. Given I have got a reasonable familiarity with Busselton, in fact I drive past the Water Board premises every month or so because my parents are very happily living down there, so I hope the supply of water to everyone, including my parents, is as efficient as it has been in the past. Thank you gentlemen. This is adjourned.

ADJOURNED INDEFINITELY [9.48am]