AG2002/2522, Transcript of Proceedings [2002] AIRCTrans 2278 (21 June 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT04363

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2002/2522

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by the Yooralla Society of Victoria for
certification of the Yooralla Ability Press
Certified Agreement 2002

MELBOURNE

3.49 PM, THURSDAY, 6 JUNE 2002

PN1

MR L. BLIGNAUT: I seek leave to appear, Commissioner. With me today is MR J. BURNS of Yooralla.

PN2

THE COMMISSIONER: Thank you, Mr Blignaut. Yes, leave is granted. Is there somebody who signed it on behalf of employees?

PN3

MR BLIGNAUT: Yes, the agreement has been signed on behalf of the employees but none of them are attending today.

PN4

THE COMMISSIONER: I see. Thank you. Now, we have determined, pursuant to section 170XF, an award for the no disadvantage test. Do you want to - is there anything in particular you wish to take me to?

PN5

MR BLIGNAUT: Commissioner, yes. Just a couple of points of interest. First of all, the feature of this agreement is that it concerns a large number of disabled employees. The workplace employs approximately 19 people of whom 10 of them are disabled employees. Only two employees currently at the workplace enjoy award coverage. They are both supervisory employees and they are covered as set out in the statutory declaration by the Disability Services Award. The vast majority of the employees enjoy no industrial instrument whatsoever.

PN6

A feature of this agreement in respect of the supported employees, that is, the disabled employees, is that it guarantees them an annual increase in line with the national wage case. So irrespective of what happens they will get an increase every year. A further feature of the agreement is as the supported employees develop further skills and competencies they can move up through the pay rate of the agreement and every movement up will inevitably bring higher terms and conditions of employment especially in respect of wages.

PN7

Now, it should be borne in mind that these are people that find it very hard, extremely difficult to find employment in the open market. And this is another feature of the workplace. It caters especially for disabled employees and it is really a training workshop from whereby they can go to another place if they can find employment in the open market. In as far as the two awards are concerned I would like to hand up tables which could assist the Commission. The one is a table concerning the disability service award and the other table marked JPB8 - that is old numbering - concerns the designated award.

PN8

In it the various terms which are at variance with one another are compared and it is my submission that on an overall comparison there is no reduction in the terms and conditions of employment. As a matter of fact I would go as far as to submit there is a substantial improvement, especially in as far as wages are concerned. For the supervisory employees, those covered by the Disability Services Award, they have the right to salary package and that is over and above a wage which is already in excess of the minimum wage.

PN9

As far as the supported employees are concerned the base, which is J1 of the table attached to the agreement, is higher than the one in the designated award and as I said they have the ability to an increase every year. A further difference between the agreement and the designated award is, in terms of the designated award, if there is a disagreement about the assessment of an employee in terms of the wage table the employer and the union has to come to an agreement to do that.

PN10

At Yooralla there is no union but what we have done in the agreement and specifically in clause 15 is bold in a clause whereby a supported employee, if dissatisfied with these conditions of employment - if we can go to clause 15 and specifically 15.13 - the supported employee can access an independent third party to break the deadlock. The supported employee also has the right to refer any dispute coming therefrom to the Commission for arbitration in terms of this agreement. So the point I am trying to make is that there is an objective deadlock breaking system for an employee that feels aggrieved with his position on the wage table.

PN11

So I submit that the no disadvantage test has been passed. My further submission is that this agreement was explained to the employees by qualified independent trainers, that when it came to the supported employees, he used tables to explain the terms and conditions of employment to them. So I submit that the terms and conditions of employment have been explained in circumstances and in a way that was appropriate for the certification of the agreement, and I request that it be certified. If there is any questions the Commission would like to ask - - -

PN12

THE COMMISSIONER: Yes, Mr Blignaut, if I may. The ordinary hours, you haven't included - I note the flexibility that you seek to include, but it doesn't appear, unless I have missed it, that you have included a spanning which ordinary can be worked. Am I correct there?

PN13

MR BLIGNAUT: If you can just bear with me, Commissioner.

PN14

THE COMMISSIONER: Certainly. If I look at the first document that you handed up to me - well, it is in both. Your ordinary hours, you say, ordinary hours will be an average of 38 hours per week in any four week period.

PN15

MR BLIGNAUT: Yes.

PN16

THE COMMISSIONER: And the length of the day shall not exceed 12 hours. Now there was, what, a 12 hour spread in the spread of hours previously, 7.30 am to 7.30 pm. But you don't seem to say when those ordinary hours can be worked. What is the practise? I would be concerned, for example, if somebody said well, your ordinary hours will now be midnight to midday, and your agreement purports to facilitate that. That is the only thing that I am - - -

PN17

MR BLIGNAUT: If I just may, Commissioner. First of all, I think the agreement, and I will find it for you - - -

PN18

THE COMMISSIONER: Yes.

PN19

MR BLIGNAUT: - - - says that a supported employee will not be rostered to work after 3 o'clock - - -

PN20

THE COMMISSIONER: I see.

PN21

MR BLIGNAUT: - - - and in a shift that commences after 3 o'clock in the afternoon.

PN22

THE COMMISSIONER: I see.

PN23

MR BLIGNAUT: As far as practise is concerned - a further feature is they will not be rostered to work on a weekend without their agreement.

PN24

THE COMMISSIONER: I see, so it is self-regulating, in that sense, and what you have now sought to do is, if you like, put some flexibility into your rostering capacity. I follow. I follow. All right. No, I don't have any other questions, thank you very much. I am in a position to announce a decision in relation to this matter.

PN25

This is an application for the certification of an agreement entitled Yooralla Ability Press Certified Agreement 2002. I have examined the agreement and the statutory declaration. I have examined the material afforded before me, and that I am satisfied that on balance, the agreement complies with the provisions of the Workplace Relations Act 1996 and I will certify the agreement. The agreement will be certified from today and it shall operate in accordance with its terms. Thank you, Mr Blignaut. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [3.58pm]