AG2002/3016, Transcript of Proceedings [2002] AIRCTrans 2392 (27 June 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT04425
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2002/3016

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
for certification of the Film Victoria
Enterprise Agreement 2001-2003

MELBOURNE

4.45 PM, WEDNESDAY, 12 JUNE 2002

PN1

MR D. McLAUGHLIN: In the matter of the certification of the Film Victoria Enterprise Agreement I seek leave to appear for Film Victoria and with me at the bar table is MS J. DRUMMOND, the manager of North Corporate Operations. As I understand it, Commissioner, you hadn't called on the other matter at the same time, you only called on the Film Victoria matter.

PN2

THE SENIOR DEPUTY PRESIDENT: The Moving - sorry, Australian Centre for the Moving Image?

PN3

MR McLAUGHLIN: Yes.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. I will deal with them one at a time.

PN5

MR McLAUGHLIN: All right.

PN6

MS S. O'MELEY: I appear on behalf of the Media Entertainment and Arts Alliance.

PN7

MR J. BENEDICT: I appear for the Community and Public Sector Union.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McLaughlin.

PN9

MR McLAUGHLIN: Yes, your Honour. This is an application to certify an agreement pursuant to section 170LJ of the Act. It is an agreement between Film Victoria and the Community and Public Sector Union State Public Services Federation Victorian Branch and the Media Entertainment and Arts Alliance. Your Honour, you should have on the file an application for certification signed by Julie Drummond dated 5 June 2002. There should also be a statutory declaration in the required form executed by Julie Drummond for Film Victoria. There should be a statutory declaration sworn by Karen Batt for the CPSU and a statutory declaration sworn by Serena O'Meley for the Media Entertainment and Arts Alliance.

PN10

THE SENIOR DEPUTY PRESIDENT: I do have those.

PN11

MR McLAUGHLIN: And of course, there should also be a signed copy of the agreement itself - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR McLAUGHLIN: - - - which has been signed by representatives of the three parties.

PN14

THE SENIOR DEPUTY PRESIDENT: I have those documents.

PN15

MR McLAUGHLIN: Now, your Honour, we would submit that the agreement complies with all the requirements of the Act and the statutory declarations declare to that fact. The agreement itself is sought to be certified with effect from today. It does contain a provision in it for wage increases which are to be back dated to 1 July 2001. However, we recognise that the commencement of the agreement's nominal life would be from today if certification were to occur. The life of the agreement now is only until 30 June 2003.

PN16

The agreement does contain a settlement disputes clause in clause 39 and we would submit that it does meet the no disadvantage test.

PN17

THE SENIOR DEPUTY PRESIDENT: Just on that, Mr McLaughlin.

PN18

MR McLAUGHLIN: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: You have had the benefit of my questions to the Mount Baw Baw people about your agreement. What do you say about scheduling? Again, if you look at clause 17 of the agreement - - -

PN20

MR McLAUGHLIN: Yes, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: - - - what is the meaning of scheduled hours on each day in the third paragraph of clause 17?

PN22

MR McLAUGHLIN: The provision in relation to casual employees under this agreement, the intention is that they would be genuine casuals, if you like, as distinct from part-time employees. So these would be intermittent, non-regular casuals. The agreement prescribes that they can work a maximum of eight hours and it would be when they work in excess of those eight hours that overtime would apply. In fact, I can go further than that, your Honour. If a casual is called in and they are told that they are required to work five hours, then if they work in excess of five hours then the overtime provisions would apply.

PN23

THE SENIOR DEPUTY PRESIDENT: Right.

PN24

MR McLAUGHLIN: I can't recall the other clauses you were looking at in the previous matter.

PN25

THE SENIOR DEPUTY PRESIDENT: Well, the other clause I went to is, in fact, the hours clause, that was the hours of work. That was only to clarify that that applied only to full-time employees and not to casual employees. Clause 21 says:

PN26

The ordinary hours of work for a full-time employee.

PN27

MR McLAUGHLIN: That is correct.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR McLAUGHLIN: A casual can be required to work ordinary hours outside those hours.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN31

MR McLAUGHLIN: But if they work beyond the hours that they have been told they are going to be working for up to the maximum of eight, in any event, then overtime would apply.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR McLAUGHLIN: If I could also perhaps just address, in the statutory declaration there is a reference to clause 29 and the fact that for the period 1 July 2001 to 3 June 2002 the minimum payable under band 1 classification is less than the minimum payable under grade 1 in the Arts and Entertainment Administration Award.

PN34

THE SENIOR DEPUTY PRESIDENT: That is the other question I asked: why is that?

PN35

MR McLAUGHLIN: It is - well, the fact is that will have no practical effect because there are no employees paid less than the minimum payable for grade 1 and, in fact, it is not quite the minimum because the Arts and Entertainment Award has recently gone through an exercise of being converted to a minimum rates award and so clause 17 of that award there is now columns which have minimum rate per annum and then former paid rates residual component and then there is a total award rate per annum and that has a minimum and a maximum rate.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR McLAUGHLIN: What was referred to here is that the band 1 classification in the agreement is actually marginally less than the minimum of the total award rate column. It is well in excess of - - -

PN38

THE SENIOR DEPUTY PRESIDENT: It says here - in the statutory declaration it says less than the minimum payable under grade 1.

PN39

MR McLAUGHLIN: Yes, yes. Strictly speaking, it is more than the minimum rate as it is now prescribed - - -

PN40

THE SENIOR DEPUTY PRESIDENT: I see.

PN41

MR McLAUGHLIN: - - - but it is less than the - - -

PN42

THE SENIOR DEPUTY PRESIDENT: So it is not less than that - - -

PN43

MR McLAUGHLIN: - - - minimum of the range of the total rate.

PN44

THE SENIOR DEPUTY PRESIDENT: Right. It is not less than the minimum rate as simplified.

PN45

MR McLAUGHLIN: That is right.

PN46

THE SENIOR DEPUTY PRESIDENT: Right.

PN47

MR McLAUGHLIN: And as I say, no employees are paid on that right. In fact, the minimum paid is the minimum of the total rate in the Arts Administration Award.

PN48

THE SENIOR DEPUTY PRESIDENT: All right. I think that was all the questions I had.

PN49

MR McLAUGHLIN: There are two issues that I need to bring to your attention.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR McLAUGHLIN: And they are relatively recent issues. One is in relation to clause 17 that is identified in the statutory declaration.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR McLAUGHLIN: There is a statement there that:

PN54

Casual employees are not entitled to allowances for evening, Saturday, Sunday or public holidays.

PN55

There has been an issue raised as to whether or not casuals should receive loadings for working on public holidays. There is - that is an issue that has, as I say, arisen recently and it is an issue that we need to discuss further between the parties. But we have agreed that we will have those discussions. If we can't resolve it the dispute resolution procedure in the agreement gives the Commission the power to determine such matters. And we have agreed that we will discuss that issue. If we can't resolve some differences of interpretation then we will bring the matter to the Commission for resolution, binding resolution.

PN56

THE SENIOR DEPUTY PRESIDENT: Where is the dispute settlement clause again, please?

PN57

MR McLAUGHLIN: Clause 39 in this agreement.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, that is right.

PN59

MR McLAUGHLIN: And it is actually 39.2.

PN60

THE SENIOR DEPUTY PRESIDENT: But if the agreement says that they are not to be paid for that on public holidays - - -

PN61

MR McLAUGHLIN: Yes.

PN62

THE SENIOR DEPUTY PRESIDENT: - - - what dispute do you see coming to the Commission?

PN63

MR McLAUGHLIN: The dispute is, in fact, whether or not they should be paid for that. If you have a look at, I think it is clause 17, and the last paragraph of clause 17 states:

PN64

Casual employees will receive a loading of 20 per cent in lieu of any entitlement to leave of any kind except long service leave and to compensate for the nature of casual employment.

PN65

In our view, that would mean there would be no payment of penalties for working on a public holiday. The public holiday clause simply reads, clause 37.4:

PN66

Employees are entitled to the following public holidays -

PN67

and then it goes on to - I am sorry, I think it might be in the overtime clause the payment as specified. Sorry, 37.4 talks about public holidays and just talks about employees.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, it doesn't say full time or part time.

PN69

MR McLAUGHLIN: No. And then clause 23 states that:

PN70

Public holidays are paid at 150 per cent in addition to the employee's ordinary hourly rate.

PN71

THE SENIOR DEPUTY PRESIDENT: But if the casuals are not paid allowances for working on public holidays wouldn't it put the agreement in the position of not passing the no disadvantage test or not?

PN72

MR McLAUGHLIN: We say no on the basis of all the other provisions because this has been prepared on the basis that they are not entitled to be paid public holidays.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. When I have examined all of the provisions that you have identified I understood that the failure to not pay public holidays would not mean that the agreement didn't pass the no disadvantage test.

PN74

MR McLAUGHLIN: That is correct.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes.

PN76

MR McLAUGHLIN: So if it is ultimately resolved that they should be paid public holidays then - - -

PN77

THE SENIOR DEPUTY PRESIDENT: Well, it is still all right.

PN78

MR McLAUGHLIN: Well, it is still all right; that is right. That is correct.

PN79

THE SENIOR DEPUTY PRESIDENT: Well, what are the arrangements for resolving the dispute?

PN80

MR McLAUGHLIN: Well, there needs to be further discussions between the parties and then if the matter can't be resolved then either party have an absolute right under the agreement to bring the matter to the Commission whose decision shall be final.

PN81

THE SENIOR DEPUTY PRESIDENT: Is there any timeframe or program for that?

PN82

MR McLAUGHLIN: No, there isn't. It has emerged relatively recently this issue and so we haven't had a chance to determine a timeframe.

PN83

THE SENIOR DEPUTY PRESIDENT: All right.

PN84

MR McLAUGHLIN: But no doubt, it needs to be dealt with probably before Melbourne Cup day, I would suggest.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, before there is any public holiday, in any case, yes.

PN86

MR McLAUGHLIN: I think that is the next one.

PN87

THE SENIOR DEPUTY PRESIDENT: All right. Anything else?

PN88

MR McLAUGHLIN: Yes, there is one other issue. Again, this has emerged relatively recently and it needs to be dealt with in the same process and it relates to the back pay of the 3 per cent to 1 July 2001 and its relationship to a safety net increase which was put into the Cinema - Entertainment Broadcasting Industry Cinema Award in August 2001. There is - sorry, for this agreement it is the arts award. The safety net increase was put into the arts award from 21 December 2001 and it is a matter that needs to be discussed further between the parties as to how that back pay relates to that safety net and whether it absorbs it or whether it doesn't.

PN89

And again, that is an issue that we need to further discuss and if it can't be resolved bring it back through the grievance procedure. But again - - -

PN90

THE SENIOR DEPUTY PRESIDENT: It won't affect the no disadvantage test.

PN91

MR McLAUGHLIN: It won't affect the no disadvantage test.

PN92

THE SENIOR DEPUTY PRESIDENT: Either way, is that what you are saying?

PN93

MR McLAUGHLIN: On the basis of the statutory declaration or declarations that have been put before you.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN95

MR McLAUGHLIN: On those submissions we seek certification of the agreement today.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr McLaughlin. Who wishes to go first, Ms O'Meley or Mr Benedict?

PN97

MR BENEDICT: Thanks, your Honour. I would just like to support what has been put forward by the employer and with particular reference to the process on the casual issue which we see is an interpretation issue which we are happy to deal with post certification through the disputes resolution clause and also the issue of the safety net adjustments. And I think we need to see the detail before we can make - see the details as to how those adjustments intend to be processed before we can actually come up with a position as to whether we agree with that processing or not.

PN98

So I would just like to support the proposal and process that has been put on the table by the employer. With relation to the broader agreement, the CPSU and its members have been involved in the fairly protracted negotiations from the outset. We have continued to brief our members during negotiations and at the culmination of those negotiations and we now believe we have a very comprehensive listing of terms and conditions of employment which we endorse. And our members have formally endorsed and we support the certification today and, again, believe it has met the requirements of the Act and would pass the no disadvantage test, even if the worst case scenario eventuated with the safety net adjustment issue and the casuals.

PN99

THE SENIOR DEPUTY PRESIDENT: Good. And you agree with Mr McLaughlin's interpretation of scheduled hours?

PN100

MR BENEDICT: Yes, yes.

PN101

THE SENIOR DEPUTY PRESIDENT: Casuals. Very well.

PN102

MR BENEDICT: Thanks, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Benedict. Ms O'Meley.

PN104

MS O'MELEY: Yes. We support the application as well and the process which has been outlined by the employer for resolving disputes. And we also agree with the interpretation of the scheduled hours.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, Mr Benedict, can I just clarify what the name of your organisation is for the purpose of the agreement?

PN106

MR BENEDICT: What the name of the organisation is?

PN107

THE SENIOR DEPUTY PRESIDENT: Yes.

PN108

MR BENEDICT: Community and Public Sector Union State Public Services Federation Victorian Branch.

PN109

THE SENIOR DEPUTY PRESIDENT: Very well. It is just not the CPSU then?

PN110

MR BENEDICT: That is the specific reference.

PN111

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Very well. This is an application pursuant to part VIB division 2 section 170LJ of the Workplace Relations Act 1996 to certify an agreement to be known as the Film Victoria Enterprise Agreement 2001-203, which I refer to as the agreement. Having heard Mr David McLaughlin, on behalf of Film Victoria, Mr Benedict, on behalf of the Community and Public Sector Union State Public Services Federation - sorry, State Public Services Federation Victorian Branch, and Ms O'Meley, on behalf of the Media Entertainment and Arts Alliance, and having read the statutory declarations filed by Julie Drummond, on behalf of Film Victoria, Karen Batt, on behalf of the Community and Public Sector Union State Public Services Federation Victorian Branch, Ms Serena O'Meley, on behalf of the Media Entertainment and Arts Alliance, I am satisfied that the agreement filed relates to a constitutional corporation that is a statutory corporation, namely Film Victoria.

PN112

I am also satisfied that the CPSU and MEAA have at least one member employed in the part of the single business - sorry, each has at least one member employed in part of single business to which the award relates and is entitled to represent the industrial interests of the members. I am also satisfied as to the following matters. The agreement passes a no disadvantage test. The agreement was made in accordance with section 170LJ of the Act and a valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved the agreement.

PN113

The explanation of the terms of the agreement was appropriate. The agreement includes procedures for preventing and settling disputes between the employer and the employee whose employment will be subject to the agreement. The agreement specifies as a date as a nominal expiry date which is not more than three years after the date on which the agreement will come into operation. I am also satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement.

PN114

Accordingly, the agreement will be certified with effect and in accordance with its terms from 12 June 2002. My decision and certificate will issue in due course but if the parties wish to wait for about 15 minutes after this matter is adjourned today, or after we adjourn today, the parties can be provided with a certified agreement then. Is there anything else in that matter?

ADJOURNED INDEFINITELY [5.07pm]