C2002/115, Transcript of Proceedings [2002] AIRCTrans 3090 (9 August 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N WT05175

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2002/115

WESTERN AUSTRALIAN CREDIT UNIONS
AWARD 2001

Application under section 113 of the Act
by the Health Services Credit Union Society
Ltd to vary the above award re Safety Net
Review - Wages 2002

PERTH

2.04 PM, MONDAY, 29 JULY 2002

PN1

MR S. FOY: I appear as agent for the applicant.

PN2

MS STACEY: I appear on behalf of the Finance Sector Union of Australia.

PN3

THE DEPUTY PRESIDENT: Ms Stacey. Mr Foy?

PN4

MR FOY: Yes, sir. The application before you is an application to vary the Western Australian Credit Union's Award 2001, specifically it seeks to insert some enterprise specific provisions in the redundancy clause. Sir, briefly the application arises from an arrangement which has been entered into and I don't know the fine art details, sir, but an arrangement between the applicant and Statewest Credit Society, whereby those two organisations will be merging from 1 August this year. And I understand that Statewest Credit Society will become the employer of the employees whom this application affects.

PN5

There are approximately 50 of those employees, sir, so employed. And the arrangement and the agreement that has been reached between the parties and those employees is that they will become employees of Statewest Credit Society on and from 1 August this year, with no break in the continuity of service and with their length of service carrying over for all accrual purposes and, in effect, no changes to their conditions of employment other than the change of name of their employer.

PN6

As I said, sir, the affect of the application is to seek an exemption from certain redundancy provisions within the award insofar as those provisions might affect the 50 or so employees, the subject of these proceedings. I'm not privy to earlier on discussions, sir, as to why the decision was taken to proceed with the manner in it's current form. It seems that regardless of the exemption there may in fact - or the exemption that is being sought, may in fact be somewhat superfluous in that in effect there really is no redundancy occurring anyhow. Be that as it may - - -

PN7

THE DEPUTY PRESIDENT: I wondered about that, it is a bit of belts and braces, isn't it?

PN8

MR FOY: Yes. Yes, it seems that way, sir, I suspect in fairness to the people who have dealt with this matter before me, that it was possibly people were erring on the side caution and wanting to make sure that all parties knew exactly what, in layman's terms, sir, let us say that all parties knew what the craic was before the event and I'm sure they've succeeded in doing so. As I say, sir, the application or my - certainly my understanding is that the application is to proceed by consent this afternoon.

PN9

I understand and I'm further instructed, sir, that the details of the application have been discussed with all the affected employees and that those employees have given their consent to the application proceeding in terms and in accordance with the draft order, which has been prepared in these proceedings. Sir, we say with respect to the application that it is one which can be commended to the Commission, one which should proceed and should be upheld. We say, sir, that specifically it meets various objects of the Act and certain objects of Part VI of the Act insofar as the application seeks to uphold and provide a legal footing for an agreement which has been reached at the enterprise level.

PN10

And such agreements we say, sir, are within the scope of the award making powers of this Commission and are capable of being awards of this Commission - are capable of being so varied to support those agreements. I had a look, sir, at the Commission's Statement of Principles in respect of this application and, satisfactorily or not, was left with the distinct view that they're really not particularly helpful, insofar as they neither specifically enable such an application to proceed nor prevent this application from proceeding.

PN11

THE DEPUTY PRESIDENT: Maybe because there is a view that it is unnecessary.

PN12

MR FOY: Yes, normally, sir, I would try and tie something back to the principles but I'm really at a loss on this occasion to tie anything back to the age fixing principles. I'm quite convinced that the application is not a special case and that it doesn't do anything to raise or lower the safety net and, therefore, there is no need for this matter to be referred to the President as though it were a special case. But neither am I able to find any specific enabling provision within the principles under which this application might be brought.

PN13

Really, sir, if I could characterise the claim, it seems to me to be one which is based on subclause 17.4.4 of the award. That is a fairly standard clause that arises from TCR and a clause which allows the employer to seek this Commission's approval for varying the termination change redundancy provisions within the award, should the employer find suitable alternative employment. In this case the employer is saying that they have find suitable alternative employment for these employees and that is their same jobs, in effect, with little change to the operations and no change to the conditions of employment or continuity of service. And having found that suitable alternative employment, seeks an exemption from certain provisions of - - -

PN14

THE DEPUTY PRESIDENT: And that is with the retention of any accruals of any form.

PN15

MR FOY: Retention of all accruals. Yes, sir.

PN16

THE DEPUTY PRESIDENT: Yes.

PN17

MR FOY: That is my instruction.

PN18

THE DEPUTY PRESIDENT: Okay.

PN19

MR FOY: And furthermore that, whilst it is not specifically necessary that they have obtained the agreement of the employees to this variation, and the exemption that is being sought, and they have obtained the agreement of the respondent union likewise. On that basis, sir, and as I say, the application being supported by the objects of the Act and Part VI of the Act, and no specific prevention that I can find within the Commission's Statement of Principles, we would commend the application to you and ask that the award be so varied, with effect on and from today's date.

PN20

THE DEPUTY PRESIDENT: There was service on all of the parties to the award, was there?

PN21

MR FOY: Yes, sir. I have on file a number of letters of service and declarations of service which I can produce for you, if required.

PN22

THE DEPUTY PRESIDENT: There is no need to produce them, but I just need to be sure that all parties to the award were afforded the opportunity to - - -

PN23

MR FOY: That is my instruction, sir. Perhaps I could simply read the names of the parties for whom I have declarations.

PN24

THE DEPUTY PRESIDENT: Actually they are on file here. That is unnecessary. Yes, thank you.

PN25

MR FOY: And I understand further, sir, that all those parties were also likewise served notice of this application in accordance with the Commission's rules.

PN26

THE DEPUTY PRESIDENT: Okay. Thank you, Mr Foy.

PN27

MR FOY: Thank you, sir.

PN28

THE DEPUTY PRESIDENT: Yes, can I hear from the respondent.

PN29

MS STACEY: Thank you. Deputy President, I can advise you that following an approach from the CCI, as agent for the Credit Union involved, and subsequent discussions that we are very comfortable with the variation that is being proposed. And we are happy for the matter to proceed with our consent.

PN30

THE DEPUTY PRESIDENT: Yes. Well, 50 or so employees with continued employment in the wake, I suppose, of a merger or takeover or whatever it was. So that is probably in everyone's interests that it proceed in this way and those employees retain all of their entitlements in this way.

PN31

MS STACEY: Yes, sir.

PN32

THE DEPUTY PRESIDENT: Thank you, Ms Stacey. Look, I have no reason to believe there is anything preventing this application, variation sought, being allowable both within terms of the provisions of the Act and within terms of the provisions of the principles. The award will, therefore, be varied in accordance with the amended application sought and will take effect on and from today's date. The paperwork for this will flow in due course. I won't issue any reasons for decision, other than what will be on transcript. So this matter is adjourned. Thank you.

ADJOURNED INDEFINITELY [2.24pm]