AG2002/4057, Transcript of Proceedings [2002] AIRCTrans 3227 (21 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

AG2002/4057
AG2002/4058
AG2002/4059
AG2002/4060
AG2002/4061

APPLICATIONS FOR CERTIFICATION
OF AGREEMENTS

Applications under section 170LJ of the Act
by the Commonwealth Bank of Australia Ltd
for certification of the Commonwealth Bank
of Australia (Core) Enterprise Bargaining
Agreement 2002, Colonial Employees (Top)
Enterprise Agreement 2002, Commonwealth Bank
of Australia Technology, Operations and
Procurement Enterprise Bargaining Agreement
2002, Commonwealth Bank of Australia Retail
Banking Services Enterprise Bargaining
Agreement 2002 and the Commonwealth Bank of
Australia Direct Banking Enterprise
Bargaining Agreement 2002

SYDNEY

4.33 PM, TUESDAY, 6 AUGUST 2002

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: I'll take appearances, please?

PN2

MR P. HILL: Good afternoon, your Honour. I appear for the Commonwealth Bank and Colonial Services; and I appear with MR N. ELVIN this afternoon.

PN3

MS GRAYSON: If it please the Commission, I appear on behalf of the Finance Sector Union. With me today is MS L. THOMAS, also from the Finance Sector Union.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. As the parties will be aware from the manner in which the matters were called, I intend to deal with them in globo. The simplest way of explaining that is that there will be one decision. I've read the statutory declarations from both sides. I will now hear what the parties wish to say in addition to relying on those statutory declarations.

PN5

MR HILL: Your Honour, there are five applications for certification under division 2, part VIB of the Act. If I may, I will briefly refer to the four enterprise agreements that relate to employees employed by the Commonwealth Bank.

PN6

Sir, there are four of those agreements that relate to separate business units within the Commonwealth Bank. One agreement relates to Technology, Operations and Procurement; another agreement relates to Retail Banking Services; a further agreement relates to Direct Banking; and an additional agreement relates to a number of business units that are titled the "Core". Sir, in respect to those four enterprise agreements there are supporting statutory declarations by Mr Elvin which address the statutory tests. Might I briefly take your Honour to the process that has been involved in making these agreements?

PN7

Each agreement was approved by a telephone ballot and that ballot was conducted by an independent party, independent from the union and the bank, and it was conducted on 2 August. Each of those Commonwealth Bank agreements was approved by over 90 per cent of those staff who voted. Staff also had access to the EBA as the statutory declarations state, in accordance with the minimum 14-days requirement under the Act, and the changes in each of those EBAs were explained consistent with the requirements under the Act.

PN8

The no disadvantage test: each of the declarations deposes, at paragraph 7.2, that certification would not result in a reduction in the employees' overall terms and conditions compared with the bank's award. Your Honour, each of the EBAs carries forward changes from previous bargains. In fact, sir, the changes that these EBAs make are improvements to salary and the operation of the performance-related pay system. The EBAs do not, this round, detract from any terms and conditions that employees have had or have enjoyed in previous bargains.

PN9

THE SENIOR DEPUTY PRESIDENT: There is one query which I should raise with you now because it springs from what you have just said. Is the weekend work provision a carry-over provision or anew provision?

PN10

MR HILL: It's a carry-over provision.

PN11

THE SENIOR DEPUTY PRESIDENT: Carry-over? Very well.

PN12

MR HILL: Sir, each of the Commonwealth Bank agreements provides a choice of 4 per cent increase to salary or a 3 per cent increase to salary plus a 1 per cent increase to employer-accredited superannuation. Secondly, sir, each of the bank agreements provides for improvements to the performance-related pay system that was introduced in the 2000 EBA.

PN13

Those in essence, in my submission, are really at the kernel of the changes that are brought about by these agreements. They are really improvements to the salaries for staff and an improvement to the performance-related pay provisions of the 2000 EBA. Your Honour, each of the Commonwealth Bank agreements contains a dispute procedure which confers a conciliation power only on the Commission; and the EBAs have a nominal expiry date of 2 April 2004.

PN14

Your Honour, could I briefly turn to the Colonial Employees (Top) EBA? That is an EBA between Colonial Services and the Finance Sector Union. In support of that application that brings that agreement before you there is also a statutory declaration of Mr Elvin. That similarly was approved by staff in a telephone ballot on 2 August, which was also conducted independently by the same group that conducted the ballot for the CBA agreements.

PN15

Sir, staff had access to those agreements and changes were explained consistent with the same process that was adopted in relation to the Commonwealth Bank agreements. At paragraph 7.2 of the statutory declaration in support of the Colonial instrument, it is declared that certification would not result in a reduction, in overall terms, of the terms and conditions of employment and again, sir, consistent with the CBA suite of agreements, the changes brought about really by the Colonial instrument relate to salary and relate to performance-related pay in essence. There is no detraction in terms and conditions under the Colonial instrument, detraction from the 2001 EBA. Sir, the terms and conditions of the Colonial enterprise agreement contain a dispute procedure consistent with the Act, and it also has a nominal term of 2 April 2004.

PN16

Sir, I commend these agreements to the Commission and Colonial services and the Commonwealth Bank would today seek that they be certified in accordance with the Act. If the Commission pleases.

PN17

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Hill. Yes, Ms Grayson?

PN18

MS GRAYSON: Thank you, your Honour. Your Honour, the parties are before you today seeking the Commission's approval for the certification of five agreements under Division 2 of the Workplace Relations Act 1996. These agreements are section 170LJ agreements and are titled as follows: Commonwealth Bank of Australia (Core) Enterprise Bargaining Agreement 2002, Commonwealth Bank of Australia Retail Banking Services Enterprise Bargaining Agreement 2002, Commonwealth Bank of Australia Direct Banking Enterprise Bargaining Agreement 2002, Commonwealth Bank of Australia Technology, Operations & Procurement Enterprise Bargaining Agreement 2002 and the Colonial Employees (Top) Enterprise Bargaining Agreement 2002.

PN19

I would like to outline briefly to the Commission the changes that are common to the 2002 agreements. The first of these is the salary increases for staff covered by the agreement. The change involves an increase for May 2002 which will be back-dated by the payment of a lump sum in the next pay period after certification. This salary increase consists of a choice between 4 per cent increase to an employee's salary or a 3 per cent increase to an employee's salary plus a 1 per cent increase to their superannuation.

PN20

The parties have also agreed that a further salary increase of 4 per cent, or 3 per cent plus 1 per cent, will be paid to all staff in July 2003 back dated via a lump sum payment to 16 May 2003.

PN21

Further, as Mr Hill has said, the parties have agreed that performance pay will be paid on members' actual salaries as increased by the 4 per cent and that employees with more than three months' service but less than 12 months service as at 30 June each year will be entitled to pro rate performance pay if they receive a PSR rating that meets expectations or higher.

PN22

The only other negotiated outcome is the inclusion of a staffing clause for the first time in the CBA TOP and Direct Banking agreements, at clauses 16(a) and 14 respectively. The staffing clauses in question provide that staffing levels will be reviewed on a regular basis, that all reasonable steps will be taken to fill vacant positions promptly consistent with business needs, and that education of line managers on staffing will occur.

PN23

We are happy to report that there were no trade-offs in conditions as part of these enterprise agreement outcomes. As part of the negotiated outcomes but outside of the agreements themselves, the bank has also agreed to retain permanently in bank policy a statement to the effect of:

PN24

GCs who are promoted to a higher graded position will get the higher of the new basis salary or their current salary plus 2.5 per cent.

PN25

The bank has also committed that GC staff who are currently positioned on columns which have been deleted from the 2002 agreements will continue to receive their current salary plus the increase in whichever format they elect.

PN26

A further commitment has been given by the bank that it will provide the FSU with the figures on the number of employees who elect to take up the superannuation and salary remuneration option. The bank has also agreed that there will be a new inclusion in the performance, feedback and review policy covering all award EBA staff, which is as follows:

PN27

The bank expects that employees will generally be able to meet the requirements of their role within their normal scheduled hours of work and that work targets and objectives will be fair and reasonable. This new element of the PFR policy will be communicated to employees across the bank.

PN28

These commitments are summarised in a letter from the FSU to the bank of 19 July 2002 which I would seek to tender as an exhibit.

PN29

THE SENIOR DEPUTY PRESIDENT: Any objection, Mr Hill?

PN30

MR HILL: No, no objection.

PN31

THE SENIOR DEPUTY PRESIDENT: I will mark the letter of

PN32

19 July 2002 to Mr Hill from Mr Riordan as exhibit FSU1. It will be placed in file AG2002/4057.

EXHIBIT #FSU1 LETTER TO MR HILL FROM MR RIORDAN DATED 19/07/2002

PN33

MS GRAYSON: Thank you, your Honour. Further, in a letter from the bank to the FSU of 15 July 2002, a range of commitments were made as an element of the resolution of the 2002 enterprise bargaining on the basis that there are two agreements covering employees in the business unit of Technology, Operations and Procurement. I would seek to tender that letter as an exhibit in today's proceedings.

PN34

THE SENIOR DEPUTY PRESIDENT: Any objection?

PN35

MR HILL: No objection.

PN36

THE SENIOR DEPUTY PRESIDENT: I'll mark the letter of 15 July 2002 to Mr Riordan from Mr Scrimshaw as exhibit FSU2 and it will be placed in the same Commission file as FSU1.

EXHIBIT #FSU2 TO MR RIORDAN FROM MR SCRIMSHAW DATED 15/07/2002

PN37

MS GRAYSON: Thank you, your Honour. The commitments made in that letter are also endorsed by the General Manager of Group Human resources in his letter to the FSU of 18 July 2002. These commitments are as follows:

PN38

That TOP will continue to employ new staff under both the TOP CBA EBA and the Colonial Services (Top) EBA during the nominal term of the agreement having regard to the work environment ie whether the work undertaken can be categorised as CBA or Colonial work and whether the workplace can be categorised as either CBA or Colonial.

PN39

Also:

PN40

That at the expiry dates of the respective agreements the number of staff employed under the Commonwealth Bank of Australia Technology, Operations & Procurement Enterprise Bargaining Agreement 2002 would be at least 60 per cent of TOPs Award EBA staff.

PN41

The final commitment in that letter, your Honour, is:

PN42

That by the end of 2002 100 employees engaged as casual staff will be progressively employed by TOP under either the Colonial Services or CBA Agreement.

PN43

As the final part of these proceedings I would like to bring the Commission's attention to changes that have been made to the agreements subsequent to the agreements being distributed to employees. These minor amendments were made by agreement to ensure the parties' intentions were accurately expressed. The changes rectify typographical errors, make all cross-references accurate, amend erroneous references and remove ambiguity, and have been detailed in statutory declarations of the parties. The changes to words reflect what would have been assumed by eligible employees.

PN44

The following changes, apart from typographical, cross-referencing and formatting, were made to all of the CBA agreements excluding the Colonial (Top) Agreement, and are as follows. References in the Australian workplace Agreements clause, which is located at clause 13 in the Rail Banking Services Agreement and at clause 11 of the other CBA agreements, to be worded as "institutional banking section of institutional and business services" rather than "institutional and business services". This is to reflect more accurately current bank structure and the agreed long-standing practice that AWAs can only be compulsory within institutional banking. Institutional banking is now a distinct section of the larger business unit referred to as Institutional and Business Services.

PN45

Also, your Honour, references contained in clause 35.2.2 of the Core Agreement and in 36.2.2 of the other three agreements, to the Casual Officers Adecco Award 1993, have been altered to say the "Casual Officers Adecco Award 2001" to reflect the updated title of the newly simplified award.

PN46

The final amendment, your Honour: the final two paragraphs in the salary increase clauses located at clause 18 of the Core and CBA TOP agreements and at clause 19 of the RBS and Direct Banking agreements, has been reworded to remove an obsolete reference to categories of pay rates that are no longer contained in the schedules of the 2002 agreements.

PN47

The final change made to any of the agreements relates solely to the Colonial Employees (Top) Enterprise Agreement 2002 and is the reinsertion of the definition of "remuneration" at clause 1.3 in the same form as is in the preceding agreement as this was removed in a formatting error.

PN48

All changes made to the agreements, including those just detailed and the minor formatting, cross-referencing and typographical errors, are contained in a letter from the FSU to the bank dated 1 August 2002 which I would seek to tender as an exhibit.

PN49

THE SENIOR DEPUTY PRESIDENT: Any objection?

PN50

MR HILL: No objection, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: The copy of the letter of 1 August 2002 to Mr Hill from Ms Grayson I will mark as exhibit FSU3 and place it n file AG2002/4057.

EXHIBIT #FSU3 LETTER TO MR HILL FROM MS GRAYSON DATED 01/08/2002

PN52

MS GRAYSON: In conclusion, your Honour, the FSU seeks the Commission's approval for the certification of the five agreements on the grounds that the agreements involve no reductions in conditions and provide some benefits to employees. If it please the Commission.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Grayson. There are a couple of queries that I have. Whoever wishes can answer them. If an employee's division is changed there is provision for an employee to move from one division to another. Does - and I quote - "duration of this agreement" carry on past the normal termination date of either agreement?

PN54

MR HILL: I think it is the case, your Honour, that if the division changes the employee takes the agreement with them - - -

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, that's right.

PN56

MR HILL: - - - beyond the normal term. It's for the duration of the complete time: whilst the agreement is in operation rather than just the normal term. I think that's the understanding.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, good. That's certainly the better position. This is a comment; it doesn't require anything. I preferred the FSUs statement that each agreement applies to a distinct part of the bank's single business rather than the bank's reference to the whole of a - and that's the query really. The expression is clear enough but just what "whole" it is is perhaps not clear to me. I simply note that I regard them as distinct parts of a single business.

PN58

Finally, I need to have you clarify on the record your intentions about the disputes settlement. If you compare the union's clause 7.7 of it's statutory declaration with the bank's 7.7 of its statutory declaration, there could be potentially trouble.

PN59

MS GRAYSON: Can I respond to that, your Honour? The FSU is of the view that the dispute resolution procedure provides for conciliation except in regard to the part-time employees clause.

PN60

THE SENIOR DEPUTY PRESIDENT: Which is nominated in the bank's - - -

PN61

MS GRAYSON: That's correct. Thank you, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Fine; that has cleared that up. In view of the past, I didn't want there to be any doubt in anybody's mind about what was meant. Very well, armed with all of that I can proceed to a decision in all of the matters and I do so.

PN63

These are applications by the Commonwealth Bank of Australia Ltd in respect of AG2002/4057, 4059, 4060 and 34061 and by Colonial Services Pty Limited in respect of AG2002/4058, and the Finance Sector Union of Australia for certification of agreements made pursuant to section 170LJ of the Workplace Relations Act 1996.

PN64

The agreements are to be known as the Commonwealth Bank of Australia (Core) Enterprise Bargaining Agreement 2002, the Commonwealth Bank of Australia Technology, Operations & Procurement Enterprise Bargaining Agreement 2002, the Commonwealth Bank of Australia Retail Banking Services Enterprise Bargaining Agreement 2002, the Commonwealth Bank of Australia Direct Banking Enterprise Bargaining Agreement 2002 and the Colonial Employees (Top) Enterprise Agreement 2002.

PN65

On the basis of the statutory declarations filed herein and on the submissions made today at the hearing, I am satisfied the agreements relate to distinct parts of a single business, the organisation the Finance Sector Union of Australia has at least one member employed in each of the businesses to which the agreements apply and it is entitled to represent the industrial interests of such members, the employers are constitutional corporations for the purposes of the Act, the agreements were genuinely approved by a valid majority of the persons whose employment will be subject to the agreements and that no alterations to the terms of the agreements were effected. In reaching this last conclusion I have taken into consideration the typographical and other errors and elucidations drawn to my attention by the parties.

PN66

I find further that the communication and explanations of the terms of the agreements were appropriate and met the requirements of the Act. The applications to the Commission were made no later than 21 days after the approval referred to above was given. The agreements satisfy the requirements of the no disadvantage test expressed in section 170XA of the Act. I note that that the parties have supplied a proper comparison between the agreements and the award in the statutory declarations and that the union states there are no new trade-offs of conditions.

PN67

The agreements contain appropriate dispute settling procedures and what they mean have been clarified on the record this afternoon. The agreements specify a nominal expiry date of 2 April 2004 which is not more than three years after they come into operation. There are no reasons set out in section 170LU of the Act why the Commission must refuse to certify the agreements.

PN68

The applications are granted with effect from today, 6 August 2002. The agreement terminate a bargaining period recognised by the Commission as BP2002/1529. Formal certification will issue in due course. I congratulate the parties on the relative speed and the certain industrial efficiency with which they have come to the position they find themselves in today. I adjourn these matters indefinitely. I adjourn the Commission indefinitely.

ADJOURNED INDEFINITELY [4.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 LETTER TO MR HILL FROM MR RIORDAN DATED 19/07/2002 PN33
EXHIBIT #FSU2 TO MR RIORDAN FROM MR SCRIMSHAW DATED 15/07/2002 PN37
EXHIBIT #FSU3 LETTER TO MR HILL FROM MS GRAYSON DATED 01/08/2002 PN52