AG2002/2812, Transcript of Proceedings [2002] AIRCTrans 3360 (2 September 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/2812

FLINDERS RANGES COUNCIL ENTERPRISE
BARGAINING AGREEMENT NO 4 2002

Application under section 170LS of the Act
by The Australian Workers' Union, Greater
South Australian Branch and Another re
agreement about industrial dispute (Division 3)

ADELAIDE

11.36 AM, THURSDAY, 15 AUGUST 2002

PN1

MR R. SKUSE: I appear for the Australian Workers' Union.

PN2

MS L.E. JAMES: I appear for the Flinders Ranges Council.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Skuse.

PN4

MR SKUSE: Sir, this application again is made by the Australian Workers' Union and the - someone has given me the wrong file - and the Flinders Ranges Council. I shall struggle on.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Skuse, do you want a copy of the material provided to me? If you do, I am happy to provide you one on a loan basis.

PN6

MR SKUSE: I have got a copy of the agreement and the stat dec but I haven't, it seems, got a copy of the introductory letter but I will prevail and struggle through.

PN7

THE SENIOR DEPUTY PRESIDENT: You will wing it.

PN8

MR SKUSE: On a wing and a prayer. This application is between the Australian Workers' Union, of course, and the Flinders Ranges District Council and it is pursuant to section 170LS for certification of the Flinders Ranges Council and the AWU Enterprise Agreement No 4 of 2002. The agreement covers some 10 employees, all whom have been fully informed and consulted throughout the negotiation process. The agreement does provide for a dispute resolution clause and also has a renegotiation clause and a nominal expiry date of 24 months.

PN9

The agreement does provide a dispute resolution clause - I have just said that, sorry, sir. The agreement provides that the rates of pay will be increased by some 5 per cent for the first year and 3 per cent for the second year. These increases will be based on the supplementary payments, service pay, disability allowance and $5 annualisation of the allowances. The increases in the first instance will be retrospective to 24 February 2002 with the second increase payable on the anniversary of the first.

PN10

These increases are noted as per appendix A of the enterprise bargaining agreement. A statutory declaration was provided by Rob Skuse and lodged with the Commission confirming that the requirements of the Act have been met and being satisfied the statutory requirements have been met and there have been no reduction in the overall terms and conditions of employment, we request the Commission certify the agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Skuse. I do have some questions for you but I will hear from Ms James first.

PN12

MS JAMES: Thank you, Senior Deputy President. The Flinders Ranges Council supports the submission of the AWU this morning. This is a roll-over agreement. There are very few changes. The change does actually refer to four new sub-clauses of clause 18 which I know you wish to raise with the AWU so I will leave that matter until you raise that question. Clause 14 though is something I wish to raise with you as well. It does refer to the increase being paid only to members of the Australian Workers' Union. The intention of that clause is actually incorrect, all employees employed who are employed pursuant to the award are in fact getting that wage increase and the wage increases have already been paid as a matter of fact. So yes, that is a clerical error there, that it refers solely to only members of the union getting those wage rates.

PN13

THE SENIOR DEPUTY PRESIDENT: In fact it goes a bit beyond that, Ms James because clause 3 - - -

PN14

MS JAMES: I know.

PN15

THE SENIOR DEPUTY PRESIDENT: - - - purports to apply the agreement only to members of the Australian Workers' Union.

PN16

MS JAMES: It does and once again this is the tyranny of using old agreements when, in the old days, that is what it use to refer to but certainly that is not the intention of the agreement. I have actually spoken to Rod Skuse this morning and you may want to raise that with him as well. Apart from that, sir, in terms of the actual agreement there are no other changes.

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Skuse, can I take you firstly to clause 3 and to the provisions of that clause which establish the agreement will apply to the employer, to the Australian Workers' Union and to all employees of the employer who are members of that union.

PN18

MR SKUSE: Sir, I concur with Ms James on the position of because of using a previous agreement to take the draft from, the understanding that I've had through the negotiations and the intent that is meant is to be realised by the clause, I believe is a position that it was to read "who are eligible to be members of the Australian Workers' Union" as part of the paragraph and that has been left out. We plucked from the wording of a draft agreement that there was a position, in reality, who are members to take us away from a position of locking in just union members for a pay increase was not the intention.

PN19

We were and did work towards words to clarify that and I believe those words, from the notes that I have just picked up from the back of the file, were to read, for instance: employees of the Flinders Ranges Council who are eligible to be members. That we thought would have encompassed the whole lot of employees, whether union members or not. I believe that is what the intent and the spirit of the negotiation was to encompass all employees, not just a specific group.

PN20

THE SENIOR DEPUTY PRESIDENT: The employees who voted on the agreement, can you tell me whether they were all members of the union?

PN21

MR SKUSE: I can tell you, sir, seven were and three weren't.

PN22

THE SENIOR DEPUTY PRESIDENT: All of the employees were involved in the consultation that lead up to the agreement and voted on its ultimate approval?

PN23

MR SKUSE: All employees - the 10 employee of the council, as stated seven of those are registered members of the AWU, three are not and were fully aware and fully part of the negotiation and the consultation process leading up and the vote.

PN24

THE SENIOR DEPUTY PRESIDENT: In a related provision, as Ms James has already referred to clause 14, are you suggesting there is a similar error in that clause 14 reads such that the wage increase would only be available to members of Australian Workers' Union but the intention was it would be available to employees who are eligible to be members.

PN25

MR SKUSE: That is correct, sir. Not only was it meant to be that, that has occurred that all employees, the whole 10, have received pay increases that have been retrospective back to the date.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you clause 18 of the agreement and ask you to clarify for me the intention of the union in relation to clause 18(a) which I think probably has some mixed up numbering. I am referring to the second clause 18(a) on page 10 of the agreement, which reads:

PN27

If the issues remain unresolved either party may refer the matter to the Industrial Commission. Both parties shall endeavour to have the hearing as early as possible.

PN28

In this respect I have two questions. In which Commission did you intend to refer the matter to or are you in a position to answer that question and secondly, what is it that you would have, whichever Commission, do upon a reference because the clause talks about a hearing as soon as possible, hence I am interested as to whether the parties have considered whether a reference to an "Industrial Commission" whether it be the South Australian Industrial Relations Commission or the Australian Commission, should prompt either a hearing on the matter or an attempt at a conciliated outcome.

PN29

MR SKUSE: I am - in provision to the first question, sir, as to which Commission would be applicable, I am of the belief we would be looking at the Australian Industrial Relations Commission, as to where we are seeking to have the agreement certified and I believe that would be a general position of both council and the union and in relation to a hearing, again, using the excuse of picking up from previous agreements and not rolling in the new areas, would be a position that we would be seeking from the Australian Industrial Commission in reference to conciliation and then if the need be, arbitration.

PN30

THE SENIOR DEPUTY PRESIDENT: Ms James, you have a common understanding with Mr Skuse in this respect?

PN31

MS JAMES: Yes, we do, sir. I have spoken to council this morning on the matter and I confirm that we agree with the AWU's submission.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Skuse, one last question for you. Can I take you to clause 19 and seek some clarification of the intention behind that clause, particularly given that there are some practical limitations on the extent to which the agreement can be confined as a confidential document. I should say, if you want to have a quick word with Ms James in this respect, I am very happy for you to do so.

PN33

MR SKUSE: If I can just take a moment, sir, just to reflect back on the previous agreement. The understanding I have again, because these clauses are sometimes rolled on from old agreements but in relationship to the agreement, no way that it has been expressed to me that there is any intention that this is confidential in any way shape or form to be restricted from anybody's view.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms James, you would agree with Mr Skuse in that respect?

PN35

MS JAMES: Yes, I do, sir. When these first agreements were merged across our sector, there wasn't the electronic age that we now enjoy and, of course, agreements were probably more subject to being a confidential document. We all know these days anyone can access web sites and the agreements are freely available or you could have come to the Commission here anyway and picked up a copy of the agreement. We concur that there is no way we can limit this document to a confidential document.

PN36

THE SENIOR DEPUTY PRESIDENT: The Local Government industry would fall apart if there was confidentiality such that one council might do something different to another.

PN37

MS JAMES: The original intent, of course, was not to cause a scenario of pattern bargaining.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you. I can indicate to the parties I am satisfied the agreement was reached through a process consistent with the Act. Employees were able to make an informed choice as to their support for the agreement. I can further indicate the agreement contains the necessary dispute resolution provision in respect of which I note the parties have agreed their shared intention is that the reference to the "Industrial Commission" should be read as a reference to the Australian Industrial Relations Commission.

PN39

The agreement is of a duration envisaged by the Act and does not contain provisions that are contrary to the Act. Given that I propose to note that typographical errors in construction of the agreement require minor amendment, these amendments will apply to clause 3 and 14 of the agreement, such that I insert in those clauses the words "eligible to be". Clause 3 of the agreement will then read:

PN40

This agreement shall apply to the Flinders Ranges Council, the employer, and the Australian Workers' Union - Greater South Australian Branch, the union, and all employees of the Flinders Ranges Council who are eligible to be members of the Australian Workers' Union - Greater South Australian Branch.

PN41

Clause 14 of the agreement will read, in terms of the first paragraph:

PN42

The employer shall pay an across the board increase of 5 per cent effective from 24 February 2002 to all employees who are eligible to be members of the Australian Workers' Union - Greater South Australian Branch upon the notification of this agreement by the Australian Industrial Relations Commission.

PN43

I consider that this change reflects the intention of the parties and corrects what would otherwise be an obvious error in the agreement. I do not consider the change reflects a change which is in any way inconsistent with the document on which the employees voted and have sought certification of.

PN44

The certificate will be prepared. It will be dated as of today and be forwarded to the parties over the next few days. It remains for me to congratulate the parties on reaching this agreement to suggest the next agreement might perhaps remedy some of the provisions which could get the parties into difficulties in terms of this particular document and to express my wish the agreement operates to benefit both the employer and the employees. I adjourn the matter on that basis.

ADJOURNED INDEFINITELY [11.55am]