AG2002/2836, Transcript of Proceedings [2002] AIRCTrans 3844 (27 September 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/2836

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LS of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Another re
The Berri Barmera Council (AWU) Enterprise
Bargaining Agreement No 6 2002 agreement
about industrial dispute (Division 3)

ADELAIDE

9.32 AM, FRIDAY, 13 SEPTEMBER 2002

PN1

MR E. GRUE: I appear on behalf of the Australian Workers' Union.

PN2

MR G.J. HILL: I appear for the Berri Barmera Council.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Grue.

PN4

MR GRUE: Senior Deputy President, the Australian Workers' Union have made application to seek the certification of the Berri Barmera Council Enterprise Agreement No 6 of 2002. A statutory declaration has been provided to the Commission. The statutory declaration made by Mr John O'Neill who is the branch organiser for the Riverland area. It is our belief the agreement satisfies the statutory requirements and on that basis we would seek certification of the agreement. If you have any questions, Senior Deputy President.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Grue, I should indicate to you I have got a number of questions. I would propose to raise those questions after I have heard from Mr Hill but there is one preliminary issue that I must raise with you at the outset, that is the application was lodged on 19 August. It appears from the statutory declarations, the vote on the agreement was held on 17 July and in that respect the application is out of time. Do you seek some form of absolution in that regard?

PN6

MR GRUE: Yes, Senior Deputy President, we would seek an extension of time pursuant to section 111(1)(r) of the Act. I have had discussions with the branch organiser in relation to the difficulty in making the application within the time. I understand there has been a number of errors made that were of an administrative nature. The organiser signing the statutory declaration in front of appropriate Justice of the Peace, that was the only reason for the delay in the time. I had asked him if there has been any change to the make up of the employees employed and he assures me that as far as he is aware, there have been no changes to the number or members of the group that voted for the agreement.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Hill.

PN8

MR HILL: May it please the Commission, the Berri Barmera Council would support the submissions of Mr Grue and also seek certification of the agreement pursuant to section 170LS of the Act. The Council would submit the application meets all the requirements of 170LT and we would also support the application seeking an extension of the time pursuant to section 111(1(r) of the Act, Senior Deputy President. There is, perhaps, a couple of issues which I would like to deal with in terms of this application and - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Before you do, can I put to rest this question of the extension of time. Can you confirm to me, Mr Hill, there are no significant changes in terms of employees to be covered by the agreement in the intervening 12 days reflecting the extent to which the application was belatedly lodged?

PN10

MR HILL: Your Honour, I can't confirm that is the case because I have not made those inquiries with the Council. I would have to say if the AWU has made those inquiries through the local organiser, then that would, on face value, be the case. I would be most surprised if there was any movement in the establishment of the outside workforce because it is not a very large workforce and turnover would be minimal but perhaps I could add, Senior Deputy President, that I would be happy to make that inquiry with the Council and confirm that with you but it would have to be subsequent to these proceedings.

PN11

THE SENIOR DEPUTY PRESIDENT: You see, Mr Hill, am I given any information, because if I am I could not easily see it, that went to the nature of the majority vote?

PN12

MR HILL: I am sorry, Senior Deputy President?

PN13

THE SENIOR DEPUTY PRESIDENT: What I am interested in is reconciling the information you have given me, together with the information given to me by Mr Grue and the information contained in the statutory declarations. The potential for a delay, to assume some significance in this particular type of matter, I think probably only arises in that if there happened to be changes in the make up of that workforce which changes could have impacted upon the extent of the majority of any vote to adopt or not to adopt the agreement. Hence I am wondering whether you are in a position to provide me with information relating to the make up of the vote because if you can't, then I can foreshadow to you that I will require confirmation from the employer that there were no significant changes in the make up of those employee workforce numbers.

PN14

MR HILL: Look, I am not able to give an indication of that, Senior Deputy President. I don't know whether Mr Grue can assist in that area.

PN15

MR GRUE: I have not got the numbers in front of me but that is one of the things I have discussed with the organiser. I can't recall the numbers off hand but I do know a significant majority voted in favour.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Grue.

PN17

MR HILL: I don't think I can add anything further to that. Your Honour, one of the issues which I have - let me say, initially, the agreement is simply a roll over agreement. The conditions, which are contained under the agreement before you today, are in essence the conditions from the previous agreement. I have been through the previous agreement and it is truly a roll over in all respects, as far as I can ascertain. There is obviously a question to be dealt with in terms of clause 7(a) and (b), disputes settlement procedure, Senior Deputy President, and comes back to this question about the reference of the dispute finally to the Industrial Relations Commission and there is also a reference there to the appropriate Industrial Relations Commission.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, but there is a reference in 17.1 to the Australian Industrial Relations Commission.

PN19

MR HILL: To the Australian Commission, yes, there is. I have had discussions with Mr Grue on this particular point in light of what has occurred in proceedings previously, your Honour, and it is Council's submission, and I think it will be supported by the AWU, that it should be consistent in terms of Part 1 and Part 2, that is "with reference to the Commission" means referenced to the Australian Industrial Relations Commission.

PN20

So that you have not got one type of dispute heading off to the Federal Commission and another type of dispute being at the discretion of the parties and perhaps through the State Commission. So I draw that to your attention, your Honour, and indicate that the parties have had discussions and have agreed that the meaning under 2, will be consistent with the approach adopted under 1, that is reference to the Australian Industrial Relations Commission.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. That is an agreed position?

PN22

MR HILL: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN24

MR HILL: The other point, your Honour, is the wages schedule. I have requested that the Council prepare a schedule, which I will hand up. It shows the current wage rates and the effect of the increases during the term of the - that is prescribed under the agreement.

PN25

THE SENIOR DEPUTY PRESIDENT: That is an agreed schedule you are providing to me?

PN26

MR HILL: Unfortunately, I only got it late yesterday and, again, I would say my friend has not had access to it but I would propose that it be put on the file and subject to any checking and any comments he may have to make on that.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Hill, perhaps before we do hand it to me, I might ask you provide it to the AWU and give them an opportunity to look at it and that you provide them to me, say within a week, a copy of that schedule, together with advice that it has been agreed between the parties.

PN28

MR HILL: Yes, I will undertake to do that, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: I am little nervous about simply taking on board a document if the AWU have not had an opportunity to pursue it.

PN30

MR HILL: That is fine.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN32

MR HILL: The nature of the increases prescribed under the agreement are shown under clause 15, 3.5 per cent increase on existing rates from 1 July 2002 and a similar increase from 1 July 2003. On my calculation, your Honour, that puts the rates of pay at Berri Barmera upwards of 20 per cent above the existing award rates, including the last $18 a week safety net. Unless there is anything further in terms of the stat dec or the agreement, your Honour, I would simply request that the Commission certify the agreement, as of today's date and you will note in terms of the operation agreed, the terms of the agreement and the wage increases, the proposed date is 31 July 2002. May it please the Commission.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hill. Mr Hill, given the AWU are the applicant in the matter, I can indicate to you I have got a number of questions. They are by and large questions of clarification in terms of the intent of the parties in relation to the agreement. I would propose to address my questions to Mr Grue, but if you want to jump to your feet on any of those issues to clarify issues, please free to do so.

PN34

MR HILL: Thank you, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Mr Grue, once again I stress my questions are not designed to trip up the process of certification but rather to clarify issues now rather than express a regret at a later time that I didn't do so. Can I take you, firstly, to clause 7. On page 3 of the document, to what I can best describe as the third last dot point. This reads:

PN36

The employees agree to promote the corporate image by the compliance to wear the Council's uniform.

PN37

Can I just clarify the intent of the parties in this regard, is employees will wear the corporation uniform? I am asking that question principally because I have had experience of disputes over uniforms in the local government industry. As I said, I am not trying to trip you up. If you need to seek further instructions on any of the questions I am raising with you, then I am very happy to allow that opportunity and to accept later advice from you, provided that it is an agreed position between the union and the employer.

PN38

MR GRUE: I think on the particular issue of uniforms and clothing generally, it is better if I seek instructions directly, I think, and not make any comment on that at this time.

PN39

THE SENIOR DEPUTY PRESIDENT: Very well. Can I take you to the next dot point and ask whether you are in a position to advise me of what that means?

PN40

MR GRUE: Again, I don't have any - - -

PN41

THE SENIOR DEPUTY PRESIDENT: I have read it on a number of occasions and I am afraid I am totally and utterly at a loss as to what the intention is in that regard.

PN42

MR GRUE: I don't have any personal knowledge of what training and skills improvement program the Berri Barmera Council has. Again I would imagine I would need to seek specific instructions. It would appear to me, on the face of it, its meaning is the employees will continue with the type of program that is in place at the moment but again I don't have specific knowledge of that.

PN43

MR HILL: Your Honour, there is a training section under clause 11: Employment issues subclause (b). If I could refer you to that section, it states:

PN44

The parties are committed to continue to investigate the training requirements for each individual employed at the Council -

PN45

and then -

PN46

The Council will develop appropriate training based on Council's needs and requirements. The object of such training shall be to ensure the continuation of a multi skilled flexible workforce -

PN47

the workforce of the Berri Barmera Council. Now, I think that probably links in reasonably well with the first part of that objective, that is to continue with the training and skills improvement program within the Council and to allow the employees to increase their individual levels of expertise, improve the excellence of Council through the provision of defined career paths and opportunities.

PN48

Now, I am not quite sure about that final comment, although I suppose, one could take it if employees are multi skilled, on an individual basis, to their fullest extent, then that, as a matter of course, would assist in their career paths and opportunities. I take your point. That is about as good as I can put on that, I think.

PN49

THE SENIOR DEPUTY PRESIDENT: I'm inclined toward asking the parties to see whether they could put their heads together on that one too just to clarify it, not to change the words in the agreement because you simply don't have that option.

PN50

MR HILL: No.

PN51

THE SENIOR DEPUTY PRESIDENT: But to clarify the intent of the provisions in clauses 7 and 11. Mr Grue, can I take you then to clause 8 and probably need to note first of all there's a somewhat unfortunate typographical error in that first sentence. I'm taking it the sentence refers to consultative structures rather than strictures, but leaving that aside it becomes a potentially problematical issue in that if I look at the constitution of the single bargaining unit, that single bargaining unit consists of employer representatives and employee representatives elected by AWU members. Now, the single bargaining unit assumes some significance in this agreement in that it can reach decisions by consensus, it can hear and acknowledge reports and ideas generated by employee and employer representatives and it provides a forum for information flow between the employer and the employees.

PN52

The question that I have is how it is that employee representatives who may not be members of the union get to be either represented on or potentially impacted upon by decisions of that single bargaining unit. Once again, I make the blanket comment, if you need to obtain further advice or talk with the employer in that regard I'm very happy to provide that opportunity.

PN53

MR GRUE: I think with a number of local government agreements there is reference to such single bargaining units and there seems to be a reference only to AWU members. I would say that the union does acknowledge that employees who may not be members of the union have the right to elect employee representatives and it is unfortunate that when this document was drafted that was not picked upon and altered to reflect the reality and the acknowledged situation.

PN54

THE SENIOR DEPUTY PRESIDENT: Can I ask then that you do discuss this issue with the employer or the AWU discuss it with the employer and can I indicate to you that what I will need to address the concern that I have in that respect is an undertaking from the AWU along the lines that you have foreshadowed to me. Can I take you to clause 11F and simply ask you to confirm to me the intent of the first paragraph in 11F.

PN55

MR GRUE: Again I don't have specific instructions but it would appear to me that an employee cannot be required to work outside the standard hours unless an employee has agreed to do so.

PN56

THE SENIOR DEPUTY PRESIDENT: Very well. Is that another one that you would obtain further instructions to consult on?

PN57

MR GRUE: If need be but I'm quite willing to, if it is a question that requires further investigation.

PN58

THE SENIOR DEPUTY PRESIDENT: I just really want to be certain that the parties share a common understanding of how they are going to interpret that provision. It is possible, I suggest, that the provision could allow the various prescriptions relating to working hours to be completely revised on the basis of seasonal and/or organisational needs. I'm just anxious to ensure that the parties have a common understanding of how that clause would operate.

PN59

MR HILL: Perhaps I might be able to assist, your Honour. I would agree with what Mr Grue has said there, that it provides for the working of the flexible hours outside the standard hours by agreement, but I think it has to be read in the context of the flexibilities, individual flexibilities, which are prescribed further in that clause. If I can take you - it is not numbered, but if we read it down, the agreement allows for up to 90 hours to be worked over a 2-week cycle on the basis that time worked in excess of the 76 hours can be accumulated, time off in lieu or payment at ordinary time. Then all time outside of 90 hours in a 2-week cycle is paid at the appropriate overtime rate.

PN60

Then further there's a limitation on the daily hours, ordinary hours per day of 10 hours per day before overtime cuts in. So I think that the deployment on flexible hours referred to in paragraph 1 is subject to all those conditions and it would appear clear that it really needs to be by agreement between the employer and the employee to operate outside of the standard hours within those parameters. Now, I would have to say that that is not a totally unusual sort of set of circumstances for local government, that the working of those additional flexible hours on a daily basis should be by mutual agreement, but I would have to say that I'm not instructed on that, your Honour, and that is perhaps a point which could be taken back for clarification.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, I think I would prefer to have some of these issues clarified now - - -

PN62

MR HILL: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: - - - as I have indicated, rather than regretting that we didn't clarify them now while we have got an environment of harmony and tranquillity.

PN64

MR HILL: Quite so, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: Mr Grue, I have taken it that clause 11H effectively refers back then to the allowances contained in the award relative to disability, first-aid, toxic substances and expense-related allowances. Is that an accurate sort of understanding?

PN66

MR GRUE: Yes, sir, I believe so.

PN67

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 11J and just seek clarification of the parties' understanding of how that clause operates, in particular the first paragraph.

PN68

MR GRUE: Again I don't have specific instructions but it would seem to me that when an individual is called out to work on a day other than those particular days excluded, that the minimum they would be paid when they are called out is an hour at ordinary time if it is within that 90 hours flexible hours that is mentioned earlier in the agreement.

PN69

THE SENIOR DEPUTY PRESIDENT: Then I would presume it is overtime, is that an accurate understanding?

PN70

MR GRUE: It would appear that it wouldn't be overtime if it was within that 90 hours and was agreed.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, but if it is outside of that 90 hours it is overtime.

PN72

MR GRUE: Yes, sir.

PN73

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Hill, you have no objection to that interpretation?

PN74

MR HILL: No, none at all, your Honour, that is how I read it.

PN75

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Grue, you will be relieved to know I am nearing the end of my questions but 11M, just a question of clarification there. The 2-week break over the Christmas period I take it is an arrangement that the 2 weeks is 2 of the 4 weeks for annual leave per year with the additional 2 weeks being arranged between the relevant employee and the employer.

PN76

MR GRUE: I would assume so but again I don't have specific instructions. That is perhaps another issue I would like to seek instructions on before I confirm that.

PN77

THE SENIOR DEPUTY PRESIDENT: Finally can I take you to clause 19 and make two sets of observations. I don't see anything in this clause that would prohibit certification of the agreement but frankly I don't consider the clause to be at all enforceable. You see, I can't maintain the agreement as a confidential document and I must indicate to you that the agreement has force at law and will be used within a Tribunal if that is appropriate. I hope it wouldn't have to be used but it will be if required. Do you have a problem with anything that I'm saying in that regard?

PN78

MR GRUE: I would certainly agree wholeheartedly with you, Senior Deputy president, on that point.

PN79

MR HILL: I've got no problems at all with that, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Thank you for that. Now, Mr Grue, what I propose is that I ask you to confer with the employer on those various issues that I have raised and to advise me of the - what I would hope and expect to be the shared understanding of the parties as to how those various clauses are intended to operate. I need to stress once again I'm not asking for changes to be made to the agreement but rather to an expression of intent in terms of how it would apply.

PN81

MR GRUE: Yes, sir.

PN82

MR HILL: Yes.

PN83

THE SENIOR DEPUTY PRESIDENT: Would it be possible to have advice back to me in that regard within a week or is that an unrealistic time frame?

PN84

MR GRUE: Given the issues raised I think a week is plenty of time.

PN85

MR HILL: Yes, a week is fine, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: Within that same time frame I am working on the assumption that the parties will be able to agree on the wages schedule.

PN87

MR GRUE: Yes, sir, correct.

PN88

THE SENIOR DEPUTY PRESIDENT: Very well. Look, on the basis of the information before me I would indicate to the parties that I am inclined toward granting the extension of time for the lodgment of the application pursuant to section 111 1R. My final position on this question will be influenced by advice to be received from the parties that confirms that there were no changes within that period of time that could affect the integrity of the ballot on the part of the employees to adopt the agreement.

PN89

On the basis that I am then satisfied that that extension of time for lodgment of the agreement should be granted, I can indicate to the parties that if I received advice within the next week that confirms that the shared intention of the parties with respect to the various issues that I have raised I am of the view that the agreement should be certified. I am satisfied that the process whereby the employees were given the opportunity to vote in favour of the agreement was consistent with the requirements of the Act.

PN90

I am satisfied that the agreement itself meets the requirements of the no disadvantage test, that the agreement does not contain provisions which are contrary to the intent of the Act subject to the need for the AWU to give me an undertaking relevant to the operation of clause 8. I am satisfied that the agreement is of a duration envisaged by the Act and that it contains, subject to clarification, the necessary dispute resolution provisions. If the parties provide that promised material to me within the next week, I can indicate that I will certify the agreement from the date upon which I receive that shared consistent advice.

PN91

The certificate will then be prepared and forwarded back to the parties shortly afterwards. In the event that the parties run into difficulty in terms of a shared intention, then I would await advice from either or both groups and will relist the matter and see if we can sort it out. Working form an optimistic perspective, I am confident that the parties will be able to meet the requirements I have specified and accordingly it is appropriate that I congratulate - or ask the parties to pass on to the relevant persons my congratulations on this agreement and I hope that it operates to benefit both groups. I adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [10.10am]