AG2002/3873, Transcript of Proceedings [2002] AIRCTrans 3907 (2 October 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2002/3873

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Uniting Church in Australia Property Trust
(Victoria) for certification of the Uniting
Care Community Options Enterprise Agreement 2002

MELBOURNE

11.25 AM, WEDNESDAY, 18 SEPTEMBER 2002

PN1

MR T. PALIOPORTAS: Your Honour, I am the Business Manager, Uniting Care Community Options.

PN2

MS R. SCHULTZ: I am the CEO, Uniting Care Community Options.

PN3

MR PALIOPORTAS: We have got representatives from the staff present here; we have got four representatives and they can introduce themselves, your Honour.

PN4

MS L. O'CONNOR: I am a Case Manager with Uniting Care Community Options.

PN5

MS T. SPRATT: I am a Case Manager from the Oakleigh site.

PN6

MS M. HADDON: I am a Case Manager from Box Hill office.

PN7

MR. MANSER: I am from the Box Hill office, and I am in administration.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, this is an application to certify an agreement under section 170LK of the Act. Who wants to speak to it?

PN9

MR PALIOPORTAS: Your Honour, we made an application for the certification, as you are aware, of the Enterprise Agreement 2002. We had a hearing in July - sorry - June 7 under Commissioner Gay and there were a couple of deficiencies within the actual agreement primarily with the fact that there was a mention of the actual award that related to the enterprise bargaining agreement, and also under section 170LK(2) notice of intention to make the agreement, after discussing the issue with Commissioner Gay, we have gone back and followed due process. I have corresponding documentation here that outlines the process that was undertaken, conforming with section 170LK and the 14-day period had been provided to employees. Thank you, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: When was the hearing in front of Commissioner Gay?

PN11

MR PALIOPORTAS: It was on 7 June 2002.

PN12

THE SENIOR DEPUTY PRESIDENT: I see, and you have filed documentation since then?

PN13

MR PALIOPORTAS: Yes, we have, that is correct.

PN14

THE SENIOR DEPUTY PRESIDENT: Now, there is a - do you want to rely on some documentation that you just referred to?

PN15

MR PALIOPORTAS: I have got a file here; with your permission, I will pass it on. It is just there are letters and signatures with dates of notifying staff of the intention of the organisation to forward an application to the Commission for the certification of the agreement. There was also a - after the intention was submitted - 14-day period for the staff to think about it and respond. Following from that there was a meeting at each site where it was put to the vote and there was a head count and there are minutes there of those particular meetings that occurred.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. Just give me a moment to look through look it. Yes, I will hand that file back to you. Mr Palioportas, in answer to question 5.9, I would just like some explanation of that. The question was:

PN17

If an organisation was requested to represent a person, did the employer give the organisation a reasonable opportunity to meet -

PN18

and so on. And the answer is:

PN19

Yes. A request was made to the organisation and the union declined any involvement.

PN20

Can you just explain all of that to me please?

PN21

MR PALIOPORTAS: Maybe the staff could even comment on this as well, your Honour. The problem was that this is based underneath the SACS Award, the Social and Community Services Award.

PN22

THE SENIOR DEPUTY PRESIDENT: Is that the Social and Community Services - Victoria - Award 2000?

PN23

MR PALIOPORTAS: Correct. And the union at the time was the HSUA, and it wasn't under the particular award, so we had to - all the staff and the employers had to go ahead and progress after they declined at the last moment basically. It was literally almost like a week before we were going to submit for certification and so they - - -

PN24

THE SENIOR DEPUTY PRESIDENT: What, the union declined to be involved, did it?

PN25

MR PALIOPORTAS: That is correct. So we had to progress to get hopefully a certification to make all the necessary adjustments and back-payments to the staff.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Is that because there are no members of the union, is that why it declined? It just seems odd.

PN27

MR PALIOPORTAS: Yes. It was probably lack of numbers as well.

PN28

MS SCHULTZ: Two, I think, yes.

PN29

THE SENIOR DEPUTY PRESIDENT: Very well. Okay, just so I understand that. And there was a bargaining period, was there, that this agreement ended?

PN30

MR PALIOPORTAS: Yes, from memory, there was a bargaining period, yes. It was probably right at the very beginning when negotiations had commenced with the employer and the employees.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Now, you say that it passes the no disadvantage test. Do you know what I am talking about there?

PN32

MR PALIOPORTAS: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. That is when you compare it with that award. Now, I am going to need a little bit of help here because if you look at the agreement and in particular in relation to welfare workers by way of example; have you got that there?

PN34

MR PALIOPORTAS: What page are we on, your Honour?

PN35

THE SENIOR DEPUTY PRESIDENT: It is in the appendix, I think.

PN36

MR PALIOPORTAS: The salary structures?

PN37

THE SENIOR DEPUTY PRESIDENT: Salary structure, clause 7.

PN38

MR PALIOPORTAS: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: And what I have done is just try to compare some of the provisions with the SACS Award and I am a little confused. If you go to your classification structure there are Case Managers. I don't think there were Case Managers classifications in the SACS Award, but then if you go to Welfare Workers, they are dealt with in the SACS Award at clause 13.4 as well as in an appendix. And in the award proper, clause 13.4.1, the rate for an unqualified Welfare Worker is $457.08 for year 1 going through to $558.03 for grade 7, although I think that might be as at the - is it July next year.

PN40

So if we - what I am looking at is - it is rather odd, that award, it talks about those rates being phased-in in accordance with a schedule which I have got and that schedule talks of a - has columns that would indicate that there are certain pay rises to occur from 9 July 2002, 31 December 2002 and 9 July 2003. So as of this date, being 18 September 2002, if I look in the appropriate column for an unqualified Welfare Worker first year, the rate appears to be $445.03 and a seventh year $542.90. Those rates are higher than the rates that appear in your agreement. Now, can somebody explain that to me?

PN41

MS SCHULTZ: I can explain it to you, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, your name again is?

PN43

MS SCHULTZ: At the time when the - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Your name, sorry?

PN45

MS SCHULTZ: Sorry, Ronda Schultz, CEO. At the time when the agreement was drafted, those rates were actually taken from the award rates of the schedule at the time in the SACS Award. This was actually a new classification for our organisation that was incorporated into this agreement, and I suspect what has occurred is that they haven't been updated because of the delay in processing the agreement that they haven't been updated with the new schedules that have come through. So the intention is certainly to simply reflect that award in our agreement.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, it doesn't say that and I can't see those rates in the award at all, even in the rate that applied at the date of the decision which was 6 July 2000. Does it say anywhere in your agreement that you were going to reflect the rates in the award?

PN47

MR PALIOPORTAS: There is a section in there that relates to the actual award.

PN48

THE SENIOR DEPUTY PRESIDENT: Now, I am not trying to be difficult, but I do have to be satisfied as to - - -

PN49

MS SCHULTZ: Sure. We did seek legal advice on that one in terms of using an award classification within our enterprise agreement and at the time that was intended to reflect just exactly what was in the SACS Award within our agreement and obviously that has become out of date.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. The trouble is that clause 4 of your agreement says:

PN51

This agreement shall be read in conjunction with the provisions of the Social and Community Services Award. In the event of any inconsistency between the award and this agreement, the agreement shall prevail to the extent of the inconsistency.

PN52

So you have got rates of pay that are lower than those that appear in the award.

PN53

MS SCHULTZ: Which was not the intention.

PN54

THE SENIOR DEPUTY PRESIDENT: Which was not the intention, but the agreement specifically says that the rates in the agreement override the rates in the award.

PN55

MS SCHULTZ: So we need to make an amendment to that.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. It might be preferable if we just go off the record for a few minutes. It is easier for us to have an exchange of views that way.

OFF THE RECORD

PN57

THE SENIOR DEPUTY PRESIDENT: I have had a discussion off the record with the parties and it appears that when the agreement was negotiated and approved, the Social and Community Services - Victoria - Award 2000 had not yet been made. That award is an award that was made pursuant to item 51 of Part II of schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996, and it replaced the Social and Community Services (Interim) Award 1995, hence the difficulty in ascertaining whether or not the no disadvantage test has been met.

PN58

It certainly has not been met in relation to some of the wage rates in the agreement. In conference with the representatives of the employer and the employees, it was indicated to me that the employer is prepared to provide the Commission with an undertaking, and I will ask for confirmation of that in a moment, an undertaking to the effect that where a term of the award is more favourable than a term of the agreement, the employer will apply the term of the award, and indeed that that was its intention in relation to the award that has been superseded by the 2000 award.

PN59

In those circumstances, if I receive that undertaking, particularly having regard to the standing of the employer as a legal entity of the Uniting Church in Australia, I am prepared to certify the agreement.

PN60

Ms Schultz, it is probably appropriate if you, as the Chief Executive Officer, rather than Mr Palioportas, provide that undertaking. Are you prepared, on behalf of the Uniting Church in Australia Property Trust (Victoria) to undertake that where a term in the agreement is inferior to a term in the Social and Community Services - Victoria - Award 2000, that the employer will apply the provisions of the award?

PN61

MS SCHULTZ: Yes, I am.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Schultz. Yes, well, in those circumstances, I am satisfied that despite the agreement not passing the no disadvantage test, that certifying the agreement is not contrary to the public interest and according to section 170LT(3), the agreement is taken to pass the no disadvantage test.

PN63

I am satisfied that all of the other statutory requirements of the Act have been met. I have read the statutory declarations in support. I notice that there are representatives of the employees present in the Commission today, all of whom still seek that the agreement be certified. I am satisfied that the agreement is about matters pertaining to the relationship between an employer in Victoria that is carrying on a single business and employees employed by that employer in the single business and whose employment is subject to the agreement.

PN64

As I have indicated, I am satisfied under section 170LT(3) that the agreement passes the no disadvantage test, that it was made in accordance with section 170LK of the Act and a valid majority of persons employed at the time genuinely approved it. I am satisfied that the explanation of its terms was appropriate in the circumstances, that it includes procedures for preventing and settling disputes, that it specifies 30 June 2003 as its nominal expiry date and that is not more than two years from the date of certification, which is today's date - not three years more.

PN65

I note also that the agreement will take effect from the 1st day of July 2001 at which time the wage rates in the agreement I am told will be - are higher than they were in the award at that time. I am satisfied that there are no reasons set out in section 170LU as to why I should refuse to certify the agreement and accordingly I will certify it to operate from today's date. Thank you for your attendance.

ADJOURNED INDEFINITELY [11.56am]