AG2002/3876, Transcript of Proceedings [2002] AIRCTrans 3910 (2 October 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2002/3876

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Mount Alexander Shire Council and Others
for certification of the Mount Alexander S
hire Council Enterprise Agreement No. 3, 2002

MELBOURNE

10.42 AM, WEDNESDAY, 18 SEPTEMBER 2002

PN1

MR S. WILSON: I am from VECCI appearing for Mount Alexander and appearing with me is MR I. GILBERT, the CEO from the shire.

PN2

MR R. SAUNDERS: I appear for the Australian Services Union.

PN3

MS K. FLAVELL: I appear for the APESMA.

PN4

MR B. MEGENNIS: I appear for the ANF.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Wilson.

PN6

MS WILSON: Yes, thank you, your Honour. Again, your Honour, this is an enterprise agreement to cover the whole of the staff of the Mount Alexander Shire and, again, we would rely on the statutory declaration of Mr Gilbert, but as is perhaps not typical, but in a number of these enterprise agreements there are some issues identified again at 7.3 in the statutory declaration as being reductions when compared to the award provisions.

PN7

Your Honour, again, I don't propose to take you through all those but simply to say that in each of the four areas - I think it is four - sorry, five areas identified, in each case an individual under the agreement is in most cases significantly better off and in one case just marginally better off, but then they would be under the award. If, again, I can take you to where it talks about the home and community care people at appendix - where in the stat dec it says appendix D part II.

PN8

For example, under the agreement an individual would be 515 - somebody working, for example, a specific roster over the course of a year would - a typical roster and an actual roster, would be between $819.80 and $515.60 a week better off than they would be were they receiving the award provisions, your Honour. Similarly, for people who receive call outs the difference is fairly minimal but it is still about $10 overall better off than they would be under the award provisions. That is the one that is talking about appendix C part IV call outs.

PN9

So, your Honour, we would submit that in all instances there the people covered by this agreement are in some cases marginally better off but the vast majority of cases significantly better off when compared with the award. And under those circumstances, your Honour, we would ask that the agreement be so certified, unless you have some questions of me.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, I notice in the statutory declarations that the answers to the questions to indicate what steps were taken to give employees sufficient notice and explanation and so on, are very cryptic answers. Can you expand on that a little, Mr Wilson, so that I can be satisfied that the employees concerned did have a proper opportunity to consider the proposed agreement and to make an informed decision as to whether or not to approve its terms?

PN11

MS WILSON: Yes, I can do that, your Honour. That is question 6, is it?

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MS WILSON: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: 6.1, 6.7.

PN15

MS WILSON: Yes.

PN16

THE SENIOR DEPUTY PRESIDENT: 6.8. Is it just that the answers are very, very brief.

PN17

MS WILSON: Yes, I note it just - - -

PN18

THE SENIOR DEPUTY PRESIDENT: They are shorthand.

PN19

MS WILSON: - - - says yes and that one - the steps taken. Access to the proposed agreement was provided to all employees.

PN20

THE SENIOR DEPUTY PRESIDENT: Well, what sort of access?

PN21

MS WILSON: Yes. Well, it was hard copies were made available. It was posted on the internal email. There was meetings sanctioned by management and, indeed, the unions, to discuss the contents of the agreement. Mr Gilbert - I am not sure if he was personally involved with them but certainly his staff were certainly involved in the explanation of the terms of the agreement. I don't have the exact dates, your Honour, but I am sure if you needed them we could chase them down.

PN22

THE SENIOR DEPUTY PRESIDENT: No, given the explanation that you have provided, and I note that three representatives of the unions are present - if the explanation wasn't adequate I suspect they might have had something to say about it, or might say something about it - they may further expand it. There is one other matter that I raise with you, Mr Wilson. It is in the agreement itself in the dispute resolution clause, clause 13.1.2:

PN23

Enables an employee to invite a union official to become involved in discussions aimed at resolving any dispute.

PN24

I take it that that would not restrict an employee from inviting a person other than a union official if the employee is not a member of a union?

PN25

MS WILSON: That would certainly be the intent of the council, your Honour, that an individual could invite whoever they wanted to be representing them.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. And I will ask each of the union representatives to provide the same confirmation to me.

PN27

MS WILSON: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Wilson.

PN29

MS WILSON: Thank you, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Mr Saunders.

PN31

MR SAUNDERS: Yes, your Honour. Again, the Australian Services Union supports the certification of the agreement and certainly I could confirm that that would be my interpretation of 13.1.2, that non-union people could invite others to assist them in this matter if there was dispute.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Saunders. Ms Flavell.

PN33

MS FLAVELL: Thank you, your Honour. APESMA is in support of the submissions of the employer and the Australian Services Union and believes that this enterprise agreement, and also the statutory declarations, are in accordance with the Act and if the Commission pleases APESMA would like certification from today's date.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, and do you confirm that 13.1.2 does not exclude a non-union member from inviting a non-union representative to the meeting?

PN35

MS FLAVELL: That is my understanding of it, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Megennis.

PN37

MR MEGENNIS: Yes, your Honour, we would request that the Commission certify this agreement in accordance with section 170LJ of the Act. A valid majority of employees has considered the document as the proposed agreement and have accepted those terms and conditions and in accordance with those provisions the secretary of the ANF has provided a statutory declaration seeking certification of the agreement.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, and what do you have to say about 13.1.2, Mr Megennis?

PN39

MR MEGENNIS: We are satisfied that 13.1.2 entitles an employee to invite a non-union member into the negotiations.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Megennis. In that case I am satisfied that the statutory requirements have been met. More particularly the agreement is about matters pertaining to the relationship between an employer in Victoria carrying on a single business and its employees. I am satisfied that each of the unions has at least one member employed and is entitled to represent that member's interests. The agreement passes the no disadvantage test. It was made in accordance with section 170LJ and a valid majority genuinely approved it.

PN41

The explanation of its terms was appropriate. It provides dispute settling procedures and it specifies 30 months from the date of certification. As the nominal expiry date that is not more than three years after the date on which it comes into operation. Having heard the explanation or received the assurances of the parties in relation to the operation of clause 13.1.2 I am satisfied that there are no reasons in section 170LU as to why I should refuse to certify it. Accordingly, it will be certified to operate on and from today's date.

PN42

The appropriate instrument will issue as soon as practicable. Thank you.

ADJOURNED INDEFINITELY [10.45am]