C2002/4183, Transcript of Proceedings [2002] AIRCTrans 3969 (7 October 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT218
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2002/4183

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

CITY OF STONNINGTON

Notification pursuant to section 99 of the Act
of a dispute re failure to adhere to award
concerning overtime

MELBOURNE

10.29 AM, TUESDAY, 10 SEPTEMBER 2002

PN1

MR N. HENDERSON: I appear for the Australian Services Union and with me is MS M. CANN.

PN2

MR S. WILSON: I am from VECCI and appear for the Stonnington City Council; with me I have MS F. THEWLIS and MR S. RELF from the council.

PN3

THE COMMISSIONER: Yes, thank you, Mr Wilson. Could I just apologise for the late start. I was delayed a bit by a previous matter.

PN4

MR HENDERSON: Thank you, Commission. This is a dispute about the way in which library staff at the City of Stonnington have been paid for work performed on Saturdays. Although that is a simple proposition it is not necessarily a simple matter to get to the cause of the problem. What I propose to do is to provide a brief history of the regime of certified agreements in operation at the city and then, subject to what Mr Wilson has to say, seek to adjourn into conference and see if we can resolve the dispute.

PN5

Basically, the City of Stonnington, as I understand it, has not been paying library staff at a penalty rate for work which they perform on Saturday. It has been treating Saturday as an ordinary day for the purposes of - for all purposes. This matter has been the subject of some discussion between the parties but I think the two letters which best summarise what has gone on is a letter from the union to the council dated 1 May 2002, which I will hand up a copy of, and a letter in reply to that from the council to the union dated 22 May.

EXHIBIT #H1 LETTER FROM UNION TO THE COUNCIL DATED 01/05/2002

EXHIBIT #H2 LETTER FROM COUNCIL TO UNION DATED 22/05/2002

PN6

MR HENDERSON: Yes, thank you, Commissioner. In the letter of 1 May we simply note that it relates to library services and payment for work on Saturday, payment of overtime it is described there. We note that it has something to do with the operation of an agreement known as the Library Services Local Area Work Agreement. I won't read the whole of the letter but, basically, I think that sets out the issue that the library or the council has acted in accordance with or purported to act in accordance with that agreement and at the end it says that they oughtn't have done.

PN7

Then by letter of 22 May in H2 the council replies noting that they had investigated it and contest - are contending that staff are taking time in lieu for the overtime work and making some observations about other benefits which it has claimed that they had received. The situation, as far as the certified agreement is applying at Stonnington, is interesting, Commissioner. An agreement - - -

PN8

THE COMMISSIONER: I am sure it is not the only place where it is interesting and I am sure you have got to be a particular person to be interested by it all.

PN9

MR HENDERSON: And it is probably a sad commentary that. The first agreement is entitled Municipal Employees City of Stonnington Enterprise Bargaining Agreement 1994 which is in print N5322. It was certified by Commissioner Nolan on 13 September 1996, but its period of operation was for a period of two years commencing on 17 October 1994. It was certified under the provisions of the Industrial Relations Act 1988 which were in operation at that point. In its - - -

PN10

THE COMMISSIONER: Well, it only effectively had one month's operation.

PN11

MR HENDERSON: Effectively, yes, Commissioner. Under the parties bound provision it appears to me, and I don't seek to bind anyone to this but certainly in my reading of it, it applies to the whole council without exception. It contains two provisions which appear to be relevant to the matter today. In clause 26, which is entitled "The City of Stonnington Pay Structure" it sets out at 26 sub-paragraph (d):

PN12

Overtime payments shall continue as per the current practice at the outdoor areas of council.

PN13

And then it has two sub-headings, one for employees and one for officers. Just to take the shorthand, one would assume that the officers' provision relates to the indoor staff including library staff, although there may be an argument about that, and provides, firstly, that:

PN14

Officers who begin work prior to their normal starting time, including those who continue to work overtime on a daily basis as part of their normal day, will continue to be paid double time prior to the starting time and time and a half for the first two hours after normal knock off time.

PN15

And the second dot point provides that:

PN16

Double time will continue to be paid all day Saturday.

PN17

Then there are no other provisions. There are certainly no provisions that specifically relate to library, other than in (e):

PN18

The parties shall jointly monitor costs savings during the life of this enterprise agreement. The following shall be regarded as reserved matters which the parties to this agreement may raise at further discussion.

PN19

The first reserved matter is:

PN20

The ordinary hours of duty for all employees being 37 and a half per week except for library employees whose ordinary hours of duty are 35 per week.

PN21

And I don't think that really impacts on that matter. Then finally, in paragraph (d):

PN22

The parties acknowledge that pay structure conditions can be altered by agreement in the preparation of inhouse bids for the CCT process. These inhouse agreements will replace all former agreements.

PN23

Then, Commissioner - sorry, rather than then - prior to the certification of that agreement in September 1996 the parties negotiated an agreement entitled The Library and Information Service Workplace Agreement, and I will hand up a copy of this for the Commission.

EXHIBIT #H3 THE LIBRARY AND INFORMATION SERVICE WORKPLACE AGREEMENT

PN24

MR HENDERSON: Now, this agreement appears to have been negotiated between the council and the union in late 1995 through to early 1996. Correspondence provided by the employer, which we don't take issue with, suggests that there was an agreement in the form that we have just tendered to the Commission and, ultimately, that agreement was filed with the Commission on 23 December 1996 in matter C number 37379 of 1996.

PN25

We have been able to ascertain that the matter was, indeed, listed for certification in February 1997 - and I just lost the actual notice - but it was never actually certified. There is no record available to us to explain why that is the case. There is no transcript for that particular day, which is not unusual.

PN26

THE COMMISSIONER: Has anyone sought to order the transcript because you can back order the transcript?

PN27

MR HENDERSON: I don't think so, Commissioner.

PN28

THE COMMISSIONER: Can we - it might assist, mightn't it, if we - - -

PN29

MR HENDERSON: It may well do but perhaps we mightn't need to do it today, maybe - - -

PN30

THE COMMISSIONER: We will have to do it.

PN31

MR HENDERSON: The C number of 37379 of 1996. Well, the transcript may well clear up a number of matters. But it seems to me, Commissioner, that the more likely reason for the matter not having proceeded is the passage of the Workplace Relations Act. A review of the Workplace Relations and Other Legislation provisions suggests that this matter, being an application in December, 23 December 1996, would have had to come under the provisions of the Workplace Relations Act to be certified and it would have failed into difficulties because there was then no vote within the meaning of the Workplace Relations Act.

PN32

Certainly, my initial view was that it may not have been capable of being certified because of the existence of the 1994 agreement but that agreement would have expired by the time that this application was made. So it wouldn't have been an impediment. Subsequently, in September 1997 an agreement entitled Stonnington City Council Enterprise Bargaining Agreement No 2 1997 was certified on 24 September. That is in print P5328.

PN33

Its main impact on these proceedings is that in its - in clause 3, relation to award and other agreements, it says that:

PN34

It will be read and interpreted in conjunction with the Enterprise Agreement 1994 and in the event of any inconsistency this agreement will prevail.

PN35

Now, this agreement doesn't contain any provisions relating to overtime. So in our submission, in the normal course that overtime provision in the '94 agreement would have continued to operate. Subsequently, on 26 October 1999 in print S0336 the Stonnington City Council Enterprise No 3 was certified by Boltoun J and it contains a similar provision relating to prior agreement in clause 6 and contains no provisions relating to payment of overtime.

PN36

Consequently, it would seem that overtime provision would have continued to operate. Then finally, the City of Stonnington Enterprise Bargaining Agreement No 4 certified by Senior Deputy President Kaufman on 18 June 2002 in print PR919023. This agreement, in clause 6, entirely replaces or supersedes all previous agreements. So in the normal course, it would appear that that double time arrangement came to an end - but don't hold me to that - came to an end with the certification of that agreement.

PN37

Now, also, that agreement - and this is a matter of relevance although it is not clear what significance - purports to wholly supersede the provisions of an unregistered agreement known as the City of Stonnington Library and Information Service Certified Agreement 1996 which, it appears to me, is the one which we have handed up in exhibit H3.

PN38

So that is the background, Commissioner. The dispute simply is this, that employees have worked on those - have worked in the libraries on Saturday. They have not been paid in accordance with the award for that work and they have not been paid, it would seem, in accordance with the provisions of the 1996 certified agreement. There has been reliance by the council on, firstly, the existence of the unregistered agreement and, secondly, an offset argument, I suppose, that certain payments were made under that agreement.

PN39

The only other issue which I would throw into the mix at this point is that there is a contention by the union that the council has, at least on earlier occasions, purported that the agreement was certified to staff. I don't know where that takes us but - and that may well be an issue between the parties. But the union today simply seeks to try and resolve the argument with a recommendation. If the Commission pleases.

PN40

THE COMMISSIONER: Just one matter I think from that, Mr Henderson. There is a suggestion in exhibit H2 a vote was taken in regard to that agreement, in H3 in the second paragraph, which would suggest that perhaps - well, maybe a vote was taken after the hearing in February.

PN41

MR HENDERSON: I can't really comment on that, Commissioner. Certainly, at the time that the documents were filed with the Commission there was no requirement for a vote. But as, you know, as history - I think the history was that in those days people did vote, even though there was no specific requirement. Certainly, there is no reference to - - -

PN42

THE COMMISSIONER: Anyhow, that is just guess work, isn't it, really?

PN43

MR HENDERSON: There is no reference to a vote having taken place in the statutory declaration filed with the application.

PN44

THE COMMISSIONER: Yes.

PN45

MR HENDERSON: But that doesn't mean, of course, it didn't happen.

PN46

THE COMMISSIONER: Yes, thanks. Mr Wilson.

PN47

MR WILSON: Yes, thank you, Commissioner. Commissioner, there is a number of things to be said here, I think. I am not necessarily in a position to say what Mr Henderson has put to you in terms of the history of the certification of agreements with the City of Stonnington that that is wrong. We don't contend that it necessarily is. We certainly don't believe that the agreement in H3 was ever certified.

PN48

If I could just go to one of the last comments that he made. I don't believe that - well, my instructions are that the City of Stonnington certainly never purported to staff that it was certified. I guess what our area of concern is, Commissioner, I mean, we know that in the mid '90s there was a lot of issues going on with compulsory competitive tendering. We know, of course - and not just with the City of Stonnington, I am talking about the industry of local government - we know that there was a history of enterprise agreements and local area work agreements for good or bad.

PN49

As you pointed out initially, there are plenty of examples of unregistered, uncertified agreements that are floating around and - - -

PN50

THE COMMISSIONER: Well, there is even some that were certified that had no effect, like the City of Dandenong.

PN51

MR WILSON: Well, that is correct, too. So there is all sorts of variations on the theme, I guess is the point. Commissioner, what we say in this - - -

PN52

THE COMMISSIONER: And I make the point about the City of Dandenong - the fact that people went and voted and did all sorts of things didn't stop the court from overturning it.

PN53

MR WILSON: No, correct, that is exactly right. But Commissioner, I guess our concern with this one or this particular issue is that - and if I could just leave the technicalities out it at least for just the moment - well, the City of Stonnington believed that they had an agreement with the ASU. Now, there is correspondence dating back to 1995 between the City of Stonnington and the ASU where the ASU has pointed out comments that they have on a number of the clauses and in both instances, Commissioner, the spread of hours are as agreed.

PN54

The spread of hours is obviously what is at issue here because the unregistered agreement has a spread of hours, ordinary hours, on Saturday from 8.45 to 5 pm, which is in excess of the award provision which has a spread of hours in libraries up to midday on Saturday for ordinary time. So it is a Saturday afternoon, Commissioner, that is at odds here.

PN55

We believe - the City of Stonnington believes - believed and continues to believe that they actually had an agreement with the ASU as early as December 1995 in correspondence from Mr Williams, who was then the branch secretary. Further correspondence from the ASU, again from Mr Williams, to the City of Stonnington says:

PN56

The following items are all -

PN57

this is talking about the Local Area Work Agreement for Library and Information Service. I don't actually have copies but I am happy to show Mr Henderson. It is addressed to Mr Stemson at the City of Stonnington and says:

PN58

The following items are all satisfactory to the ASU and membership -

PN59

and it lists all those items including the spread of hours and it does make a couple of comments in respect of a couple of the clauses that they would like to have seen changes. Further - an email from Mr Gray, who was the subsequent organiser from the ASU, talking about the Saturday hours and how staff are happy with the outcome, etcetera, etcetera. So even though the agreement wasn't certified, Commissioner, and, you know, with the attendant difficulties that everybody is aware that raises and, indeed, attendant difficulties even if it is certified, but certainly in this instance, I guess our view is that we are of the view and remain of the view that we had an agreement with the ASU, albeit unregistered, uncertified, and we think that it is disingenuous at this time to now be coming back some six years after that agreement was first made to suggest that there has been an out of the award or breach of the award, in effect.

PN60

We would say, Commissioner, that the wording of the new award - sorry, the new enterprise agreement, that is the EB4 that Mr Henderson referred you to, where it says that in clause 6:

PN61

A relationship with other awards and agreements and it replaces -

PN62

and it names the agreements that this particular new enterprise agreement that was certified just a couple of months ago replaces and one of them, as I said before:

PN63

The provisions of the unregistered agreements known as -

PN64

first dot point -

PN65

City of Stonnington Library and Information Service Certified Agreement 1995.

PN66

So we say that Stonnington was operating and operating on a clear understanding that there had been an agreement reached. If the ASU is saying that there was no agreement reached back in 1995/96 then we would ask the question - I guess it is rhetorical now but we would nevertheless ask the question - if it was such a concern to them, why wasn't it dealt with in the 1999, at the earliest time, enterprise agreement? Why wasn't there negotiations initiated by the ASU back in - after the Workplace Relations Act came in to actually seek to have the agreement certified?

PN67

Sir, we think that the provisions of the agreement should stand. We don't deny that they were different to the award. They were different, in fact, lesser than the award provision in that particular item. I don't think it is probably appropriate, even now, unless you think it is, to talk about the offsets and all that sort of thing. It is a matter of principle, I think, at this stage that an agreement was with the ASU and Stonnington is now being accused of doing something other than what that agreement provided for.

PN68

Can I also just say there was correspondence from the City of Stonnington. Just in the last week there was to be a meeting, I think, last Friday - Tuesday, I beg your pardon - last Tuesday, to see if a meeting could be held to further progress this matter. The union chose not to attend that and instead we find ourselves here. And, I mean, we are not arguing about the fact that we are here. We just thought that it might have been appropriate to have that meeting to see if anything could be done. But I do make the point, Commissioner, that we believe that there was an agreement with the ASU.

[10.49am]

PN69

That it was unregistered is certainly not a good move but wasn't unusual in those days. The union is now saying that agreements are not to be honoured, then we would think, that is a fairly sad state of affairs. If the Commission pleases.

PN70

THE COMMISSIONER: Yes, thanks. Any response, Mr Henderson?

PN71

MR HENDERSON: No, thank you, no.

PN72

THE COMMISSIONER: Proceedings will adjourn into conference, thank you.

NO FURTHER PROCEEDINGS RECORDED [10.50]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 LETTER FROM UNION TO THE COUNCIL DATED 01/05/2002 PN6
EXHIBIT #H2 LETTER FROM COUNCIL TO UNION DATED 22/05/2002 PN6
EXHIBIT #H3 THE LIBRARY AND INFORMATION SERVICE WORKPLACE AGREEMENT PN24