AG2002/4759, Transcript of Proceedings [2002] AIRCTrans 4049 (11 October 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/4759

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by Australian Municipal, Administrative,
Clerical and Services Union - South Australia
and Northern Territory Branch and Another
for certification of the District Council
of Robe ASU Enterprise Bargaining Agreement
No 5 (2002)

ADELAIDE

8.52 AM, FRIDAY, 27 SEPTEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have some appearances, please?

PN2

MS L. JAMES: I appear for the District Council of Robe.

PN3

MR D. PAYNE: I appear on behalf of the Australian Services Union.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Payne, are you the applicant in this matter?

PN5

MR PAYNE: No, sir.

PN6

THE SENIOR DEPUTY PRESIDENT: You are not. Very well. Ms James?

PN7

MS JAMES: I have the honour of speaking first, Senior Deputy President. This agreement comes before you under section 170LS of the Act by the District Council of Robe and with the Australian Services Union. This is enterprise bargaining agreement number 5 of 2002. The agreement covers 28 employees and the statutory declaration sets out the consultative process undertaken. There were workplace meetings. All employees were given the opportunity to provide comment and also all employees got a copy of the draft agreement.

PN8

The vote was conducted on 6 September 2002. The agreement was to take effect from the first pay period after 1 March 2002 with a non expiry date of 28 February 2004. The agreement is largely the same as the previous agreement. The council has been involved - as you can see, this is our fifth enterprise agreement. There are a couple of changes and as I usually do I go through those changes with you. They are quite minor. Clause 5, the objectives has the inclusion of the last two dot points. It simply provides for open and honest communication in all aspects of council operations and also council wishes to develop a performance development and review programme so that all employees can be involved in a performance appraisal process.

PN9

Clause 16, the fourth paragraph refers to appendix A. This appendix covers the conditions that are particular just to the child care services staff. This was an outsourced service. Council has now brought that under the control of the council, therefore all those employees are now involved in - they are employees of council and are involved in enterprise agreements but there's a section that pertains solely to their conditions. The final change is clause 27, the inclusion of salary sacrificing which enables employees to move some of their salary into their superannuation fund.

PN10

The wage rates are between 18 and 22 per cent above the award and even though the agreement provides for 76 hours overtime at the ordinary rate of pay, this more than compensates for any of those overtime hours worked at the ordinary rate. There are no other changes in this agreement, therefore you may ask me any questions if you wish. Other than that, we seek that you certify the agreement before you today.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms James. I have got a few questions but I will hear from Mr Payne first. Thank you.

PN12

MS JAMES: Thank you.

PN13

MR PAYNE: Thank you, Commissioner. To be brief, Commissioner, the ASU supports Ms James' submissions and the application for certification of the agreement today and as Ms James has pointed out that clause 6, period in operation, specifies a nominal expiry date of 28 February 2004 and is within the requirements of 170LT(10) of the Act. The ASU also believes that the agreement does not on balance reduce the overall terms and conditions of employees and I haven't any specific clauses that I had intended to go to, Senior Deputy President. Suffice to say that the ASU would be seeking certification of the agreement today.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Payne. Mr Payne, I will address the few questions I have to Ms James but you would be well aware from previous matters that you are welcome to leap to your feet to answer a question should you feel better equipped to do so.

PN15

MR PAYNE: Thank you.

PN16

THE SENIOR DEPUTY PRESIDENT: Ms James, you would be aware too from previous matters that my questions are not designed to inhibit the process of certification but rather to clarify the intention of the parties on a couple of issues.

PN17

MS JAMES: Yes, sir.

PN18

THE SENIOR DEPUTY PRESIDENT: I appreciate that the questions I am asking may in part at any rate relate to provisions which have been in effect for some time and hence I acknowledge that you may well say to me that a particular provision has not been a problem to date and may not be a problem for the future. Can I take you first of all to clause 12 and the provisions relating to best practice. Can I just clarify in that regard the process which is envisaged there. As I understand it, that workplace committee meets on a biannual basis to discuss issues and develop action plans, would then, in accordance with the last paragraph in the clause, enable consultation with all of the employees or does the consideration of that workplace committee enable any proposals pursuant to best practice concepts to then be put in place without the need for consultation with staff or generally?

PN19

MS JAMES: No, there would definitely be a consultative process with all employees with regard to those conditions.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 14, uniforms, can I ask you to clarify the intention, particularly that evidenced by the last five words in the clause. I followed the clause to the requirement to where:

PN21

Local government corporate wardrobe during working hours -

PN22

but I was a little intrigued as to the words "where work duties are appropriate". Can you tell me what the parties intended in that regard?

PN23

MS JAMES: Yes, I can explain that clause quite fully for you. Firstly, the council does not contribute or subsidise the wardrobe. Employees are required to fund the wardrobe themselves. They have the child care services staff now covered under this agreement where it is not appropriate that they wear blazers and navy skirts and navy pants and ties and those sorts of things when they are working with children.

PN24

THE SENIOR DEPUTY PRESIDENT: In case the children dribble on them and things like that.

PN25

MS JAMES: Exactly. So the corporate - - -

PN26

THE SENIOR DEPUTY PRESIDENT: It has been known to happen, I understand.

PN27

MS JAMES: I'm sure that would. The corporate wardrobe pertains only to the admin staff and those who are in the public eye, you might say.

PN28

THE SENIOR DEPUTY PRESIDENT: I see. So the words "where work duties are appropriate" should be taken to refer to the - fundamentally to the child care services unit.

PN29

MS JAMES: That is correct. That then is also mentioned in their particular appendix A which talks about them wearing suitable clothing, to at least uphold a dress code which is appropriate to managing and looking after children, managing the activities of children.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 16 references in terms of the Works Manager the AWU enterprise bargaining agreement clause 16. Is that a current agreement and secondly, is it the intention then that whatever the AWU enterprise bargaining agreement establishes in terms of hours, those hours would apply to the Works Manager covered by this agreement?

PN31

MS JAMES: Yes, that is correct. There is a provision in the award which provides for supervisors who are working with depot and field staff, that their hours comply to that particular operation. That is just simply being recorded here in this enterprise agreement and yes, they do have a current enterprise agreement.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 17 is referenced in terms of 17(1) and (2) in the statutory declaration in that it is said to be a reduction in award entitlements. Can I take it that it is those provisions that you referred to insofar as you were outlining to me that the wage rates under this agreement more than compensate for the extent of any lost overtime penalty rates?

PN33

MS JAMES: Yes, sir. They are required to work up to 76 hours of overtime on their rates which translates to 38 hours of the - well, 76 hours of half-time which is 38 hours in effect, so it is a week's wages that they may be required to work, it is not mandatory but normally by agreement. The wage rate at 18 to 22 per cent above the award certainly compensates for that week's pay or the week's worth of wages.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 25 notes that:

PN35

It is recognised that wage increases may be sought from the sixth round of enterprise bargaining agreements.

PN36

Now, what should I read into that?

PN37

MS JAMES: That just simply means that when they commence their negotiations again they would be looking for a further wage increase, so it is really just highlighting that there would be a next round and on the agenda will be a wage increase.

PN38

THE SENIOR DEPUTY PRESIDENT: I see, right, but it does not establish any obligations pursuant to this agreement.

PN39

MS JAMES: Not under this round, no.

PN40

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN41

MS JAMES: This would be referred to as the fifth round.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 29 is one that reflects a question on my part or a statement on my part which is somewhat of a different nature than some of my earlier questions and I simply need to note there that this agreement once certified will be used by a party before this Commission if necessary. The extent to which the clause can be taken to obligate any other party not to refer to it is I think a somewhat nebulous concept. It might be well intentioned but I doubt very much that it is at all enforceable.

PN43

MS JAMES: I would agree, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. One final question that relates to schedule A and in that regard level 8 references the levels 3, 4, 5 and 6. I must say it is not all that easy to link those levels 3, 4, 5 and 6 within level 8 to the three sub groups within level 8 in the award. I'm just wondering whether you are able to help me in that regard.

PN45

MS JAMES: I can, sir. There are two streams. There's the general officer stream and the senior officer stream. The way that the award wage streams work, levels 6, 7 and 8 of the GO stream actually are exactly the same as levels 1, 2 and 3 of the SO stream.

PN46

THE SENIOR DEPUTY PRESIDENT: I see.

PN47

MS JAMES: So levels 4, 5 and 6 are merely a continuation of the senior officer stream, the SO stream.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Ms James. Mr Payne, do my questions occasion you the need for any degree of angst at all?

PN49

MR PAYNE: No, sir.

PN50

THE SENIOR DEPUTY PRESIDENT: You are sitting back relaxed?

PN51

MR PAYNE: I think it was being handled quite competently, sir, and the answers we support in all of the responses from Ms James to the Commissioner and certainly took on board the Commissioner's statements with respect to clause 29 and also agree with that position.

PN52

THE SENIOR DEPUTY PRESIDENT: Ms James, I can see a job offer coming. Having considered both the statutory declarations and the information provided to me today, I am satisfied that the agreement was reached through a process consistent with that provided for by the Act so that employees were able to make an informed choice in relation to the agreement. I am also satisfied the agreement itself meets the requirements of the no disadvantage test. It has the necessary dispute resolution procedure contained within it. It is of a duration envisaged by the Act and it does not contain provisions which are contrary to the Act. I will certify the agreement with effect from today. The certificate will be forwarded out to the parties within the next few days and it remains for me to again express my wish that the agreement operates to benefit both the employees and the employer. I adjourn the matter on that basis.

ADJOURNED INDEFINITELY [9.09am]