AG2002/304, Transcript of Proceedings [2002] AIRCTrans 4096 (18 October 2002)

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TRANSCRIPT OF PROCEEDINGS

O/N WT05466

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT COLEMAN

AG2002/304

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by Western Power Corporation and others for
certification of the Western Power Certified
Agreement 2002

PERTH

10.35 AM, THURSDAY, 3 OCTOBER 2002

PN1

MR S.H. DUNSTAN: I am appearing with MR M.P. SIMS on behalf of Western Power Corporation in this matter.

PN2

MR S. O'BYRNE: I represent the CEPU, the Communications Electrical and Plumbing Union.

PN3

MR M. KANE: I appear on behalf of the Australian Municipal Administrative and Services Union, ASU.

PN4

THE DEPUTY PRESIDENT: Thank you.

PN5

MR DUNSTAN: Thank you Deputy President. This application to certify the Western Power Certified Agreement 2002 is made pursuant to Division 3 of Part V1B of the Act. In accordance with the requirements of the Act, an application, a statutory declaration was made yesterday on behalf of Western Power and also filed by the two unions. They were filed in the registry on 2 October and that was made by Martin Sims on behalf of Western Power.

PN6

The stat declaration does address all of the issues that we submit the Commission needs to be satisfied with for certification of the Western Power Certified Agreement 2002. Additional comments I would make are that no employee will be disadvantaged in relation to the terms and conditions of the agreement in accordance with section 170LT(2). The approval of the certified agreement was conducted by the Australian Electoral Commission by secret ballot. I hand up to the Commission the results of that ballot.

PN7

THE DEPUTY PRESIDENT: Thank you.

PN8

MR DUNSTAN: Sir, the document is headed: 2002 Certified Agreement Postal Ballot for Employees of Western Power Corporation and that is signed by Ian Panegyres, Returning Officer for the Australian Electoral Commission. I submit that it be marked as an exhibit, sir.

PN9

THE DEPUTY PRESIDENT: Thank you. I will enter the certification from the Returning Officer of the Australian Electoral Commission dated 1 October for the 2002 Certified Agreement Postal Ballot for Employees of Western Power, as exhibit 1.

EXHIBIT #1 CERTIFICATION FROM THE RETURNING OFFICER OF THE AUSTRALIAN ELECTORAL COMMISSION DATED 01/10/2002 FOR THE 2002 CERTIFIED AGREEMENT POSTAL BALLOT FOR EMPLOYEES OF WESTERN POWER

PN10

MR DUNSTAN: And now for the good news. The total of 1653 votes were submitted and a total of 1570 employees approved the certified agreement which equates to about 92 per cent of our employees approving the agreement. Sir, I will just turn to the agreement itself. I don't intend going through the document other than to make some observations which you will need to address in terms of the certification requirements placed upon the Commission.

PN11

It does contain dispute settlement procedures in accordance with section 170LT(8). They are found at clause 9 of the agreement and, also, in accordance with section 170LT(10) of the Act, clause 6 of the agreement specifies that it is a three year agreement. Subject to certification this morning, sir, it will operate from this Sunday, 6 October, and in my reckoning, it would then nominally expire on 5 October 2005.

PN12

THE DEPUTY PRESIDENT: That is the Sunday being the commencement of the first pay period commencing on or after today's date?

PN13

MR DUNSTAN: Yes, after today's date.

PN14

THE DEPUTY PRESIDENT: Thank you.

PN15

MR DUNSTAN: I note the Act is specific with respect to a nominal expiry date and we aren't in the agreement but my submission is that three years after that date will be 5 October 2005 which I think it is the Commission's practice to mention that in the order certifying the agreement. In addition, sir, there are no provisions in the agreement that are discriminatory. There is no preference clause in there and the conditions relate to the employment relationship which is something the Commission, I think, is currently reviewing when agreements are coming before for certification.

PN16

For the record, there were two minor amendments made and agreed by the parties since the agreement was issued for approval and I just mention those so that we have no issues arising with what employees have seen and voted upon. That would remove some ambiguity with respect to a word that sneaked into the definition of casuals which is found under clause 12 of the award, subclause (c) paragraph (iii). We have just deleted the word "classification", it was nonsensical and just a throw back from an earlier agreement.

PN17

And the second change we have made, sir, is - which you won't see because you have got the change, of course, it is clause 20, payments under this agreement. We have just made two or three word changes to clearly indicate that this agreement will apply to all people who are employed on Sunday and after that and employed subject to that. There was some clarification required in terms of who had actually - be paid under this agreement. There was no issue with who would be, the parties agreed but it was a simply closer reading of that may have had some concern for some employees. And that simply clarifies the entitlement of employees to the increases.

PN18

THE DEPUTY PRESIDENT: Can I just get it clear? The certification will take place today and will be operative from the first pay period commencing on or after today?

PN19

MR DUNSTAN: Sir, clause 6 of the - - -

PN20

THE DEPUTY PRESIDENT: And does that mean the people who are employed today will have the benefit of the entitlements under this certified agreement?

PN21

MR DUNSTAN: Pardon sir?

PN22

THE DEPUTY PRESIDENT: So the people who are employed today will have the benefit.

PN23

MR DUNSTAN: Yes. Absolutely.

PN24

THE DEPUTY PRESIDENT: And so when you say the people who are employed on Sunday, there won't be any who miss out between today and Sunday?

PN25

MR DUNSTAN: No, no problems with that.

PN26

THE DEPUTY PRESIDENT: Right. That is all.

PN27

MR DUNSTAN: The only issue would be if someone left the employer.

PN28

MR O'BYRNE: As long as they maintain their employment.

PN29

MR DUNSTAN: And the agreement talks about being operative from that - from the first pay period on or after today's date.

PN30

THE DEPUTY PRESIDENT: Right.

PN31

MR DUNSTAN: Having said that, sir, and unless there is any other questions, we would just simply submit that Western Power is very pleased to have a new certified agreement within three weeks of the expiry of the previous agreement. This agreement itself builds upon a lot of the hard work that was in the previous agreement which the Commission has presently constituted had much more involvement than this particular one. We commend the agreement to the Commission for certification and the last comment is one of a procedural matter sir.

PN32

There is an application before you, Number 4389 of 2002, which you presided over a conference on 3 September. Western Power formally ask that that file now be closed. It is of no consequence now that there has been an overwhelming approval by our employees to this agreement.

PN33

THE DEPUTY PRESIDENT: I think I have got that file, yes, 43 - - -

PN34

MR DUNSTAN: 89.

PN35

THE DEPUTY PRESIDENT: 89 of 2002, yes. Thank you Mr Dunstan. Mr O'Byrne?

PN36

MR O'BYRNE: Deputy President. We would concur with Mr Dunstan's submissions for the purposes of registration. In respect to our statutory declaration that we have lodged in support of the registration of this agreement, we emphasise the information and explanation sessions that were conducted by the parties once agreement had been reached. Those explanation and discussion meetings followed explanation summary documents that were sent out by the respective parties for the purposes of the employees/union members to be able to become familiar with the agreement.

PN37

We conducted the explanation meetings virtually on every site throughout Western Power, that is effectively every site from Kununurra to Esperance, Perth to Kalgoorlie and everything in between. Where we had site meetings, for example, at Northam, we were bringing in the smaller satellite depots like Moora and Koorda to the Northam meeting. Another example, a mass meeting in Bunbury Picton, we had depots Margaret River, Busselton, Narrogin, Bridgetown, Collie, Waroona, coming to those major meetings.

PN38

The meetings for the purposes of the joint explanation of the certified agreement were, on average, around about two and a half hours a piece. Some meetings went for nearly five hours but, in the main, the explanation and discussion sessions that were carried out jointly between the unions and the company were very successful and the employees engaged that process. So we believe we have well and truly covered the provisions of the Act in terms of making sure people are aware of the agreement that was proposed for their signature.

PN39

In respect to a couple of matters that Mr Dunstan raised in terms of minor amendments, we confirm our agreement and acceptance in respect to clause 12 of the proposed agreement in regards to casuals and the deletion of classification. We further agree with the submissions Mr Dunstan made in regards to clause 20, the rates of pay to apply and the ambiguity that was removed with the wording change and to make that very clear, the ambiguity that was removed now satisfies the issue that all employees will be paid under this agreement whether they are on the pay roll today or after registration purposes.

PN40

In respect to application 4389 of 2002, good to see that that issue and that file has been closed. We do make the point that we still have a principle objection to the issue of AWA contracts employees having a vote but, for the purposes of this registration and these proceedings, that is a non-event. We just stake our principle opposition to that issue and hopefully it will never come up for argument in the future. In respect to the timing of the agreement, we would like to acknowledge that it has been a great effort achieved by all parties.

PN41

This is the first time in Western Power SECWAs history that I am aware of that there has been a negotiated agreement for a reasonable pay increase without having had a blow of protective industrial action thrown in the form of a campaign to secure an agreement. So that is quite a milestone from our point of view. What we are also able to do, with this agreement, was also secure some two pages of government guarantees from the Deputy Premier, the Minister for Energy, Mr Eric Ripper, and those guarantees we were able to secure from Mr Ripper, the Deputy Premier, are in relation to pending electricity reform that the government may come up with and we were seeking extra commitments and guarantees around proper redeployment retraining efficient reform that didn't result in a number of things detrimentally occurring - sorry, occurring that would be detrimental to our membership.

PN42

They are not part and parcel of the agreement but they supplemented the proposed certified agreement and gave our membership enough courage to vote yes and get on with the bigger issues, which is the issue of electricity reform that the State Government is taking up. We will be more than happy to pass on to the Commission a copy of those guarantees so you can see the relevance of them.

PN43

THE DEPUTY PRESIDENT: They are certainly raised in matter 4389 of 2002, in the context of the discussions that were taking place at that time.

PN44

MR O'BYRNE: Yes and hopefully Mr Young would have confirmed our position properly there, sir. Not doubting his skill and ability but they were relevant in the context of that matter, just as they are in regards to this proposed agreement and all round we believe we have been able to achieve something that is very good for the membership. In respect to the figures issued by the Australian Electoral Commission, we saw some 743 ballot papers issued to wages employees, with some 516 ballot papers received.

PN45

On the question of the 227 ballots unreturned, we would say that that is due to either lack of interest on behalf of those individuals or the other real possibility is incorrect postal address information. But, nonetheless, those figures are a clear indication to my organisation that we support registration. It is clearly demonstrated that an overwhelming majority of our employees, some 459 of them, have approved the agreement with 57 non-approved and pleased to say no informal votes on behalf of our learned membership.

PN46

That is about the only - that is about it for our submission, sir, other than there are some questions that need to be sorted out in regards to the wage schedules but I believe between the parties we could sort out any concerns regards the proposed rates and the calculations. There is a couple of little differences in our calculations compared with the company and I think that goes to the formula used. We have an understanding on that but, if need be, we can sort that out between ourselves. I don't think that should affect registration, sir.

PN47

THE DEPUTY PRESIDENT: Right.

PN48

MR O'BYRNE: If it pleases the Commission.

PN49

THE DEPUTY PRESIDENT: Thank you Mr O'Byrne. Thank you Mr Kane.

PN50

MR KANE: Thank you. The ASU would seek the certification of this agreement. There was extensive consultation with the ASU membership. The ASU recommended this agreement to members who overwhelmingly voted for it - I think it was, our membership was up around the 92 per cent mark in terms of those in favour. We recommended this agreement on the basis that it was a good agreement and that, on the basis of the assurances sought and gained from the State Government in respect to electricity reform and based on those assurances, members were confident enough to overwhelmingly vote yes to this agreement.

PN51

A statutory declaration has been provided by the secretary of the ASU(WA) Branch, Mr Paul Burlinson. The declaration and agreement complies with the requirements of the Act and we support the comments made by Mr Dunstan and Mr O'Byrne in respect to the amendments to the document which went to a vote in respect to clause 12 and clause 20. The only comment I make in terms of the agreement itself is in terms of clause 7, the objective principles and programs and particularly in respect to clause 7(b)(2):

PN52

The union parties have agreed to inclusion of reference to the minimum standards of conduct...

PN53

and - sorry, yes, minimum standards of conduct. We just note the point that in negotiations we agreed to that on the basis that there would be a roll out of those standards although they have been a part of the organisation's policy frame work. We were particularly keen they were going to be included in the agreement that subject to the agreement they would be rolled out to employees so there was a clarify of understanding about the employees' obligations and responsibilities and so, on that basis, we have agreed to that provision going into the agreement. So we have that understanding of the company and that would conclude the submission for the ASU. Thank you, sir.

PN54

THE DEPUTY PRESIDENT: Thank you. Just for the record, Mr Kane, did you wish to comment on those variations to the original document? You were aware of them - - -

PN55

MR KANE: Yes.

PN56

THE DEPUTY PRESIDENT: And they just clarify the ambiguity - overcame any ambiguity?

PN57

MR KANE: We were the party that raised those two issues and based on the document being considered by members so we are fully in agreeance with those two changes to clause 12 and clause 20.

PN58

THE DEPUTY PRESIDENT: And to have matter C4389/2002 closed?

PN59

MR KANE: Yes, we consent to that.

PN60

THE DEPUTY PRESIDENT: Thank you. Thank you very much gentlemen. This application for certification of the agreement pursuant to the Workplace Relations Act between the company - and if I can just get it clear, it is Western Power Corporation - the information that I have got is the Electricity Commission pursuant to Electricity Corporation Act of 1994 and the party is Western Australia. Is there some complication?

PN61

MR DUNSTAN: No, the Act has been amended so we are - our trading name is Western Power Corporation as well as the corporate name.

PN62

THE DEPUTY PRESIDENT: In the definitions to the document. It cites Western Power, the Electricity Corporation pursuant - created pursuant to the Electricity Corporation Act. And so that is still - is that still correct or should it be just amended to be Western Power Corporation? The parties to the agreement are Western Power ASU and CEPU?

PN63

MR DUNSTAN: Yes, yes.

PN64

THE DEPUTY PRESIDENT: If I just get Corporation put, Western Power Corporation, presumably it is created pursuant to Electricity Corporation Act?

PN65

MR DUNSTAN: Yes sir, if that was - the original Act was how the business was prescribed - - -

PN66

THE DEPUTY PRESIDENT: Prescribed, yes.

PN67

MR DUNSTAN: As I have mentioned, we now are known as Western Power Corporation in the legal sense - - -

PN68

THE DEPUTY PRESIDENT: That is the legal entity.

PN69

MR DUNSTAN: In the legal entity, as well as the trading name.

PN70

THE DEPUTY PRESIDENT: Right. So if we call it - if I can just write in the word "Corporation" under Western Power in the left hand column of the document?

PN71

MR DUNSTAN: Yes sir.

PN72

THE DEPUTY PRESIDENT: That will meet everybody's agreement?

PN73

MR DUNSTAN: Yes.

PN74

THE DEPUTY PRESIDENT: And on the final page, the signatories to the document - and I will just add the word "Corporation" after the word "Power" there as well.

PN75

MR O'BYRNE: Yes.

PN76

MR DUNSTAN: Yes sir.

PN77

THE DEPUTY PRESIDENT: Right. I suppose it is best if I get it typed in? If I write it in, are the signatories to the document here now?

PN78

MR O'BYRNE: No.

PN79

MR DUNSTAN: No, they are not. No, sir, Mr Burlinson is not and Mr Games.

PN80

THE DEPUTY PRESIDENT: It doesn't raise any obstacles. The legal entity is Western Power Corporation.

PN81

MR DUNSTAN: Yes sir, that has been checked. I don't think leaving as it is causes any problems for Western Power.

PN82

THE DEPUTY PRESIDENT: Because Western Power is the entity - - -

PN83

MR DUNSTAN: Yes.

PN84

THE DEPUTY PRESIDENT: That now is Western Power Corporation any way.

PN85

MR DUNSTAN: Yes.

PN86

THE DEPUTY PRESIDENT: And it would by law be picked up as Western Power Corporation.

PN87

MR DUNSTAN: That is exactly right.

PN88

MR SIMS: It could be no other organisation under the Act any way.

PN89

THE DEPUTY PRESIDENT: You agree with that Mr O'Byrne?

PN90

MR O'BYRNE: My only concern, Deputy President, is if we don't get the correct title of the company and there were hypothetically an industrial magistrate prosecution for underpayment of agreement, a clever lawyer could play with that title. So it does need to be cleared up. Western Power Corporation does need to be the name. Whether or not that is a problem leaving as it is in the current agreement begs a question.

PN91

THE DEPUTY PRESIDENT: Well to be sure can we just get replacement pages? If I get a replacement page for the page 2 of the document - - -

PN92

MR DUNSTAN: Yes sir.

PN93

THE DEPUTY PRESIDENT: And the final page of the signed copy has the word "Corporation" added to it, I am happy to accept it.

PN94

MR DUNSTAN: Okay, we will undertake to do that sir.

PN95

THE DEPUTY PRESIDENT: Can you undertake to provide that to me - - -

PN96

MR DUNSTAN: And forward copies to the other parties.

PN97

THE DEPUTY PRESIDENT: Mr Kane?

PN98

MR KANE: Just only a comment. Probably the easiest way to do it is just, in terms of definitions page to change the definition of Western Power to Western Power Corporation.

PN99

THE DEPUTY PRESIDENT: Corporation - yes.

PN100

MR KANE: And as per the Electricity Corporation's - and the Electricity Corporation created pursuant to Electricity Corporations Act of 1994. That way we don't need to change the signatory page because Western Power - - -

PN101

THE DEPUTY PRESIDENT: Yes Western Power will be defined, yes. So can you get that first page replaced for me?

PN102

MR SIMS: Yes.

PN103

MR DUNSTAN: Yes sir.

PN104

THE DEPUTY PRESIDENT: And with the copies, the number of copies I will need, one, two, three. The original - well, one plus the three copies that I have here.

PN105

MR DUNSTAN: Yes Deputy President.

PN106

THE DEPUTY PRESIDENT: Right? Thank you.

PN107

MR O'BYRNE: Sorry, there is only one other point, any other documents filed with registry would need a new page number 2.

PN108

THE DEPUTY PRESIDENT: Yes. That is what I am saying. If I have enough copies to place it on the original file - the one on the original file plus the three copies that - I have got the copies that were lodged in the registry here so if there is sufficient copies for the original and three other, I will ensure that page 2 is replaced to accommodate that requirement.

PN109

MR O'BYRNE: Okay.

PN110

THE DEPUTY PRESIDENT: So the other parties, being the Australian Municipal Administrative Clerical and Services Union and the CEPU, the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia. The agreement is in part settlement of an industrial dispute found to exist between the parties in matters number C31444 and C22190 of 1995. The agreement covers part of a single business. That is correct, isn't it gentlemen?

PN111

MR DUNSTAN: Sir.

PN112

THE DEPUTY PRESIDENT: And the award that applies - I just get the correct title of the award, it is set out as: Electricity Industry (Western Power Corporation) Award of 2000. Thank you. The agreement is in accordance with section 170XA in that it does not disadvantage employees in relation to their wages and conditions. The agreement has provisions for settling industrial disputes. The agreement is for a fixed term. The agreement has been genuinely approved by a valid majority of employees who will be subject to this agreement and the employees were provided with a copy of the agreement at least 14 days prior to the ballot or access to a copy of the document 14 days prior to.

PN113

The application for certification was lodged within 21 days of the approval by the valid majority and all the statutory requirements necessary for certification have been met. As a consequence, I will certify the agreement to be operative from the first pay period commencing on or after today's date and will remain in force until the expiry date of 5 October 2005. It only leaves me just to congratulate the parties. I must say, as someone who has been involved on and off I suppose for the best part of a decade with SEC, Western Power, Western Power Corporation, there was a certain sense of foreboding when time slipped by so quickly since the last negotiations and I couldn't believe that that had expired.

PN114

But I must say, it has been always a very rewarding experience to be involved in the cut and thrust of industrial relations in Western Power and with the people who have been the participants and I know whilst the people before me have carried a heavy burden, there are also people back in the office and back in management and in the union who have contributed and, of course, the members who have raised all those difficult questions, who have analysed the pros and the cons and raised issues that we may not have been aware of at the time.

PN115

But to everybody's credit, this, I suppose, marks somewhat of a watershed in the relationship between the two unions and Western Power and if you would take my congratulations, not only to yourselves but to everybody else who has been involved and thank you for enabling me to be part of this little bit of history. Thank you very much.

ADJOURNED INDEFINITELY [11.05am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 CERTIFICATION FROM THE RETURNING OFFICER OF THE AUSTRALIAN ELECTORAL COMMISSION DATED 01/10/2002 FOR THE 2002 CERTIFIED AGREEMENT POSTAL BALLOT FOR EMPLOYEES OF WESTERN POWER PN10