AG2002/300, Transcript of Proceedings [2002] AIRCTrans 4387 (11 November 2002)

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Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N WT05535

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2002/300

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by the City of Stirling and Others for
certification of the City of Stirling
Salaried Officer's Enterprise Agreement III
2002

PERTH

2.06 PM, TUESDAY, 22 OCTOBER 2002

Continued from 18.10.02 by E-hearing [not transcribed]

PN1

MR L. JOYCE: I appear on behalf of the City of Stirling.

PN2

MR S. BIBBY: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

PN3

MR D. MOSS: I appear on behalf of the Association of Professional Engineers, Scientists and Managers of Australia.

PN4

THE DEPUTY PRESIDENT: Look, I listed these matters for formal hearing as you are all aware other similar matters I have dealt with by E-hearing and given the responses of the parties in those other matters, there is no reason why they should not be certified. In this particular matter, however, there are differences in the nature of the responses to the questions I posed with respect to the dispute settlement procedure. I might note Mr Bibby that responses that the ASU has made, both in this and other matters, I have no difficulty with, but those responses are slightly different to APESMA's responses and Mr Joyce, I think you indicated that you had no difficulty with, at least if not in this matter, from other matters, the City has no difficulty with the ASU responses.

PN5

The issue I have and I think it is fairly clearly outlined in the manner of your response Mr Bibby of what I was getting at and that was the breadth and scope of the dispute resolution clause, or dispute settlement clause and whether given that breadth and scope that the Commission should agree to being empowered to deal with all issues that arise out of that dispute settlement clause. Now if I am correctly paraphrasing you Mr Bibby, what you were saying, or what your response was: well, you want to keep the scope, but you don't envisage that the Commission would be expected to deal with matters that fall outside the application of the agreement in its terms, unless following conciliation with a matter that dealt with broader issues, there was consent to that being dealt with in arbitration. Am I correctly paraphrasing you?

PN6

MR BIBBY: Yes, sir, that is correctly paraphrased.

PN7

THE DEPUTY PRESIDENT: And I don't have any difficulty with that, but that is different from your approach Mr Moss?

PN8

MR MOSS: I'm not sure that the way we would put it was very much different to the way you paraphrased it.

PN9

THE DEPUTY PRESIDENT: Well, I wasn't paraphrasing you, I was paraphrasing the ASU.

PN10

MR MOSS: Okay, the position taken there. As we see it the employees, who have got disputes, will automatically take things, usually they will take things through a dispute settlement procedure and the issue becomes, when it gets to the Commission, what is going to happen to it. Now, it is well established since the Bain v Cadbury Schweppes decision that the Commission can deal with matters wider than the ambit of the dispute, the Commission in the past in relation to conciliation I am referring to and the Commission has in the past conciliated on matters not covered by an Enterprise Bargaining Agreement.

PN11

The issue, I suppose, comes down to the issue of arbitration and section 170LW seems to impose certain restrictions on what the Commission can arbitrate or can't arbitrate. With the High Court decision in March last year, our reading of the High Court decision was that section 170LW does not preclude parties reaching agreement on empowering the Commission to deal with other matters and in private arbitration if the parties agree and that is all we were referring to.

PN12

If the Commission conciliates on a matter not covered by the EBA, and it can do that, and then the parties indicate to the Commission that we would like to arbitrate and it is up to the Commission to decide whether it would have that power conferred on it and as we read the High Court decision the Commission can deal with the matter and it is subject, of course, to not merely to what the High Court said in paragraphs 31 or 32, but also in paragraph 34 and there, of course, it is subject to the Act.

PN13

THE DEPUTY PRESIDENT: Yes, but that wasn't the issue that I was raising. The issue I was raising is if the parties want to have the breadth of the agreement in your response to apply to any grievance complaint dispute, or any matter, whether arising out of the EBA or not.

PN14

MR MOSS: Yes sir and that was our understanding of what was being dealt with in the enterprise bargaining negotiations and I thought the issue going from that is how the matter can be dealt with, well at the shop floor level the City will deal with its employees through the dispute settling procedure. What happens if there is no resolution at that level, where does it go from there is the issue that we need to discuss.

PN15

THE DEPUTY PRESIDENT: That is right and that is why I'm saying with such a nebulous approach to it, why should I agree to the Commission being empowered to do anything, because it is at the point of certification that 170LW where the discretion of the Commission is applied and what I am saying is Mr Bibby has outlined the manner in which a dispute would be dealt with. Mr Joyce has indicated that they agree with that approach. I have indicated I don't have any difficulty, given there being some definitiveness as to how it would be approached and what you appear to be saying, at least in your response to my questions earlier, in writing, were: well we will look at that when we get to it.

PN16

MR MOSS: Sir, that was my understanding of the way the negotiations were conducted, but I bow to the employer and the union, the ASU, because they have the vast bulk of the membership sir and I am quite happy to sit down and accept their understanding of what was discussed and agreed.

PN17

THE DEPUTY PRESIDENT: Okay, so what you are saying is the manner in which 170LW should be applied, or would be applied, is the manner in which it has been outlined by the ASU and on that basis the Commission should be empowered, or consent to being empowered to deal with disputes arising out of that clause, is that what you are saying?

PN18

MR MOSS: Yes sir.

PN19

THE DEPUTY PRESIDENT: Okay, thank you Mr Moss. Well on that basis gentlemen I don't have any further questions of you unless you wish to raise any issues, the agreements comply, as I think I indicated through the checklist on the site, it complies in all other respects and it was that issue that concerned me. I don't want to see agreements of this nature causing difficulties because of a lack of understanding as to what the intent is, I think having had that explanation by Mr Moss I am satisfied that it meets the requirements of the Act and the agreement will be certified to take effect on and from today's date, unless there is anything further anyone wishes to add with respect to this agreement? Thank you.

ADJOURNED INDEFINITELY [2.15pm]