AG2002/5445, Transcript of Proceedings [2002] AIRCTrans 4505 (15 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

AG2002/5445

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Quirindi District Adult & Community
Education Inc and Another for certification
of the Quirindi & District Adult & Community
Education Inc 2002 Certified Agreement

SYDNEY

9.36 AM, TUESDAY, 29 OCTOBER 2002

Adjourned sine die

THESE PROCEEDINGS WERE CONDUCTED BY TELECONFERENCE IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, could I have the names of the people who appear this morning?

PN2

MR M.C. GRIEVE: Yes, it's me, Michael Craig Grieve.

PN3

THE SENIOR DEPUTY PRESIDENT: On behalf of the Quirindi ACE.

PN4

MR GRIEVE: That's it.

PN5

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Grieve, we will proceed to deal with the application. The first thing we will deal with is the section 170XF application, the nominated award, you are aware of what I am talking about, aren't you?

PN6

MR GRIEVE: Yes, I am.

PN7

THE SENIOR DEPUTY PRESIDENT: I note that the application has been made in relation to the PACT award and that's satisfactory but on reading the replies you gave my associate with regard to comparisons with the tutors, I realise that there's in fact another award to them which you have described as the New South Wales ACE Tutor State Award 1999 and, of course, it should also be nominated as one of the awards to be designated by the Commission because it's against that award that the no disadvantage test for the tutors would be applied.

PN8

MR GRIEVE: Even though the PACT award covers rates for tutors as well?

PN9

THE SENIOR DEPUTY PRESIDENT: Does it?

PN10

MR GRIEVE: Yes. That's why the PACT award was used, because it encompassed not only tutors but administration staff as well.

PN11

THE SENIOR DEPUTY PRESIDENT: I see. The tutors award, of course, only is tutors.

PN12

MR GRIEVE: That's right.

PN13

THE SENIOR DEPUTY PRESIDENT: Are you in a position to say that the rates for the tutors at Quirindi are as good as or better than the PACT award rates in that award that you have nominated?

PN14

MR GRIEVE: Yes, they are.

PN15

THE SENIOR DEPUTY PRESIDENT: Very well, in that case I will leave the application as it stands. It's just that you referred to that New South Wales tutors award when you were giving me details of the comparative rates so I thought it was a relevant award.

PN16

MR GRIEVE: No, I am just doing that to give you some sort of range of comparison.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes. That being the case then I am prepared to determine that the PACT award is the relevant award for the purposes of the no disadvantage test and a determination to that effect will issue in due course. We can now turn to the agreement itself. You have filed the statutory declaration and my associate has been in touch with you to raise with you a number of items of detail I suppose we could call them that needed to be attended to.

PN18

MR GRIEVE: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: What I propose to do is just go through them so that they appear on the record on the assumption that they are all satisfactory and, of course, I have seen them already and we can proceed to certify the agreement. The first one was the name of the employee who made the statutory declaration on behalf of the employees, of course it was yourself.

PN20

MR GRIEVE: Yes, sorry about that.

PN21

THE SENIOR DEPUTY PRESIDENT: What is the answer to paragraph 3.4 of the declaration, how is the association incorporated? You have advised me that it is incorporated under the Associations Incorporation Act 1994, document No N 1043274, Lodgment Unit 10013173102.

PN22

MR GRIEVE: That's right, that came straight off our incorporation certificate.

PN23

THE SENIOR DEPUTY PRESIDENT: Fine, that's exactly what I wanted, that clears that up. The next query that was raised was comparisons made with the award and the statement in the email says there is no provision for overtime. Is that in the award or in the agreement?

PN24

MR GRIEVE: It's in the agreement. In the agreement it says time off in lieu of overtime, so I think what you were saying was that the award does give you provision for overtime but the agreement only gives you time off in lieu.

PN25

THE SENIOR DEPUTY PRESIDENT: And that's the fact, is it?

PN26

MR GRIEVE: Yes.

PN27

THE SENIOR DEPUTY PRESIDENT: So that's a matter which I have to take into account when comparing the over-all benefits of the agreement with the award.

PN28

MR GRIEVE: Yes.

PN29

THE SENIOR DEPUTY PRESIDENT: Does that apply both to yourself as an administrative official and the tutors?

PN30

MR GRIEVE: The tutors it wouldn't apply to because they are only employed on a casual basis for no more than a three-hour or five-hour period of time.

PN31

THE SENIOR DEPUTY PRESIDENT: So it's only you who is a possibility for it.

PN32

MR GRIEVE: Yes, that's right.

PN33

THE SENIOR DEPUTY PRESIDENT: Now, the next query was how is clause 7, ordinary hours of 26 per week, reconciled with clause 10 which requires work up to 35 hours per week before even time off in lieu?

PN34

MR GRIEVE: Yes, that was actually a mistake on my part. When I customised the agreement from Tamworth with our education certified agreement, I had to replace a lot of wording that was relative to the Tamworth agreement and that was just something I missed. It should have been 26 hours instead of 35 hours.

PN35

THE SENIOR DEPUTY PRESIDENT: I see, it works that way.

PN36

MR GRIEVE: Yes.

PN37

THE SENIOR DEPUTY PRESIDENT: Well, that solves that problem, I will note that as being something that has been said formally on behalf of the Institute. Clause 11, sick leave is only five days for you, the award probably gives more but, of course, your explanation of that is that there is no full-time employee in the organisation and this five days is a pro rata arrangement based on your 26 hours.

PN38

MR GRIEVE: That's right.

PN39

THE SENIOR DEPUTY PRESIDENT: Can I have an undertaking, and I appreciate you may think this is almost a waste of time but it is necessary, that if you employ someone full time they would get normal sick leave?

PN40

MR GRIEVE: As per the award?

PN41

THE SENIOR DEPUTY PRESIDENT: As per the award.

PN42

MR GRIEVE: Yes, I will give you that undertaking.

PN43

THE SENIOR DEPUTY PRESIDENT: I hope the organisation grows big enough that you can do that.

PN44

MR GRIEVE: Me too. It might take a bit of rallying on a political level but anyway - - -

PN45

THE SENIOR DEPUTY PRESIDENT: That's right. As part of that, there being no accumulation of sick leave, you rely on the fact that the current rate of pay of $20 a week is higher than the administrative officer grade 5, which is the appropriate comparison in the award, which is $17.10 per hour.

PN46

MR GRIEVE: Yes, I do.

PN47

THE SENIOR DEPUTY PRESIDENT: As you say in your response, you believe this increase provides some balance to the loss of sick pay provisions. Can you recall whether the Tamworth agreement is similar in this regard?

PN48

MR GRIEVE: It is exactly the same.

PN49

THE SENIOR DEPUTY PRESIDENT: I see, well, that is helpful. I have to note again and take it into balance that there is no redundancy provision in the agreement. There is in the award.

PN50

MR GRIEVE: I couldn't see any redundancy provision in the award either, so I went through it pretty thoroughly and there's no reference to it in the index or in any of the sections under the relevant heading.

PN51

THE SENIOR DEPUTY PRESIDENT: It's not referred to as severance pay, is it?

PN52

MR GRIEVE: Well, there is a severance pay section in there but it didn't mention redundancy.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, clause 11 mentions redundancy. This is the award that started as the Victorian PACT award, isn't it?

PN54

MR GRIEVE: Yes, it did.

PN55

THE SENIOR DEPUTY PRESIDENT: Clause 11 provides for redundancy.

PN56

MR GRIEVE: Dispute resolution procedure, is that it?

PN57

THE SENIOR DEPUTY PRESIDENT: No, it's actually redundancy.

PN58

MR GRIEVE: What page are you on?

PN59

THE SENIOR DEPUTY PRESIDENT: Page 9 of 32 in this particular version. The versions come out differently at different times.

PN60

MR GRIEVE: I have page 9, notice of termination, wage and related matters - - -

PN61

THE SENIOR DEPUTY PRESIDENT: You may have an older version of the award.

PN62

MR GRIEVE: Or you may; this one was printed off from the AIRC web site and as I mentioned in the email to Steven, there was a change in the title of the award, it was updated to replace the wording Professional Accounting, Computing and Technical Staff Award to now be Professional Administrative, Clerical, Computing and Technical Staff Award, with a different code.

PN63

THE SENIOR DEPUTY PRESIDENT: What is the code?

PN64

MR GRIEVE: The code of the most recent award I have is 766738. I have listed that on the email.

PN65

THE SENIOR DEPUTY PRESIDENT: That's the one I have.

PN66

MR GRIEVE: Is it, well, that's the one I have too, I'm pretty sure.

PN67

THE SENIOR DEPUTY PRESIDENT: The one I have was issued in its present form on 6 December 2000 by Commissioner Lewin.

PN68

MR GRIEVE: Well, I've got Melbourne, 28 July, 1999, so mine must be an older one.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, it's obviously the same award but it has been reformatted, as we say, but clause 11 of the award in front of me does provide for redundancy, it provides for a maximum of 10 weeks severance pay.

PN70

MR GRIEVE: Well, my copy doesn't mention that as far as I can see. My clause 11 is the title of dispute resolution procedure and there's no wording referring to redundancy as far as I can see.

PN71

THE SENIOR DEPUTY PRESIDENT: The award that was issued in December 2000 as communication, consultation and dispute resolution, clause 8 as consulting mechanism and procedures, so it would be found there. What's happened is that in the period in which you got the award you have, the copy you have, and the one I have, the Commissioner issued a decision on the simplification of the award, you have probably heard of the simplification process, on 14 September 1999.

PN72

MR GRIEVE: Yes, well, I only downloaded this last week and I spoke to the staff members there and they sort of gave me all the right prompts and the right codes and everything to download it, so whether they don't actually have an updated version on the web site, that could be the reason.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, we will investigate that, but it does mean that I should take it into account. I will leave that and come back to it. The only other question that I need to raise is that I asked for more detail than is in the statutory declaration as to the ways in which tutors became aware of and understood the agreement. Can you just give me a brief on that?

PN74

MR GRIEVE: Yes, I just provided our core group of regular tutors, they would have been six in total, with copies of the agreement at least two weeks prior to sending the agreement off originally with the statutory declarations and at that time they were informed that this was the new certified agreement that would be relevant to their employment conditions and they were asked to read and consider the details of the agreement and come back to me with any concerns or feedback or additions that they may have. They were all physically given a copy, no one was sent one in the mail, and I didn't receive any concerns or feedback about it.

PN75

THE SENIOR DEPUTY PRESIDENT: Very well.

PN76

MR GRIEVE: The unique thing with this organisation is that our tutors are normally only employed per term. Our courses change every term, normally we have new tutors every term, so it's hard to get a core group of tutors that would be a good core group to have, you know, a consistent fit with employment conditions.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, that's not unusual with these organisations in any event. Just going back to redundancy for the moment, your agreement does provide for redundancy but in a fashion that doesn't quite make sense. I presume you have copied it from the Tamworth one, it's clause 22 of your agreement.

PN78

MR GRIEVE: Yes, it's pretty brief, isn't it.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, it is, and I'm not aware of the Act actually providing for redundancy payments.

PN80

MR GRIEVE: I noted that in your email, that you said there is no provision for redundancy payments in the Workplace Relations Act and, as I said, I have just sort of taken that from Tamworth, assuming that there was, and I haven't a copy of the Workplace Relations Act to check that, so I don't know what we would do in this case.

PN81

THE SENIOR DEPUTY PRESIDENT: What you can do is undertake that clause 22 will be applied in accordance with provisions of the New South Wales Act in that regard.

PN82

MR GRIEVE: The New South Wales Workplace Relations Act?

PN83

THE SENIOR DEPUTY PRESIDENT: Well, no, that's not its name. Just a minute, I will see if I can find the name. No, I can't quickly put my hands on a copy of the New South Wales Act, it's not something we carry around with us as it were, but what would satisfy me would be if clause 22 were to be administered as though it referred to the New South Wales redundancy registration, and leave it at that.

PN84

MR GRIEVE: OK, so it refers to the New South Wales legislation.

PN85

THE SENIOR DEPUTY PRESIDENT: That's not varying the agreement, it is saying how that will be applied, so there's no need to do anything more than that.

PN86

MR GRIEVE: I will just note that on the agreement.

PN87

THE SENIOR DEPUTY PRESIDENT: That's right, yes, not to vary the agreement, don't scratch anything out, just put a note on your copy of the agreement, because the certified agreement that will come from this office will not have any reference to that. What we will do is have the transcript prepared and issued to you and that will be the record of this arrangement and indeed it will give you the record of all the other things that have been raised this morning.

PN88

MR GRIEVE: Then I just adjust my copy of the agreement according to the transcript.

PN89

THE SENIOR DEPUTY PRESIDENT: By way of a note. I think that completes everything and I can proceed to make my decision.

PN90

This is an application by Quirindi & District Adult & Community Education Incorporated and Another for certification of an agreement made under section 170LK of the Workplace Relations Act 1996. The agreement is to be known as the Quirindi & District Adult & Community Education Inc 2003 Certified Agreement.

PN91

On the basis of the statutory declarations filed herein and on the information supplied by Mr Grieve at the hearing today I am satisfied of the following, that the agreement relates to the whole of a single business, that the employer is a constitutional corporation for the purposes of division 2 of part VIB of the Act, that the communication and explanation of the terms of the agreement was appropriate and met the requirements of the Act.

PN92

The notice given by the employer stated that any persons potentially subject to the agreement, a member of an organisation of employees entitled to represent that employee could ask the organisation to represent them and no such request was made. A valid majority of persons employed at the time have genuinely made the agreement. There is a dispute settling procedure in clause 20. The nominal date of expiry of the agreement, 6 October 20005, is not more than three years after the date on which the agreement would come into operation. There are no reasons set out in section 170LU of the Act why the Commission must refuse to certify the agreement.

PN93

Finally, the agreement satisfies the requirements of the no disadvantage test expressed in section 170XA of the Act. I reach this last conclusion on the basis of the statutory declaration, the information supplied this morning by Mr Grieve on behalf of the Institute and the undertakings given in its regard. The application is granted with effect from today, 29 October 2002. Formal certification will issue in due course.

ADJOURNED INDEFINITELY [9.57am]