AG2002/4794, Transcript of Proceedings [2002] AIRCTrans 4635 (18 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/4794

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LS of the Act
by Australian Workers Union and Another re
City of Port Adelaide Enfield and Australian
Worker's Union Enterprise Agreement No 5 of
2002 agreement about industrial dispute
(Division 3)

ADELAIDE

2.51 PM, WEDNESDAY, 6 NOVEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon, can I have some appearances please.

PN2

MR F. MATEOS: I appear on behalf of the Australian Workers' Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mateos.

PN4

MR M. STRAWBRIDGE: I represent the City of Port Adelaide, Enfield.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Strawbridge. Mr Mateos?

PN6

MR MATEOS: Yes sir. The Australian Workers' Union has made applications to section 170LS of the Workplace Relations Act '96 for certification of the Port Adelaide, Enfield AWU Enterprise Agreement. a statutory declaration was made by myself, lodged with the Commission which confirms that the agreement satisfies the requirement of the Act. All 172 employees covered by this agreement were consulted during the development of the agreement sent through regular meetings and notices. I was involved in the meetings and involved in also all parts, in the consultative committee.

PN7

All the employees are fully aware of the implication of the agreement and the majority of employees voted to accept the agreement on 20 September. The agreement offers a 4 per cent up front pay increase plus a 3 per cent next year plus another 1 per cent if we meet 85 per cent of our productivity target plus another 3 per cent plus another 1 per cent if we meet our 85 per cent of our productivity targets. There is also another 1 per cent bonus which is not going on the base rate if we meet certain sick leave and safety targets.

PN8

The agreement has an operating period of 36 months with an operative date of 3 September this year. We confirm the agreement does not disadvantage the employee in relation to the award. The union is satisfied that the requirements of the Act have been met and accordingly seek certification of the agreement from today's date. I would be happy to answer any questions that the Commission wishes.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mateos. You will need to answer a number of questions I've got about the agreement including running a refresher course for me on the calculation of the wage rates. We will get to that in a moment.

PN10

MR MATEOS: Yes sir.

PN11

THE SENIOR DEPUTY PRESIDENT: One immediate issue that I have for you goes to the extent to which I can be confident that the nine persons from a non-English speaking background, the two Aboriginal or Torres Strait Islanders, and the disabled person, together with the part-time employee were able to participate fully in the discussions which both explained the agreement and led to its endorsement.

PN12

MR MATEOS: Sir, with the people from the non-English speaking background, they have, they come from a non-English speaking background, they are fluent in English. I, coming from a non-English speaking background myself, went through pains to explain the agreement and what it all meant to all those employees. The person with a disability is not a - it is a physical handicap, sir, it is not - an understanding, so he fully understood the agreement and part-time employees were there when they were also invited to attend all the meetings and were at - when the agreement was explained to them, sir.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Strawbridge?

PN14

MR STRAWBRIDGE: Sir, in recommending that you accept and endorse this agreement, the council is satisfied that we have an agreement that suits our needs and also offers high degrees of flexibility but also recognises the cooperation and the willingness of our staff to become involved in schemes that we have in place which recognise productivity gains and links those gains to salary increases. It was breaking new ground when this was introduced three agreements ago and we have attempted to continue that culture and I believe we have. In making these comments to it I would also like to commend both Mr Mateos and our staff for the way the negotiations were handled. We had a very amicable period of negotiation and we were both working towards what we feel was an acceptable outcome for everybody and we believe we have got that.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Strawbridge. Now, Mr Strawbridge I'm going to address the questions that I've got in relation to the agreement to Mr Mateos so please feel free to jump up and answer them yourself if you believe you are better placed to do so or indeed wish to comment. I should advise you that my questions are not designed to stop the process of certification but they rather reflect my desire to ask questions now rather than regret that I didn't ask them at a later stage and finally I should say that my questions are not directed at trying to change the content of the agreement.

PN16

The employees voted on a document and I intend that that document is the one that I consider so I'm not proposing changes to it but I am interested in the intention of the parties as to how they will apply a number of clauses. Mr Mateos, can I refer you firstly to page 19, clause 13? This relates to allowances and can I simply clarify my understanding of subclause (a) so that there is a disability allowance of $20 per week which replaces those various allowances prescribed in the awards, in the Award listed below that. It is not a case where an allowance of up to $20 a week is paid, it is an actual $20 per week payment.

PN17

MR MATEOS: Yes sir, $20 per week is added into the employees' hourly rate.

PN18

THE SENIOR DEPUTY PRESIDENT: And is that $20 incorporated in the rates contained in attachment 2 - attachment 4?

PN19

MR MATEOS: Yes sir, it is an all purpose allowance which would be included in the rates.

PN20

THE SENIOR DEPUTY PRESIDENT: Clause 22 on page 32 relates to sick and accident cover and the second paragraph talks of the policy being negotiated with council's insurance broker and details of the policy will be provided to all AWU employees. Can I take it that that reference to all AWA employees means all employees covered by this agreement, irrespective of whether they are members of the AWU?

PN21

MR MATEOS: Yes sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN23

MR MATEOS: It is not really that much an issue though, we haven't any people that aren't members, but - it does cover everybody, other than the employees that are there from the labour hire companies.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. Clause 23, on page 33 relates to ongoing employment and the first paragraph talks about informing the union and their members of the nature of changes being considered, at the earliest opportunity, can I take it that the union's intention is that all employees covered by this agreement would be informed of any changes - - -

PN25

MR MATEOS: Yes sir.

PN26

THE SENIOR DEPUTY PRESIDENT: - - - irrespective of their membership of the AWU?

PN27

MR MATEOS: That is correct sir.

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Strawbridge, can you confirm that to be your intention too?

PN29

MR STRAWBRIDGE: Yes, yes now I can.

PN30

THE SENIOR DEPUTY PRESIDENT: Clause 26 on page 39. Is it the intention that local area workplace agreements would be certified in the Commission?

PN31

MR MATEOS: No sir, our intention is that this is a facilitative clause within the agreement and that once our local work area agreement is agreed to would be - come into force by an exchange of letters between the parties.

PN32

THE SENIOR DEPUTY PRESIDENT: Clause 29 on page 42, and in particular the reference to attachment 1 in subparagraph (b), or attachment 1, references the Municipal Employee Grade 8. Should I take it that the parties have agreed that that Grade 8 Employee is synonymous with a leading worker?

PN33

MR MATEOS: Yes, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 32, but in particular to page 49, which is the very long clause relating to Work Team Productivity. In particular, to 2.6 at the bottom of that page 49. Can you tell me about the AWU Performance Indicator Committee.

PN35

MR MATEOS: The AWU is just a hangover when we used to call it, but the Performance Indicator Committee is a Committee of equal numbers of management and employee representatives. The union is actually not a party to that agreement which identified the performance indicators and I think there is representative from Council on there as well, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: That Committee, presumably, produces a written record of any conclusions it reaches relevant to measurement methods?

PN37

MR MATEOS: Yes, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN39

MR MATEOS: Just to clarify, the reason why the AWU is in it, is they have two Committees, one is what we call the "inside staff" the ASU Committee, and the AWU is the "outside staff", it just distinguishes the two different groups of workers at Council.

PN40

THE SENIOR DEPUTY PRESIDENT: I see, thank you. I think you have answered a question that I had at clause 33 on page 53, such that the reference to AWU staff representatives is not restricted to AWU members, but to employees rather who are covered by this agreement.

PN41

MR MATEOS: Yes, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 34. As I foreshadowed, you might need to run a refresher course for me. I can clearly appreciate the first salary adjustment outlined in that clause, but I'm just wondering whether you can confirm to me how you see the second salary adjustment operating?

PN43

MR MATEOS: Well, the first 3 per cent is a guaranteed increase, sir, and the second 1 per cent is, as I said in the beginning, was that if we meet 85 per cent of the performance target the further 1 per cent, but 3 per cent is guaranteed.

PN44

THE SENIOR DEPUTY PRESIDENT: I see.

PN45

MR MATEOS: And might I add also, sir, that during the life of the agreement we have never actually not met the 1 per cent.

PN46

THE SENIOR DEPUTY PRESIDENT: Then, in terms of the third salary adjustment the 3 per cent is again guaranteed.

PN47

MR MATEOS: Yes, sir.

PN48

THE SENIOR DEPUTY PRESIDENT: And the further 1 per cent is dependent upon achieving the 85 per cent?

PN49

MR MATEOS: Yes, sir.

PN50

THE SENIOR DEPUTY PRESIDENT: If you didn't reach the 85 per cent for the period 1 July 2002 to 30 June 2003, is it conceivable that you would then be asking, or expecting 2 per cent the following year in the event that you did achieve those targets?

PN51

MR MATEOS: That is not the intent of the agreement, sir. I guess, if we didn't achieve the 85 per cent in the first one and we did achieve it in the second one, we would only be getting the 1 per cent, sir.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 37 on page 59 and to the last sentence in that clause which reads:

PN53

During the life of the agreement if salary rates drop below official CPI rates, employee wages will be adjusted accordingly following negotiation between the AWU and the Council.

PN54

MR MATEOS: I guess - - -

PN55

THE SENIOR DEPUTY PRESIDENT: I'm just wondering whether you might explain the intention behind that provision?

PN56

MR MATEOS: Well, the intention was, sir, is that if at one stage the agreement only provides a 4 per cent increase and CPI falls at 4.5, we can - it does not mean they have to give it to us - but we can begin negotiations to try and get some more money, sir.

PN57

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Strawbridge, you agree with that summation of that clause?

PN58

MR STRAWBRIDGE: Yes, sir, I do. I believe that it gives the staff some re-assurance and if you look at some of the early negotiations we had in the nineties with enterprise agreements there was always some trepidation from the staff about locking themselves into these agreements and that clause, I think, gives the staff you know some assurance that they're not going to be left behind if the economic picture changes, so we are quite happy with that.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you. A final question, Mr Mateos, goes to attachment 4. I think to a significant extent you have answered that with your refresher course, but I understand then that the series of salaries set out beneath the date of September 2003, will only apply in the event that that 85 per cent of the performance targets is achieved?

PN60

MR MATEOS: Yes, sir.

PN61

THE SENIOR DEPUTY PRESIDENT: And if they are not, then those - then only a 3 per cent increase on the September 2002 figures would apply?

PN62

MR MATEOS: Yes, sir.

PN63

THE SENIOR DEPUTY PRESIDENT: And all of those rates incorporate the $20 disability payment?

PN64

MR MATEOS: Yes, sir, they incorporate the allowances.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mateos. Mr Strawbridge, my questions don't occasion you the need to make any further statement, do they?

PN66

MR STRAWBRIDGE: No, sir, I think my colleague has covered all of those answers adequately.

PN67

THE SENIOR DEPUTY PRESIDENT: He has done well, has he?

PN68

MR STRAWBRIDGE: He has done very well. I'm glad he copped them.

PN69

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the statutory declarations, together with the information provided to me today, I am satisfied that the agreement was reached through a process consistent with the requirements of the Act so that employees were able to make an informed choice to vote in favour of this document. I am satisfied the agreement itself meets the requirements of the no disadvantage test. It is of a duration envisaged by the Act. It contains the necessary dispute resolution provisions and it does not contain provisions which are contrary to the Act.

PN70

I have had particular regard to the undertakings given to me by the parties that the references to the "AWU" in the agreement are not discriminatory and simply refer to all of the employees who are covered by the agreement, irrespective, of whether those employees are, or remain a member of a union. On this basis I propose to certify the agreement with effect from today. The certificate will be prepared and forwarded to the parties over the next few days. I trust that the agreement operates to benefit both the employees and the employer and that whilst you do have a dispute resolution procedure, you don't need to use it. I adjourn the matter on that basis.

ADJOURNED INDEFINITELY [3.11pm]