AG2002/5810, Transcript of Proceedings [2002] AIRCTrans 4744 (27 November 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

AG2002/5810

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by the Australian Fisheries Management Authority
for certification of Australian Fisheries Management
Authority Certified Agreement 2002

CANBERRA

10.11 AM, WEDNESDAY, 13 NOVEMBER 2002

PN1

THE COMMISSIONER: Yes, can I have appearances, please?

PN2

MR P. SKEEN: Commissioner, I am appearing for the Australian Fisheries Management Authority.

PN3

THE COMMISSIONER: Thank you, Mr Skeen.

PN4

MR M. REYNOLDS: Commissioner, I appear with MR I. RYALL for the Community and Public Sector Union subject to serious concerns that we have that the Commission can be satisfied this agreement meets a no disadvantage test. We have had members request that we represent them under 170LK(4) and if the Commission is satisfied that it meets a no disadvantage test we will seek to be bound by this agreement.

PN5

THE COMMISSIONER: All right. Any problem with that, Mr Skeen?

PN6

MR SKEEN: No.

PN7

THE COMMISSIONER: No, thank you. Yes, go ahead, Mr Skeen.

PN8

MR SKEEN: Thank you. Commissioner, the application before the Commission is for the certification of agreement under section 170LK of the Act. The Australian Fisheries Management Authority believes that the statutory declarations set out the bases for certification and that they can stand on their own. However, I would like to draw your attention to several points. The first is attachment B to the statutory declarations, which is the notice of attention that was issued to employees. This notice complies with all the requirements of the Act, including the statement advising employees of their rights in terms of representations in meeting and conferring.

PN9

I would also draw your attention to attachment A of the statutory declarations, which demonstrates that approximately 80 per cent of eligible staff voted and approximately 70 per cent of those voted in favour of accepting the agreement, a clear majority. In terms of the no disadvantage test, in addition to the information contained in the statutory declaration I would like to point out that the majority of this agreement is very similar to the previous agreement that had been certified by the Commission. The 2002 agreement clarifies a few ambiguities that arose under the 2000 agreement and provides for a 10 per cent, minimum 10 per cent, pay increase across the life of this agreement subject to the meeting of certain organisational targets with regard to the implementation of project management.

PN10

The major change is the movement of the details of the individual rates of pay into a remuneration policy instead of these being contained within the agreement itself and the tie-in of part of the pay increase to the achievement of the organisational targets. This move to remuneration policy is an extension of the philosophy that was introduced in the 2000 agreement and is a practice that maximises the flexibility available to both staff and AFMA and one that seems to suit this authority and its staff. Given that the 10 per cent increase contained - actually contained within the agreement provides then for salaries that are 22 to 87 per cent above the award, and given the other advantages that the agreement offers, AFMA believes that the overall agreement passes the no disadvantage test and also believes that the majority of AFMA staff agree to this.

PN11

Overall, AFMA believes the agreement in front of you meets all the requirements of certification. Commissioner, apart from these points I would stand on the contents of the statutory declarations and I am prepared to answer any questions that you might have. Thank you.

PN12

THE COMMISSIONER: Right, thank you, Mr Skeen. Mr Reynolds?

PN13

MR REYNOLDS: Thank you, Commissioner. The agreement before you is nothing like the previous agreement, it does not have rates of pay in it. The agreement before you is most like the agreement that AFMA put to their staff previously, which voted against the agreement. Since that time the changes to the document which staff rejected were that the nominal end date, expiry date, set at 20 April 2005 now expires three years after certification. And that the corporate government target bonus is now $1000, not 2.2. per cent. So, for anyone over $49,000, then this agreement is less than the one they rejected. On that basis 20 more people - 20 more staff voted in favour of the agreement.

PN14

The agreement at clause 1.4 displaces the previous agreement applying at AFMA. And that agreement has rates of pay in it. Now, we have an agreement which displaces that agreement which has a 10 per cent increase over a three year period, but 10 per cent against nothing. So, we have an agreement which does not specify any rates. In addition to that, the remuneration policy talks about the - unless otherwise agreed - the salary increases and transition arrangements detailed at attachment A(1), (2) and attachment B will accrue between 2002 and 2005.

PN15

So, the flexibility that Mr Skeen was talking about is a capacity for downwards flexibility as well as upward flexibility. So, we have serious concerns, Commissioner, that you could be satisfied that this meets the no disadvantage test given that the salaries are not set and, according to their own document, could change to being below what is appropriate in the award. And certainly could disadvantage staff both actually and within the meaning of the no disadvantage test. The CPSU has raised that issue and a number of other issues in regard to conditions matters being in policy and able to be changed with the employer. The employer has not sought to make any variation to the agreement but we would be very concerned that a wages and conditions agreement could be certified without the wages component being contained in the agreement.

PN16

THE COMMISSIONER: Yes, Mr Skeen? Mr Skeen, would you like to respond to Mr Reynolds?

PN17

MR SKEEN: Sorry, Commissioner. We would argue, Commissioner, that although there is the potential for downwards as Mr Reynolds has stated, in the certified agreement in clause 1.5 we have put in the safeguards for staff. Whatever is set in this policy and the other policies can be only varied - can only be varied by agreement of the workplace bargaining team that negotiated this agreement and the policies and consists of staff representatives as well as management. It is very unlikely that the representatives or the workplace bargaining team would agree to any downward pressure.

PN18

I would say that the initial request to move the salaries into a policy was a staff request. By moving to a three - there was uncertainty about moving to a three year agreement and by tying it to the introduction of project management there was a concern that if it got halfway through the certified agreement and project management was no longer a viable - or was not appropriate to tie the targets to the pay increases against, that we would have the easy flexibility to modify those to the circumstances. It is certainly not the intention of AFMA to reduce salaries, these are what would be the bare minimum.

PN19

MR REYNOLDS: Commissioner, if I may?

PN20

THE COMMISSIONER: Yes, Mr Reynolds.

PN21

MR REYNOLDS: Several things. At clause 1.5 the second sentence clearly and explicitly states that these policies do not form part of this agreement. At clause 1.9 it is as Mr Skeen has indicated that the workplace bargaining team must agree, there is nowhere in this document which defines what the workplace bargaining team is or guarantees its composition throughout the life of this agreement. Mr Skeen has indicated now twice of the potential for downwards pressure. And whilst I agree that it is unlikely that the staff would want to have their wages reduced, that potential exists. So, we would question whether it can meet the no disadvantage test.

PN22

THE COMMISSIONER: Is the remuneration policy - it is not anywhere mentioned in the agreement except that it says the wages will be set in accordance with the remuneration policy. Is that all, Mr Skeen?

PN23

MR SKEEN: In 7.1 and 7.1(1) and - sorry, I just have to - - -

PN24

THE COMMISSIONER: But the remuneration policy does not form part of the agreement?

PN25

MR SKEEN: That is correct, Commissioner.

PN26

THE COMMISSIONER: Well, how can it work then?

PN27

MR SKEEN: Well, we believe that it works by the certified agreement, by referencing to it. Like the other policies that are involved, whether it be the relocation expenses or - - -

PN28

THE COMMISSIONER: Mr Skeen?

PN29

MR SKEEN: Yes.

PN30

THE COMMISSIONER: Is the Australian Fisheries Management Authority paid from consolidated revenue? I mean, do they pay their salaries out of government - public funds?

PN31

MR SKEEN: I believe our funding comes - it is partially from industry, levies and licensing fees - - -

PN32

THE COMMISSIONER: But through - - -

PN33

MR SKEEN: And partially through government - - -

PN34

THE COMMISSIONER: I mean, budget funded?

PN35

MR SKEEN: Partially budget funded.

PN36

THE COMMISSIONER: Well, has not the audit office got something to say about this?

PN37

MR SKEEN: I am not sure, Commissioner.

PN38

THE COMMISSIONER: Well, I just - unless things have changed since I had worked for the public service, you needed some legal instrument to pay people. And I do not think this actually provides it.

PN39

MR SKEEN: Okay. Well, we were certainly under the impression and gained some advice - - -

PN40

THE COMMISSIONER: You did?

PN41

MR SKEEN: - - - from DEWR that it was not a unreasonable bid that the reference in clause 7 of the certified agreement gave effect to that - to paying that against the policy. I guess it was - it was seen that it was not necessarily different to some of - where there has been facility clauses or reserve matters that provide for matters to be developed.

PN42

THE COMMISSIONER: True, true, and things have - but usually there is a basis that you move from and the basis is provided by a legal instrument which is the certified agreement. I mean, as far as I can see if I certify this agreement it does not actually empower the authority to pay anybody anything. Unless you get the power somewhere else I do not know how you are going to do it.

PN43

MR SKEEN: I guess all I can go back to Commissioner, clause 7, 7.1, the advice we had was that that allowed for that.

PN44

THE COMMISSIONER: But the remuneration policy is not part - it is not part of the agreement. It just, it refers to it.

PN45

MR SKEEN: Yes.

PN46

THE COMMISSIONER: It can be changed at any time and obviously changed by a few people who constitute the workplace bargaining group.

PN47

MR SKEEN: In consultation with staff. Clause 1.5 - - -

PN48

THE COMMISSIONER: Yes, but not even with vote by staff, just in consultation with staff. It is fairly unsafe, Mr Skeen, to tell you the truth. And I could not - I do not think I can do the no disadvantage test because as the remuneration policy does not form part of agreement I do not know what the wages and salaries of the staff are. So, I mean, I can - you can give me a statutory declaration that says that they are so many percentage points above the award but I do not know that.

PN49

MR SKEEN: Right.

PN50

THE COMMISSIONER: Because the agreement does not set their wages and salary. And I think that - I think that would appear to be Mr Reynolds' may point, is it, Mr Reynolds?

PN51

MR REYNOLDS: Yes, it is, Commissioner. Additional to that, obviously, would be the significant concern if the downwards pressure came.

PN52

THE COMMISSIONER: Yes.

PN53

MR REYNOLDS: And given that clause 1.5 explicitly states that the policies, including the remuneration policy, does not form part of this agreement. And even under the dispute resolution procedures the avenue for redress of that is by the largesse of the agency, which we would also have some concern about.

PN54

THE COMMISSIONER: Look, the concept of there being some sort of flexibility through the life of the agreement to do something with the remuneration does not concern me. However, I think you have got to have a legal basis before you start and then I can do a no disadvantage test against the minimum.

PN55

MR SKEEN: Right.

PN56

THE COMMISSIONER: Which may change but hopefully only if it goes downward in such a way that there would be some safeguard that it could not go downward to such an extent that it would not pass the no disadvantage test. That is what would concern me. I am prepared to adjourn the matter, if you want to take further advice to argue it further, Mr Skeen?

PN57

MR SKEEN: Could I ask, one thing that we did - I discussed with CPSU as a way of going through it was putting the minimum of each band level into the certified agreement and saying this is the minimum payment with the option of paying more as per the remuneration policy.

PN58

THE COMMISSIONER: That is fine with me if it is fine with the auditors. I do not know. I am happy to - so long as I have got something to do a no disadvantage test. If you fall foul of the auditor-general that is a matter for you. However, if you find that you cannot pay your staff because you do not have the legal authority to do it it might be a matter for a few other people as well.

PN59

MR SKEEN: I accept that, Commissioner.

PN60

THE COMMISSIONER: But that would concern me. I mean, as a public sector - well, a statutory authority you would need some legal basis to be able to pay your staff and if you do not have it you might have some difficulties. Unless you have got some other way of appropriating the funds. But in those days - in my day you needed something and this does not do it, if it overrides the award.

PN61

MR REYNOLDS: Commissioner, we are happy to sit down with the employer and work through these issues and have been attempting to do so, so if they are now willing to that would be useful. Now, one of the other things, if they have received advice that the document such as this is legal then we would appreciate receiving a copy of that advice.

PN62

THE COMMISSIONER: I would be interested in seeing it myself.

PN63

MR SKEEN: Sorry, it was verbal discussion.

PN64

THE COMMISSIONER: Verbal, was it? I think to move - it is a fairly radical move, Mr Skeen. I would want something in writing from the Attorney-General's Department. Not me. If I were you I would want something in writing from the Attorney-General's Department that says it works before I would be prepared to put people's salaries at that much risk. Do you want me to adjourn it? What do you want me to do, Mr Skeen?

PN65

MR SKEEN: If it is possible we would be quite - if the CPSU were prepared we would be quite happy to have - if it is acceptable to you, Commissioner, have read in the minimum of each band as the - - -

PN66

THE COMMISSIONER: I do not think it is going to work. It is going to change the document so radically I think there is going to be another vote. Whatever you do with the wages now it is going to have to go another vote. There is no two ways about it I am afraid.

PN67

MR SKEEN: I would seek an adjournment then and seek advice.

PN68

THE COMMISSIONER: Yes. Yes, I think you should seek some advice and I think - I am prepared to adjourn it, because if somebody wants to come and argue that, one, I can do the no disadvantage test on a document that does not include wages and conditions or, two, that this gives you the legal authority to pay it, which would concern me. Not that I think I would be entitled to not certify it on that basis, but you should be fairly concerned about that aspect of it from the point of view of the staff. I am surprised at the advice, but they may know something that has not occurred to me. I will adjourn it to a date to be fixed.

PN69

I ask that if you decide that you do not wish to go on with it, a letter asking for the matter - the agreement to be withdrawn would be the way to go. But if you get some advice that says it does work and I can do the no disadvantage test and you want to argue that then I will relist it at short notice. But I suggest you do talk to at least somebody from the Attorney-General's Department, whoever gives the Commonwealth their advice these days because I would be concerned about that advice, but it is not a matter for me. I do not believe I can do the no disadvantage test on the document as it currently stands. So the matter will be adjourned sine die.

ADJOURNED INDEFINITELY [10.28am]