AG2002/4835, Transcript of Proceedings [2002] AIRCTrans 5000 (12 December 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BARTEL

AG2002/4835

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LS of the Act
by District Council of Loxton Waikerie and
Another re District Council of Loxton Waikerie
Enterprise Bargaining Agreement No 4 2002
agreement about industrial dispute (Division 3)

ADELAIDE

11.10 AM, THURSDAY, 28 NOVEMBER 2002

PN1

THE COMMISSIONER: Thank you, I will take appearances please.

PN2

MR E. GRUE: I appear on behalf of the Australian Workers' Union.

PN3

THE COMMISSIONER: Thanks, Mr Grue.

PN4

MS L. JAMES: I appear for the District Council of Loxton Waikerie.

PN5

THE COMMISSIONER: Yes, thank you.

PN6

MR GRUE: Commissioner, with this matter there is an issue that probably has to be addressed first and that is the fact that it is out of time and I understand approximately 3 months out of time. There are particular reasons why that has occurred. There have been ongoing discussions between the union and this particular Council in relation to the hot weather and inclement policy and the exact meaning of that policy and letters have been written, one by the union and one also by the Council and I would seek to provide them to the Commission today.

PN7

THE COMMISSIONER: Yes, thank you. Yes, you have copies of these, Ms James?

PN8

MS JAMES: Yes, I do.

PN9

THE COMMISSIONER: Yes. I will mark these.

EXHIBIT #AWU1 CORRESPONDENCE FROM MR BERGERMEISTER THE DISTRICT MANAGER ADDRESSED TO WHOM IT MAY CONCERN DATED 31/10/2002

EXHIBIT #AWU2 CORRESPONDENCE FROM AUSTRALIAN WORKERS' UNION, JOHN O'NEILL, ADDRESSED TO THE COMMISSION AND DATED 05/11/2002

PN10

THE COMMISSIONER: Yes, thank you, Mr Grue.

PN11

MR GRUE: Those letters, basically, explain why there has been some debate as to the meaning of the particular clauses dealing with inclement weather and the reason why this agreement has not come before the Commission in that time. I'm advised that the make-up of the workforce has not significantly changed and, in fact, I understand it has not changed at all since the vote was actually taken and on that basis we would seek an extension of time pursuant to section 111(1)(o) of the Act, Commissioner.

PN12

THE COMMISSIONER: Yes, thank you.

PN13

MR GRUE: Other than that - - -

PN14

THE COMMISSIONER: Sorry, these matters, the hot weather and inclement weather clauses, are they contained within this agreement?

PN15

MR GRUE: They are, Commissioner, exactly which clause they are I'm not aware of off the top of my head. Perhaps my friend could - - -

PN16

MS JAMES: I think those, Commissioner, just mention what the controversial part of the clause was. It is the hot weather clause. It is clause 9.11.

PN17

THE COMMISSIONER: Yes.

PN18

MS JAMES: The agreement itself has actually been numbered in quite a strange way but, anyway, it is clause 9.11.

PN19

THE COMMISSIONER: Yes, I have found page 7.

PN20

MS JAMES: The actual wording was really about 11.2:

PN21

The general conditions relating to employees in inclement weather, are as prescribed in Council's adopted policy and procedures.

PN22

So that was the part that they really wanted to be totally clear on from the employees point of view prior to agreeing to the agreement, so it is not actually the wording of the clause per se in the agreement, but it is what is sitting behind the clause to do with the policy, which of course is the wearing of I guess the most controversial matter was the wearing of protective clothing.

PN23

THE COMMISSIONER: Yes. All right. Thank you, Ms James. Yes, Mr Grue.

PN24

MR GRUE: Other than that particular matter I'm not aware of any other changes. The agreement does provide for two wage increases, but perhaps my friend could speak to any other changes that are in this agreement from the previous agreement. A statutory declaration has been provided by Mr O'Neill and we do believe that the statutory requirements have been met and on that basis we would seek certification of the agreement, Commissioner.

PN25

THE COMMISSIONER: Thank you.

PN26

MS JAMES: Yes, Commissioner, as discussed that is quite a big change, that 9.11 with the hot weather. It simply was just a three liner in the previous agreement that just said:

PN27

Supervisors would take account of inclement weather and advise the employees accordingly whether they were to work.

PN28

This sets out a more formal process of actually providing productive work, or perhaps conducting training to ensure that productivity continues while there is hot weather, rather than just taking time off. The only other change in this agreement, it is simply a roll-over again, except for 9.13. Once again, that salary sacrificing clause now appears in the enterprise agreement.

PN29

I note too though that it talks about - in the dispute settlement clause it talks about a Board of Reference, as specified in the Local Government Employees Award. That does not actually - it is the wrong reference to - well, it should not be referred to the award, it should be referring to the Federal Act. There is no such Board of Reference that could be constituted under this particular award, it is a State Award.

PN30

Once again it is a mirror of the previous agreement, it is just a matter of going to an old agreement and bringing these old conditions forward. That should really be as specified in the Workplace Relations Act 1996. Apart from that though I can confirm that there is no change to the size and nature of the workforce, since that vote was conducted. Accordingly, we seek that you certify the agreement this morning and we believe it meets the requirements of the Act, apart from being out of time. May it please the Commission.

PN31

THE COMMISSIONER: Thank you. Look, I will amend clause 13.4 in the terms that Ms James suggested, unless there is any problem with that.

PN32

MR GRUE: No problem, Commissioner.

PN33

THE COMMISSIONER: All right, thank you. Yes, I have before me an application pursuant to division 3 of the Workplace Relations Act for certification of the District Council of Loxton Waikerie Enterprise Bargaining Agreement No 4 of 2002. I am satisfied that the negotiation, approval and substance of the agreement meets the statutory requirements necessary for certification. In particular, I'm satisfied that the agreement passes the no disadvantage test, contains dispute resolution procedures and procedures for the re-negotiation of the agreement, operates for a period within the maximum prescribed by the Act, was approved by a valid majority of employees who genuinely supported the agreement.

PN34

I note that while the agreement was filed significantly outside the 21-day time limit prescribed under the Act, I am satisfied on the basis of the submissions of the parties and the documents that have been tendered that the delay was for the purposes of clarifying the operation of matters relevant to the operation of the enterprise agreement and also that the constitution of the workforce has not substantially changed in that time. I will therefore certify the agreement pursuant to section 170LT of the Act. The extension of time pursuant to section 111(1)(r) is granted and the certification of the agreement will be as amended by agreement of the parties today in terms of clause 13.4. In the first paragraph the words:

PN35

In the Local Government Employees SA Award.

PN36

Will be deleted and replaced with the words:

PN37

The Workplace Relations Act 1996.

PN38

That amendment is made pursuant to section 111(1)(s) of the Act. I therefore certify the agreement pursuant to section 170LT of the Act. The agreement will be binding on the parties set out in the agreement in the parties bound clause. The agreement will operate from 1 July 2002 and have a nominal expiry date of 30 June 2004. The certificate will be issued to the parties in due course. Thank you.

ADJOURNED INDEFINITELY [11.16am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 CORRESPONDENCE FROM MR BERGERMEISTER THE DISTRICT MANAGER ADDRESSED TO WHOM IT MAY CONCERN DATED 31/10/2002 PN10
EXHIBIT #AWU2 CORRESPONDENCE FROM AUSTRALIAN WORKERS' UNION, JOHN O'NEILL, ADDRESSED TO THE COMMISSION AND DATED 05/11/2002 PN10