AG2002/6362, Transcript of Proceedings [2002] AIRCTrans 5227 (30 December 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT1078
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2002/6362

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by VicRoads and Others for certification of
VicRoads EB4

MELBOURNE

2.40 PM, WEDNESDAY, 11 DECEMBER 2002

PN1

MR E. HENDERSON: I appear on behalf of VicRoads.

PN2

MR N. HENDERSON: I appear for the Australian Services Union.

PN3

MR T. O'LOUGHLIN: I appear on behalf of the APESMA.

PN4

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN5

MR W. TOWNSEND: I appear on behalf of the Community and Public Sector Union.

PN6

MR C. PANDOLFO: I appear on behalf of the AMWU.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Henderson?

PN8

MR E. HENDERSON: Again, I might presume to go first, but point out that this is a joint application of all the parties.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR E. HENDERSON: While statutory declarations have been provided in relation to each of the - sorry, from each of the parties in relation to the requirements of section 170LT and other matters, I will put on the transcript that it is our view that the agreement passes the no disadvantage test; that it has been approved by a valid majority of persons employed at the time whose employment will be subject to the agreement, and those statistics are appended to the - each of the statutory declarations. 67 per cent of staff voted, and of those, 88 per cent voted positively, so that is 59 per cent absolute. I think a clear result.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. I noted that in the declaration that is attached to the file.

PN12

MR E. HENDERSON: We have provided an explanation of the terms of the agreement in appropriate terms to satisfy all sections of our workforce, and the agreement does include, at clause 5 from recollection, provisions for the settlement of - sorry. That is clause 6. Provision for the settlement of disputes and procedures in relation to the agreement. It also includes a nominal expiry date three years from 20 December this year. If I could further go on to submit that in a short conference before the proceedings it has come to my attention that the unions will seek seven days in order to check, particularly attachment B to the enterprise agreement. I don't understand that there are any questions or disputes in relation to the agreement document itself, or in relation to attachment A.

PN13

THE SENIOR DEPUTY PRESIDENT: A being the wage rates.

PN14

MR E. HENDERSON: Being the salary of tables.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR E. HENDERSON: However, attachment B is a document that was produced as the - at the end of a long process of consultation between the parties, again designed to apply at agreement level those principles which apply at award level. That is, that the document is expressed in plain English, easy to understand in structure and content, and does not contain provisions that are obsolete or need updating. As previously reported, that consultation phrase concluded in the middle of this year, and as this matter has been brought on at short notice, the parties are seeking to check that no unintended errors have been introduced into the draft orders. And VicRoads will not oppose a seven day period for that check to occur.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Just before you - you have resumed your seat. There are a couple of questions. I am a little concerned about clause 3.2 that provides:

PN18

The agreement shall operate from 20 December 2002 for three years, or until it is replaced.

PN19

Under the Act, of course, an agreement can't operate for more than three years. It must have a nominal - it must specify a nominal expiry date that is not more than three years after the date that it comes into operation. I would seek from each of the parties an assurance the words "or until it is replaced" are intended to operate only within that three year period. It is not intended to suggest that the agreement is to operate for longer than three years. Is that your position, Mr Henderson?

PN20

MR E. HENDERSON: I would be happy for - on VicRoads behalf to consent that the relevant clause reads that:

PN21

The agreement shall operate from 20 December 2002 for three years, unless it is replaced within this period.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes. That is what those words mean. Yes.

PN23

MR E. HENDERSON: That is the intent of VicRoads in this matter.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. And the common - in clause 5.2 there is a reference to appendix B, and that is the matter that you want seven days to look at, as I understand it. Does that enable those common - that common conditions agreement to be varied during the life of the agreement, does it?

PN25

MR E. HENDERSON: There is a further provision at clause 42 of EB4, the main document.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR E. HENDERSON: That is a statement of intent.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. I have seen that.

PN29

MR E. HENDERSON: That the parties do intend to further review, to continue the exercise, of maintaining the relevance of that attachment, and to conduct a further review of the provisions within the common conditions and - - -

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. What is concerning me is, what is it that the employees voted on? Did they vote on attachment B as it currently is, or was it - was attachment B not before them? Did they vote on an agreement that allows the employer and the unions to alter those clauses during the life of the agreement, which does raise some questions that - in itself.

PN31

MR E. HENDERSON: Okay. The employees did vote on the EB4, including clause 42, that had that, if you like intention that the parties would again consult with each other to review the terms of the common conditions agreement. Secondly, the attachment B was made available to all staff. It wasn't included with the ballot paper because of its bulk, but it has been made available to all staff in both hard copy and electronic form. And it is my understanding that any staff who had any questions in relation to attachment B have had those satisfactorily answered. If I can go further, to suggest that clause 42 is intended by the parties to be an enabling facility to allow the parties to come back to vary the terms of agreement before this Commission, and in no other way vary them.

PN32

THE SENIOR DEPUTY PRESIDENT: Well, it doesn't need the Commission, does it? It just allows the parties to vary attachment B.

PN33

MR E. HENDERSON: It is the intention of VicRoads that any variation to the certified agreement would be returned to the Commission for further certification, as a variation.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. It is not so - well, do I understand you to say that any variations agreed between the parties, being the unions and VicRoads, would be voted on and brought back to the Commission as a variation to the agreement?

PN35

MR E. HENDERSON: Okay. I am being given the references. There is 170MD.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. So that process would be adopted. So to all intents and purposes the appendix forms part of the agreement.

PN37

MR E. HENDERSON: That is our intention, that it forms part of the agreement, and that variations would be subject to the requirements of the Act, under 170MD, as I am advised.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. And appendix B was available to all employees at the time they voted on it?

PN39

MR E. HENDERSON: Correct.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you.

PN41

MR N. HENDERSON: Your Honour, the ASU supports the application to certify the agreement, and relies on the statutory declaration of Wendy McManus filed with the Commission.

PN42

THE SENIOR DEPUTY PRESIDENT: All of the statutory declarations are in identical terms really, aren't they?

PN43

MR N. HENDERSON: They are, your Honour. Yes. So I have read the statutory declaration and it seems correct to me.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR N. HENDERSON: And so, unless your Honour has picked something up, but I think it is correct.

PN46

THE SENIOR DEPUTY PRESIDENT: No, I have - but I only read one of them, and - - -

PN47

MR N. HENDERSON: Yes.

PN48

THE SENIOR DEPUTY PRESIDENT: - - - glanced at the others.

PN49

MR N. HENDERSON: Yes. Mr Henderson from VicRoads fixed all that. But we are obviously satisfied, otherwise - - -

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR N. HENDERSON: - - - we wouldn't be - Ms McManus wouldn't have signed it. In relation to the agreement and the matters raised by your Honour earlier, the union gives its undertaking that clause 3.2 is to be interpreted so that the agreement has a nominal life of no more than three years. And agrees with the observations made by VicRoads. Similarly, in relation to clause 42, it certainly was our understanding that the common conditions are a part of this agreement. And that continues a practice adopted in earlier agreements, so it wasn't a novel matter. And, from our point of view, it was always our intention that any variations would need to be processed in accordance with the Act, and subject to further voting and certification by the Commission.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR N. HENDERSON: So that - we would seek an order certifying the agreement to come into force from 20 December this year and remain in force for a period of three years.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr O'Loughlin.

PN55

MR O'LOUGHLIN: If the Commission pleases, your Honour, having been party to these negotiations that perhaps I will make a few comments in support of the certification, subject to the time to check the agreement. First of all there, similarly the Association gives it assurances regarding the period of operation of the agreement that it shall be for three years from the date of 20 September, unless replaced earlier by a subsequent agreement. I just basically support the submissions of Mr Henderson in relation - well, both the Hendersons, in relation to the common conditions agreement.

PN56

It has been my experience, having been involved with a number of these - well, basically all of the enterprise agreements at VicRoads, that the common conditions has always been reviewed. And once finalised, has been attached to the subsequent enterprise agreement which has gone before the staff for their approval. The only other matter I would like to perhaps draw upon, Commission, is clause 6.6 in the avoidance of industrial disputes, to put before you that it is certainly, from the negotiations on our behalf, our clear understanding that there is the provision for the Commission to arbitrate in relation to the matters contained in the agreement.

PN57

THE SENIOR DEPUTY PRESIDENT: That is how I read the clause, I must say.

PN58

MR O'LOUGHLIN: And we would certainly want that notified for the transcript. But other than that, Commissioner, similarly we would support the certification of the agreement, to operate from 20 December 2002.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr O'Loughlin. Mr Winter?

PN60

MR WINTER: Yes. Well, I would support the submissions put forward by the other unions, and I - but one issue that wasn't raised, which I would like to - again to raise was the issue of attachment B known as the common conditions. Again, like in the previous matter, this is basically a new document, and we would like to have the seven days in relation to the checking of this document.

PN61

THE SENIOR DEPUTY PRESIDENT: Well, you do have it, because you have more than that, because the agreement will not be certified until - - -

PN62

MR WINTER: Until 20 December.

PN63

THE SENIOR DEPUTY PRESIDENT: - - - 20 December.

PN64

MR WINTER: As the Commission pleases.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Townsend?

PN66

MR TOWNSEND: Your Honour, the CPSU supports the ratification of the agreement.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. And Mr Pandolfo?

PN68

MR PANDOLFO: Thank you. The AMWU also supports the certification of the agreement, and supports the submissions made by the other parties.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Yes, we will just go off the record for a moment, please.

OFF THE RECORD

PN70

THE SENIOR DEPUTY PRESIDENT: Very well, I am satisfied that the requirements of the Act have been met. I have read the agreement and first of the statutory declarations, all of which, I am told, are in identical terms. I am satisfied that the agreement is about matters pertaining to the requisite relationship between an employer in Victoria carrying on a single business and its employees, who will be subject to the agreement. I am also satisfied that each of the unions has at least one member employed in the single business to which the agreement relates and that each union is entitled to represent the industrial interests of its member.

PN71

I am also satisfied that the agreement passes the no disadvantage test that was made in accordance with section 170LJ and approved by a valid majority of relevant employees, that the explanation of its terms was appropriate, that it includes procedures for preventing and settling disputes and that it specifies three years from the date of certification, as the nominal expiry date and that is not more than three years after the date on which it comes into operation, and that, in particular, having been elaborated upon during the proceedings today. I am satisfied that there are no reasons in section 170LU as to why I should refuse to certify the agreement.

PN72

Accordingly, the agreement will be certified on 20 December 2002, to operate in accordance with its terms. That does give to the parties, an opportunity to notify me if there is something in the document that has escaped them. That will require a further re-listing of the matter to see where we go from there. If I haven't heard from anybody to the contrary, the agreement will be certified on 20 December. Thank you for your attendance.

ADJOURNED INDEFINITELY [2.59pm]