AG2001/8258, Transcript of Proceedings [2002] AIRCTrans 560 (26 February 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

AG2001/8258

WESLEY MISSION SUPPORTED EMPLOYMENT
BUSINESS SERVICES CERTIFIED AGREEMENT 2001

Application under section 170XF of the Act
by Uniting Church in Australia Property Trust
(NSW) for determination of designated award
for certified agreement

AG2001/8259

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Uniting Church in Australia Property
Trust (NSW) for certification of the Wesley
Mission Supported Employment Business Services
Certified Agreement 2001

SYDNEY

3.06 PM, WEDNESDAY, 6 FEBRUARY 2002

Hearing continuing

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, could I have the appearances, please?

PN2

MR P. AMOS: If it please the Commission, I act as agent for Wesley Mission. With me I have MR G. HARRIS, HR Manager of Wesley Mission and MR D. RAFFERTY also of Wesley Mission and employees of the organisation.

PN3

MS J. TAVERNA: May it please the Commission, I am from the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch. I have with me today a union delegate by the name of MR G. HORDER from one of the sites, may it please.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes?

PN5

MR AMOS: Thank you, your Honour. Your Honour, this is an application for the certification of an agreement known as the Wesley Mission Supported Employment Business Services Certified Agreement 2001. The application is under section 170LK division 2 of the Workplace Relations Act 1996 for the certification of an agreement between the employer and the employees.

PN6

All relevant documents required by the Commission for the making of an agreement were forwarded to the Commission with the application. Those documents included an application for the determination of a designated award or awards for the purpose of a certified agreement. I'm not quite sure whether you want me to deal with that at this point in time or do it concurrently with the agreement.

PN7

THE SENIOR DEPUTY PRESIDENT: Concurrently, thank you.

PN8

MR AMOS: Thank you, your Honour. The agreement document, four copies of the agreement signed by the organisation of employee representatives and a statutory declaration were signed by Mr David Anthony Rafferty, the Centre Manager of Wesley Mission. Your Honour, the negotiation of the agreement commenced in 2001 between the company and all employees of the company acting as individuals and the ALHMU representing a member.

PN9

The initial consultation negotiation was conducted with the employees and support staff of the organisation. The union conferred with the company on a number of occasions with minor wording changes the outcome. The support workers played an integral part in the education and awareness process of employees which was to convey to all employees an understanding of the terms and conditions of employment contained in the agreement.

PN10

The content of the agreement formalises and consolidates the terms and conditions already enjoyed by employees into one complete document. Those terms and conditions of employment have been in place and accepted by employees of the company for many years. It is our view the education and awareness training associated with the making of the agreement helped to reinforce the employees understanding and acceptance of the agreement of the existing employment conditions. The agreement also formalises the wage assessment process and creates an environment which enables employees to easily determine their career paths.

PN11

The organisation has always met its obligations to provide terms and conditions of employment to employees and in particular those employees with a disability comparable to the terms and conditions enjoyed by employees without a disability and covered by an award. In making the agreement, many employees will receive immediate wage increases of varying percentages with the likelihood of further wage increases to employees following a complete skills audit assessment of the employees provided for in paragraph one of schedule C of the agreement.

PN12

For the certification of the agreement, we would rely on precedences already established by the Commission in similar situations and I refer to your Honour's decisions AG2001/1449, Roytal Enterprise Limited and Others, AG2001/2429 Summill and House Supported Employees Enterprise Agreement and his Honour, Senior Deputy President Kaufman's decision in AG2001/5372, Lasercraft Australia Limited Supported Employees Workplace Agreement 2001. There are a number of other recent similar decisions in this Commission, those being Fairhaven Services Limited, the Sunnyfield Association, the House With No Steps Queensland Region and Summerland House.

PN13

The agreement will operate for a period of two years from the date of certification and I refer to clause 1.7 date and period of operation which will allow the company during this period to refocus on providing a more detailed and comprehensive competency and productivity based wage structure and assessment process for determining wages. The process will meet the requirements of the Federal Department of Family and Community Services Business Services Reform Agenda which is contained in standard nine and I'll read that standard to you. It's entitled Employment Conditions:

PN14

Each person with a disability enjoys working conditions comparable to those of the general workforce which requires an organisation to provide wages and conditions in accord with a ratified legal industrial agreement and consistent with the Workplace Relations Act 1996 pro rata award wages in accord with either a legally ratified or legally recognised assessment tool. The structure will be linked to the acquisition of past related competencies, vocational related competencies and output competencies.

PN15

The rates of pay contained in this agreement and I refer to clause 4.1 remuneration in schedule A, have been established taking into consideration the following criteria. The rates of pay paid to employees prior to the agreement. The organisation will pay employees at the most appropriate rate relevant to their pre-agreement rate, capability and skill mix having regard to the fact that no employee shall be paid less under the agreement than they would have been paid prior to the making of the agreement, the productivity of employees with a disability, the maintenance of current and future employment levels of people with a disability, the inherent obligation of the organisation to provide employment for people with a disability no matter how severe the disability may be or how productive or non productive the employee may be, the wage structure contained in the designated award and the continued operation of the commercially viable business.

PN16

The agreement provides for wage increases during the life of the agreement in accordance with the national wage case decision, any national wage case decision as determined or granted by the Australian Industrial Relations Commission from time to time and I refer to clause 4.2 cost of living increases. The agreement at clause 7.1 avoidance of disputes and grievance procedure provides a mechanism for settling disputes and grievances with employees. The object of the procedure and the primary function is to promote a resolution of issues and disagreements through consultation, co-operation and discussion between employees or employee representatives in-house.

PN17

The procedure also requires either party if all avenues of resolution have been exhausted to refer the matter to the Australian Industrial Relations Commission for conciliation and finally arbitration. The agreement does not disadvantage employees on balance with the terms and conditions and a determination of wages under the supported wage system contained in the designated award. The minimum rate paid to employees under the award is 15 per cent of an award wage. A similar percentage is attributable to the minimum rate under this agreement also.

PN18

The statutory declaration provided with the application meets all the requirements of the act for making of an agreement and at clause 5.1 specifies the steps taken by the employer to give all employees whose employment would be subject to the agreement reasonable opportunity to decide whether they wish to make the agreement. Clause 5.9 sets out the process undertaken by the organisation to meet and confer with the union at the request of an employee member.

PN19

At clause 5.10, the statutory declaration specified the steps taken by the employer to explain the terms of the agreement to the employees subject to it under section 170LK(7). At clause 5.1(1), the statutory declaration specified the appropriate process undertaken to explain to employees the terms of the agreement having regard to the person's particular circumstances and needs. At clause 5.1 the statutory declaration proclaimed the majority of employees covered by the agreement wanted to make the agreement.

PN20

That voting was 82 for the agreement and 10 against the agreement. We would ask the Commission to exercise its powers pursuant to section 170LT(3) of the Workplace Relations Act 1996 and certify the agreement known as Wesley Mission Supported Employment Certified Agreement 2001. This will ensure the continued commercial viability or the organisation and enable the organisation to provide continued and future employment to all people with a disability.

PN21

I can give you an overview of Wesley Mission if you like, your Honour, but this organisation is no different from many other organisations that have done similar agreements and I put before the Commission have been certified by the Commission in the past.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Taverna, I understand you wish to be bound by the agreement should it be approved but you wish to oppose its certification?

PN23

MS TAVERNA: Yes, that's correct, your Honour. Firstly, may I apologise for not being here when you came onto the bench this afternoon. Secondly, I understand, of course, that you would have received our correspondence faxed through earlier today and I'm sorry for the late notice of that.

PN24

THE SENIOR DEPUTY PRESIDENT: On what grounds do you oppose certification?

PN25

MS TAVERNA: We oppose certification on a number of grounds. Firstly, it's the union's submission that the statutory requirements contained in section 170LK of the act have not been complied with. Secondly, we oppose certification on the basis that in the union's submission the no disadvantage test is not satisfied. Alternatively, if the Commission was to find that the no disadvantage test is not satisfied, however, that there was in fact some public interest in having the agreement certified today, we would wish to make submissions saying that there is in fact no public interest criteria by which the agreement should be certified and they're the grounds upon which we oppose certification.

PN26

THE SENIOR DEPUTY PRESIDENT: Is this correspondence your first notification to Mr Amos of the grounds of your objection to certification?

PN27

MS TAVERNA: No, it's not, your Honour. I have if it assists two affidavits one of which I have provided to the other side some time ago and one which I have provided to them just this afternoon so if I could seek to rely on those.

PN28

THE SENIOR DEPUTY PRESIDENT: Not at the moment, I think. These are affidavits on which you would require cross-examination, Mr Amos?

PN29

MR AMOS: Your Honour, having regard to the people that actually submitted the affidavit, I would be reluctant to cross-examine but if we went down that path, I would certainly ask that your Honour ask the relevant questions of the people rather than have me cross-examine. I don't feel that it's appropriate to put a person with a - - -

PN30

THE SENIOR DEPUTY PRESIDENT: But you wish to press the application?

PN31

MR AMOS: I oppose the application.

PN32

THE SENIOR DEPUTY PRESIDENT: No, I mean, you wish to press your application for certification?

PN33

MR AMOS: Yes, I do. I'm sorry, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. All I'm intending to indicate is that if these matters are to be fully ventilated, then I don't think it can be given proper attention this afternoon.

PN35

MR AMOS: Well, there are few issues that we really need to deal with. Firstly, the letter that was submitted by the union, I received this afternoon, that is the letter to your Honour requesting to be bound under section 170M. I'm not quite sure what section the union are requesting to intervene under but certainly if they want to be bound by the agreement, then the section that they must be looking at is section 43(2).

PN36

If they're looking at section 43(2), then the Commission is only able to hear matters in relation to whether the Commission will issue an order for them to be bound or not be bound by the agreement. No other evidence is relevant in this matter and I refer to Deputy President Duncan's decision in the matter of Endeavour Industries, matter No C20908 of 2000. If it pleases the Commission, I will read the relevant sections of a transcript of that matter which will throw a bit of light on the situation.

PN37

In this particular case, the union sought to be bound by the agreement under section 170M and made application under section 43(2) to intervene in the matter. His Honour said:

PN38

Yes, indeed, Mr Wilkie, that's quite correct. You appreciate, of course, that the only thing I can hear you on is the question of whether or not you should be bound.

PN39

Mr Wilkie replied: "Yes, your Honour". Then I went on to make my submission in regard to that. Further on in the transcript, Mr Wilkie said:

PN40

Your Honour, in relation to the union's application for leave to become a party bound on behalf of its member in relation to the certification of the agreement, the union has written authorities from our members to act and appear in relation to certification of this agreement pursuant to section 170LK(4). The authorisations were signed by our members prior to the agreement being made on 24 February. We would say that the issue was dealt with in the Full Bench's decision.

PN41

His Honour said, "Of your union and the Marvic Hotels?".

PN42

Mr Wilkie:

PN43

That's correct, your Honour, where the Full Bench is of the opinion that any entitlement of a person as to represent an organisation to represent a person and the consequent entitlement of the organisation to be given a reasonable opportunity to meet and confer with the employer ceases when the agreement is made. We would say we have our authority. Our authority in relation to this matter was signed by our members prior to the agreement being made.

PN44

and his Honour went on to say:

PN45

But, of course, it expires as such when the agreement is made.

PN46

Mr Wilkie said:

PN47

Yes, your Honour, and the employer was put on notice prior to the meeting of the 17th by our Regional Secretary in Newcastle, Carmel Cook, saying that the union had a number of issues and concerns in relation to the body of this proposed agreement.

PN48

His Honour went on to say:

PN49

But I can only hear you on the question of whether you'll be bound or not. I can't hear you on anything else.

PN50

So his Honour, Deputy President Duncan, has concluded that section 43(2) only allows the Commission to hear matters relevant to parties bound by the agreement under section 170M. So we would say that we have no objections to the union being bound by the agreement and we're quite happy to have the union bound but in other matters regarding the content of the agreement, the agreement has been negotiated with the employees.

PN51

The employees have voted on the agreement. The union had ample opportunity during the process to meet and confer. In fact, there were a number of letters, correspondence between both parties regarding the content of the agreement. The agreement was adjusted in accordance with many of those issues raised by the union and the agreement went on to be voted on and accepted by the employees.

PN52

In relation to the submission and the reasons for the intervention today, I received notification just before I walked in the door on the grounds why they were intervening. I had no idea. The letter that I received this morning had no indication what the grounds were and that's the letter that was sent to yourself. There was no issue of grounds on that. I certainly haven't seen anything prior to today.

PN53

THE SENIOR DEPUTY PRESIDENT: Ms Taverna, do you wish to press your application?

PN54

MS TAVERNA: Yes, we do, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: You've heard what issues Mr Amos has raised. They will be matters that you'll be expected to answer. The grounds on which you seek, the basis on which you seek to intervene and put these arguments must be a matter you give consideration to prior to the matter being heard.

PN56

MS TAVERNA: Thank you, your Honour, if I may address them now if it's convenient?

PN57

THE SENIOR DEPUTY PRESIDENT: No, it's not. I didn't know that this matter was going to be opposed either and I haven't allocated sufficient time for that. Had I know it was a disputed matter, I would have given it a day. Mr Amos, what's your first available day? I can give you Tuesday the 19th or Friday the 22nd.

PN58

MR AMOS: Tuesday the 19th is acceptable.

PN59

THE SENIOR DEPUTY PRESIDENT: Ms Taverna?

PN60

MS TAVERNA: That's suitable, your Honour, Tuesday the 19th.

PN61

THE SENIOR DEPUTY PRESIDENT: I think you should detail the grounds of your application and the basis on which you seek intervention. Do you say, Mr Amos, that the Commission can't grant leave on the basis of wider considerations in relation to matters of this kind?

PN62

MR AMOS: That's what I'm saying, your Honour. Section 170M, specially 170M(2) refers to an organisation of employees seeking to be bound by an agreement under division 2.

PN63

THE SENIOR DEPUTY PRESIDENT: I think in Coffs Harbour Challenge the union representative was there as agent personally for a particular employee, was he not? As a personal representative?

PN64

MR AMOS: He intervened under section 42(3).

PN65

THE SENIOR DEPUTY PRESIDENT: Not 43(2)?

PN66

MR AMOS: Not 43(2), no, that is correct.

PN67

THE SENIOR DEPUTY PRESIDENT: All I'm saying to you is I think it would be useful depending on the basis on which Ms Taverna notifies you that you should prepare yourself on the substance of the matters so that you're not taken by surprise and you should, I think, detail the grounds on which you make your application, the grounds of your objection as well, I think at least by close of business on the 14th.

PN68

MS TAVERNA: Yes, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: Is that sufficient time for you, Mr Amos?

PN70

MR AMOS: It is, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: If it gives you any difficulty, then you can notify my chambers and we can extend the date for hearing.

PN72

MR AMOS: Your Honour, at the hearing on the 19th, are we hearing the matter of the certification of the agreement or are we hearing the matter of the order for intervention?

PN73

THE SENIOR DEPUTY PRESIDENT: Both. I'll hear it and then I'll hear the application for certification. I might reserve or not reserve depending on what the arguments are but I'll hear the lot. 10 o'clock on the 19th.

ADJOURNED UNTIL TUESDAY, 19 FEBRUARY 2002 [3.27pm]