AG2002/5, Transcript of Proceedings [2002] AIRCTrans 646 (1 March 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2002/5

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Cerebral Palsy Association of Western
Australia Limited and Another for certification
of the Cerebral Palsy Association of Western
Australia Limited - ALHMWU Enterprise Agreement
2002

PERTH

2.29 PM, THURSDAY, 14 FEBRUARY 2002

PN1

MR M. O'CONNOR: I appear on behalf of the Cerebral Palsy Association of Western Australia Limited.

PN2

MR J. WELCH: I appear on behalf the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN3

THE DEPUTY PRESIDENT: Who is going to take me through it?

PN4

MR O'CONNOR: I will, if it please the Commission, very briefly. This is an application as I indicated which was lodged by the employer but obviously it is an agreement made between the union and the employer. It is the outcome of quite considerable discussions and negotiations within the enterprise bargaining process involving an Enterprise Bargaining Committee as well as representatives of the union. The outcome of that negotiation is an agreement which seeks to replace the previous agreement covering the same group of employees, that agreement being 6008 or 2000. This agreement covers a fairly large number of employees who are covered otherwise by a number of State and Federal Awards and this agreement brings together all of those groups of employees under these conditions subject to their own awards or having regard to their own awards with these conditions sitting over the top of them.

PN5

One of the overriding conditions that will apply is the opportunity for these employees to salary package and that is a significant aspect of their remuneration under this agreement and it allows, notwithstanding the award conditions, the employees to receive a salary remuneration package in total significantly better as a package than the relevant awards. The Cerebral Palsy Association Limited is a constitutional corporation and it is able to negotiate agreements under this Division of the Act. So this is not in satisfaction of an industrial dispute as such but obviously is an agreement with the union.

PN6

A statutory declaration was lodged by the relevant officers, Mr Christopher Kumar who is here today and available to answer any questions about the content of his statutory declaration and also one has been compiled by the union. We believe that the information contained in those statutory declarations accurately reflects the situation of the parties and does discuss the basis and the method whereby this agreement was negotiated with the employees of Cerebral Palsy. It indicates the number of people involved and you will see I think that the employees were properly represented and had adequate opportunity to be involved in this process from start to finish.

PN7

As I said, the outcome was this agreement and we would ask the Commission to register this agreement today. I have been advised that there are a small number of clerical errors in the document which I think has been brought to my attention and which have been discussed with the union. Without interfering with the nature of the agreement we would request the Commission if the Commission is so disposed to allow those minor changes to be made to particular pages which I will address you on. The first one being on page 6 of the document under the clause 8: Redundancy, subclause (5), and I will hand up if I may a copy of the pages. It is a full document. The final pages are not signed but we would ask the Commission to allow us to replace those pages.

PN8

The pages to which I refer, in page 6 subclause (5) under: Severance Pay, there was a provision or reference there to subclause (2) of the same clause and I don't know how those words got in there but what I propose, and with the agreement of the union, is to take out reference to the words "subclause (2) hereof" and to simply let the words show:

PN9

In addition to the period of notice prescribed for ordinary termination and subject to further order the Commission and employee -

PN10

etcetera. In our view that will correct that, essentially is a clerical error and obviously the notice provisions will apply either under the Workplace Relations Act or the relevant State or Federal Award that would apply to the individuals. On page - - -

PN11

THE DEPUTY PRESIDENT: Just while you are on clause 8, Mr O'Connor, the interaction between this particular clause and section 170LM, you don't see any inconsistency?

PN12

MR O'CONNOR: Well, no. Not that I could pick up, sir. The notion was drawn to my attention. I understood that that was part of the clause that may have caused some concern.

PN13

THE DEPUTY PRESIDENT: So are you saying that section 170LM(1) - CM, I think it might be.

PN14

MR O'CONNOR: Might be CM, I think, sir, yes.

PN15

THE DEPUTY PRESIDENT: Yes, CM, 170CM, they will be the notice requirements that will be complied with, if not more, but in terms of any severance payments this clause operates.

PN16

MR O'CONNOR: Yes. That is separate.

PN17

THE DEPUTY PRESIDENT: I just think it needs to be made clear for the record that that is the intention.

PN18

MR O'CONNOR: Yes. Those severance payments are separate from any notice provisions.

PN19

THE DEPUTY PRESIDENT: Okay. Thank you.

PN20

MR O'CONNOR: I will indicate that I did find in having another double look at that page there were a couple of references to paragraph 1 where I think the correct terminology ought to have been "subclause (1)" on that page and I have made - - -

PN21

THE DEPUTY PRESIDENT: They correct it in this. Yes, you have.

PN22

MR O'CONNOR: Yes. So I don't think it does any mischief to the meaning of the clause and the other change, and I am grateful that it was drawn to our attention, on page 15 clause 15(7)(b), again unfortunately a clerical error where (b) refers to, "subject to subclause (10)", that ought to have been 9. I think we took out a subclause fairly late in the piece and didn't change that last subclause to 9. So the reference should be:

PN23

In the event of the employer withdrawing from salary packaging that the employees revert to a salary not less than under the award -

PN24

but the "subject to" is:

PN25

In the event that there is a withdrawal by the employer then the parties refer the matter to the Commission.

PN26

So, clearly, the reference should be to subclause (9) of that clause. From what we have been able to examine and with the best will of all of the parties they are the only errors that we were able to ascertain. We believe that this agreement does clearly meet the requirements of the parties. There was a substantial vote in favour of the agreement and we would ask that you register this agreement according to its terms and that would presumably be from the first pay period on or after today's date. Unless you have any further questions, sir, that is all I have.

PN27

THE DEPUTY PRESIDENT: Just one question I have, and it has probably been entered somewhere in there, on page 13 the rates, 1 August 2002, $8 or $10 per week. I gather that is somehow or other covered, what it would be.

PN28

MR O'CONNOR: Yes. It perhaps is one of those things that the parties rights in the full knowledge that they know what they are talking about but an outsider may not, so that under wage adjustments on the previous page 3 the employees under this agreement who are in receipt of this salary remuneration packaging shall be entitled to a wage increase of $20 or $22 per week during the life of the agreement to bring their rates up to the relevant award rate so that there are some people that are currently on rates that are $20 or $22 under the award rate but their packaging is giving them a much superior package.

PN29

The agreement is that over the life of the agreement we will bring them up to the full award rate together with this package - so some people in the second component in August 2002, depending on where they sit, will get the 8 or the 10. So the parties clearly understand the intentions of it but when I read it when it was drawn to my attention the other day I could see that perhaps some further clarification for the record may have been appropriate, but I think the parties clearly understood that that is the intention and I don't think there is any ambiguity from their point of view in any event.

PN30

THE DEPUTY PRESIDENT: As long as you are both clear and you are not up here arguing about who is entitled to what at a later date.

PN31

MR O'CONNOR: Yes. I appreciate that, sir. That is all that I have to say. Thank you, sir.

PN32

THE DEPUTY PRESIDENT: Thanks, Mr O'Connor. Mr Welch, have you got anything to add?

PN33

MR WELCH: Deputy President, simply to say that we would concur with the points raised and addressed by Mr O'Connor. There has been discussion between the parties to iron out the small administrative wrinkles that had crept into the agreement. The agreement is a matter of consent and we would say that we believe that it has met the requirements of the Workplace Relations Act as detailed by the applicant and we would request that the agreement be certified and operative from today's date. Thank you.

PN34

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Welch. With the changes, which are typographical changes, in the documents I am of the view that this application conforms with the requirements of the Act and I will so certify the agreement based on what has been put this afternoon supported by the statutory declarations and the content of the agreements themselves. There is nothing in those agreements that has either prohibited for inclusion in agreements and the content of the agreements have been progressed with the procedures and time requirements required by the Act.

PN35

I would just ask in passing to both of you that it is not my intention, it is the second agreement this afternoon where there has been, not with these parties but with other parties, a series of typographical errors that make somewhat of a nonsense of the provisions of the agreement, particularly where there is cross-references to other provisions in the agreement or in the other matter in other awards.

PN36

So I would just put on notice I guess that it won't be our intention, and it certainly won't be my intention, to go through and check all that sort of documentation and cross-referencing, etcetera, in agreements of this nature in the future. I will simply request and require the parties to go back through the processes, laborious and time consuming though they may find them to be, however I will certify the agreement and the terms sought as amended this afternoon and issue the paperwork in due course with effect on and from today's date, I take it, gentlemen?

PN37

MR O'CONNOR: Yes. Perhaps the first pay period on or after today if that is appropriate.

PN38

THE DEPUTY PRESIDENT: The first pay period commencing on or after today's date. Thanks, Mr O'Connor. This matter is now adjourned.

ADJOURNED INDEFINITELY [2.43pm]