AG2002/6363, Transcript of Proceedings [2003] AIRCTrans 11 (6 January 2003)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT1120

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2002/6363

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Australian Liquor, Hospitality and Miscellaneous
Workers Union - Victorian Branch and Another
for certification of the Chubb Security Australia Pty
Ltd (Chubb Protective Services)/Australian Liquor,
Hospitality and Miscellaneous Workers' Union
Aviation Security Certified
Agreement 2002

MELBOURNE

11.08 AM, FRIDAY, 13 DECEMBER 2002

PN1

MS V. ILIAS: I appear on behalf of the LHMWU.

PN2

MS S. MOORE: I seek leave to appear on behalf of Chubb Security Australia Pty Ltd, trading as Chubb Protective Services.

PN3

THE COMMISSIONER: I take it there is no objection.

PN4

MS ILIAS: No, Commissioner.

PN5

THE COMMISSIONER: Leave is granted. Thank you. Yes, go ahead, Ms Ilias.

PN6

MS ILIAS: Thank you Commissioner. This is an application pursuant to division 2, part VIB of the Workplace Relations Act to certify an agreement to be know as the Chubb Security Australia Pty Ltd (Chubb Protective Services)/Australian Liquor, Hospitality and Miscellaneous Workers' Union Aviation Security Certified Agreement 2002. The agreement was made pursuant to section 170LJ of the Act between the LHMU and Chubb Security Australia Pty Ltd. Statutory declarations have been filed in support of the application by Mr Daly for the LHMU and by Mr Greg Watson for the company which sets out the information and requirements for certification in accordance with the Act.

PN7

The agreement was approved by the valid majority of employees to be covered by this agreement on 21 November 2002. Set out at 6.1 and 6.1 to 6.8 of the statutory declarations is steps taken to provide employees and explanation of the terms of the agreement and that each employee was provided with access to a copy of the agreement at least 14 days before being asked to vote on the agreement. The agreement contains a dispute procedure at clause 13 of the agreement. It is the submission of the LHMU the provisions of the Act and the Commission's rules have been satisfied for certification of the agreement and accordingly we seek the certification of this agreement to operate in accordance with its terms with effect from today's date, Commissioner.

PN8

THE COMMISSIONER: Thank you. Yes, Ms Moore. Do you wish to add anything to that?

PN9

MS MOORE: No, Commissioner. Not unless you have any specific questions.

PN10

THE COMMISSIONER: Just to understand a couple of things about the agreement if I could. Perhaps I don't see it, but I am not quite sure how the dates for the subsequent increases prescribed in clause 7.3 are prescribed. Perhaps you can just draw my attention to that.

PN11

MS ILIAS: Yes, Commissioner. My understanding of the way that the wage increases are to - - -

PN12

THE COMMISSIONER: Well, is it in the agreement? That is the question.

PN13

MS ILIAS: Sorry.

PN14

MS MOORE: Commissioner, yes, at clause 7.1 you will see that the wage increases provided by subclauses 7.2 and 7. 3 - - -

PN15

THE COMMISSIONER: I see - the safety net review date.

PN16

MS MOORE: Yes, Commissioner.

PN17

THE COMMISSIONER: Yes, sorry. I beg your pardon. I had overlooked that. As for the voluntary additional hours in clause 11, this matter has been the subject of some correspondence between my office and the company in relation to other agreements. Are you aware of that?

PN18

MS MOORE: Commissioner, which particular agreements would you be speaking of? Would that be the Toyota - no - - -

PN19

THE COMMISSIONER: Well, no - well, do you mean the Chubb Toyota agreement or - - -

PN20

MS MOORE: Yes, although - sorry, I didn't - - -

PN21

THE COMMISSIONER: Yes, it may have been that. I have been absent on long leave for three months so I can't recall precisely what the agreements were, but - yes - Cricket Ground Agreement, I am informed was another one. And I think there - - -

PN22

MS MOORE: Yes.

PN23

THE COMMISSIONER: - - - were some adjustments effected as a result of those transactions and I am not sure whether they are reflected in this agreement.

PN24

MS MOORE: I think, Commissioner, if I recall the question that you had at the time - it was about - and please tell me if I am wrong - it was about the maximum number of voluntary additional hours an employee could work.

PN25

THE COMMISSIONER: I think it was also superannuation and also obligation - employer obligation.

PN26

MS MOORE: In terms - well, in terms of the maximum number of voluntary additional hours, that is addressed at clause 11.11 - - -

PN27

THE COMMISSIONER: I saw that.

PN28

MS MOORE: Yes.

PN29

THE COMMISSIONER: Is that the number that was ultimately settled upon?

PN30

MS MOORE: I will just take instructions on that, Commissioner. Commissioner, I am sorry, I haven't got the paperwork in front of me as to the maximum number of hours and the previous agreement to which you are referring, but in terms of the 24 hour maximum, that was an agreement that was reached between Chubb and the union to take account of the fact that employees worked 12 hour shifts and also that the roster period is of a longer cycle so that - and putting a maximum of 24 hours it allows employees to work up to two additional shifts but that is then taken into account in terms of the remainder of the roster. They would be in - have up to ten days off over their rostered cycle.

PN31

THE COMMISSIONER: Sorry, just taking you through this. I understand the first part. Where is the part that provides for the time off?

PN32

MS MOORE: Sorry, Commissioner, I am not with you?

PN33

THE COMMISSIONER: I understand the first part. I don't understand why you have chosen 24 as the number and that is prescribed as the term of the agreement, could you draw my attention to those terms of the agreement that provide for the subsequent number of days off?

PN34

MS MOORE: In terms of that, Commissioner, the clause in the agreement which refers to rosters is the subsequent clause - clause 12 which provides for a rostered cycle for a longer duration than a 28 consecutive day period. Now, I am not sure that there was any agreement reached as to how many days an employee - and in fact I am sure there wasn't agreement reached as to how many days.

PN35

THE COMMISSIONER: Well I think the short answer is, that the matter that you have mentioned as mitigation of the term that provides for 24 hours of voluntary additional hours per week is not actually prescribed by the agreement.

PN36

MS MOORE: The 24 hours was prescribed. Nothing else was prescribed.

PN37

THE COMMISSIONER: Yes, but what you mentioned it was the - in mitigation of that being a potential scenario each week has a legal effect of the agreement, that is, that it is mitigated by some sort of roster which provides relief.

PN38

MS MOORE: Having said that, Commissioner, it must be also remembered that these are voluntary hours that the employee is working these over and above their set roster and my - - -

PN39

THE COMMISSIONER: I understand that. I addressed that matter in the correspondence I had with the company about the other agreements. But you appreciate it surely, that the effect of the certification of this agreement without any terms mitigating that provision is that those apparently voluntary additional hours could be worked in such a way that an employee works seven days a week continuously and that the consequence of that is that for that work their remuneration is 15 per cent of the ordinary hourly rate, or the loaded rate.

PN40

MS MOORE: Yes. It is actually - it does incorporate an additional one twelfth for - - -

PN41

THE COMMISSIONER: Yes.

PN42

MS MOORE: - - - payment of annual leave plus the Aviation security allowance.

PN43

THE COMMISSIONER: But that is really just a cashing out of an annual leave entitlement, isn't it.

PN44

MS MOORE: Yes. I appreciate what you are saying, Commissioner, but I would have to say that these hours are worked over and above the roster which is set some considerable time in advance so - - -

PN45

THE COMMISSIONER: But that doesn't really address the point - - -

PN46

MS MOORE: No.

PN47

THE COMMISSIONER: - - - does it? That the legal effect of the agreement is that employees may work a significant number of these voluntary additional hours each week consistently throughout the year.

PN48

MS MOORE: Yes, but having said that, Commissioner, Chubb is very aware of occupational health and safety requirements.

PN49

THE COMMISSIONER: Yes, I appreciate that, but what I am required to do is certify the term of the agreement rather - not the company's awareness unless there is some sort of undertaking which has statutory force. I have to read the agreement in terms of the legal effects that it creates. That is why I have to certify.

PN50

MS MOORE: Yes, I hear what you are saying.

PN51

THE COMMISSIONER: And as I say, this matter was the subject of some communication between myself and the company and I ultimately settled upon a position which provided the voluntary additional hours in some other certified agreements, but I suggest that it might be appropriate to re-visit this subject in some correspondence. I think a reading of the letters that were exchanged between myself and officers of the company I think will shed light on this very promptly and I don't think it is going to consume a lot of resources to actually get across this a little bit further. I understand that you may be taken by surprise by this question at this moment, so I am thinking it may be better to try and resolve this through correspondence in due course, as I did in relation to the other agreements.

PN52

MS MOORE: Commissioner - - -

PN53

THE COMMISSIONER: Could I just draw your attention to some other aspects of the voluntary additional overtime hours. I decline to certify an agreement which prescribe what was or was not income for the purposes of the superannuation guarantee legislation. And the reason for that, I am sure you would also appreciate, was that what is income for the purposes of the superannuation guarantee legislation is a matter to be determined by the legislation and I don't think the Commission should purport unless it is making an award, to certify an agreement that may have the effect of confusing what is income or not income for the purposes of the legislation.

PN54

MS MOORE: Yes, Commissioner. Would your - would you be - - -

PN55

THE COMMISSIONER: Well, that is another matter that I took up in those transactions that I have referred to in relation to the other certified agreements. That is clause 11.10.

PN56

MS MOORE: Yes, Commissioner.

PN57

THE COMMISSIONER: And could I also draw your attention to the fact that there is a contradiction in some of the terminology of the documentation of the agreement and that is, in this respect, namely voluntary additional hours.

PN58

MS MOORE: Excuse me, Commissioner.

PN59

THE COMMISSIONER: It is clause 11.3 on page 5 of the agreement suggests that there is some sort of obligation to work reasonable voluntary additional hours. Now, that is a contradiction when the concept of voluntarism and obligation and a contradiction which is highlighted by the employee request form. If you read the employee request form at page 9 of the agreement, it is a mutually voluntary arrangement. There is no obligation on the employer to provide the voluntary additional hours. And neither does the request compel the working of the voluntary additional hours which such hours are offered and nor does any such refusal preclude the employee from being offered voluntary additional hours at the next opportunity - - -

PN60

MS MOORE: That is the intention of the agreement.

PN61

THE COMMISSIONER: - - - so there is a tension between the two terms and that likewise, I think, is the subject of the transaction between myself, or my office rather, and the company in relation to the other agreements. My suggestion is perhaps consideration could be given to what was settled upon in those other matters.

PN62

MS MOORE: Yes, Commissioner.

PN63

THE COMMISSIONER: And if it is necessary, and of course I am relying on a recollection of some number of months ago now, to amend this agreement to reflect those, obviously I would, in the absence of any particular circumstances which would persuade me to the contrary, act consistently with those earlier arrangements.

PN64

MS MOORE: Yes, Commissioner. Commissioner, in terms of that, if you are content to rely on written correspondence, would you be looking at having the company make various undertakings in order to make the agreement certifiable.

PN65

THE COMMISSIONER: I am not sure whether I accepted undertakings on the previous occasion and whether I asked for revisions of the memorandum of agreement. But I would act consistently, unless there was something to persuade me to the contrary.

PN66

MS MOORE: Yes, Commissioner. We will review the correspondence.

PN67

THE COMMISSIONER: But as I say, I think this matter can probably be disposed of by an exchange of correspondence.

PN68

MS MOORE: Thank you, Commissioner.

PN69

THE COMMISSIONER: And I think you will find that - well, it may be a bit presumptuous for me to say that you would find at this particular site that the arrangements which have been provided for in the other agreements would meet the operational requirements of the company, but I suspect it is good probability that they would.

PN70

MS MOORE: We will look into it further, Commissioner. Thank you.

PN71

THE COMMISSIONER: Thank you. Subject to some revision of the agreement in relation to the provisions of the agreement allowing for the working of voluntary additional hours under terms and conditions prescribed, It would be my intention to certify the agreement, however, that will be contingent upon an exchange of correspondence and either of the giving of undertakings or the revision of the memorandum of the agreement as foreshadowed in discussions between myself and Ms Moore recorded on the transcript today. Thank you. I will adjourn these proceedings, and if necessary, I will re-list them but I doubt it. Thank you.

ADJOURNED INDEFINITELY [11.23am]