AG2003/1225, Transcript of Proceedings [2003] AIRCTrans 1343 (15 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/1225

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by the Mid Murray Animal and Plant Control Board
and Others re the Mid Murray Animal and
Plant Control Board Enterprise Agreement
No 2 2003

ADELAIDE

11.33 AM, THURSDAY, 27 MARCH 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. Can I have some appearances, please?

PN2

MR LILLECRAPP: I'm the Presiding Officer of the Mid Murray Animal and Plant Control Board.

PN3

MS F. DONAGHY: If the Commission pleases, I appear for the Australian Services Union.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Donaghy. Now, which of the two of you want to start first in this matter? It is entirely a matter for the two of you to determine.

PN5

MR LILLECRAPP: I can, sir. Basically, we are looking for, you know, confirmation and approval from this Court in regard to the Enterprise Bargaining Agreement which we have had very little change to, this recent one, and all staff were in agreement with it. The staff agreed to it from 24 February. The Board had agreed to it on 13 February.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Lillecrapp. Ms Donaghy?

PN7

MS DONAGHY: Thank you, sir. Yes, we would support Mr Lillecrapp's submission that the agreement should be certified. Perhaps, as a little bit of background, this is actually only the second certified enterprise agreement covering the Board that has been certified. There was another agreement between the parties, but it never quite reached the Commission. You would have noticed in the schedule of pay rates at the end that salary increases did actually flow through in '98 and '99. That was as a result of an uncertified agreement between the parties. As Mr Lillecrapp said, there are only some minor charges, largely clarification.

PN8

The introduction of change clause, clause 11, has spelled out a little bit more clearly what the intention of the parties was and that, of course, has become important because Animal and Plant Control Boards are probably going to be subject to amalgamation with water catchment boards and soil boards, so that was a clarification there. Other than that, there's only minor typo things. The agreement does actually include a clause for resolving disputes about any aspect of work, and problems arising from the implementation of matters contained within the agreement.

PN9

In that clause the parties have empowered the Commission to personally conciliate, and if that doesn't resolve the matter, to arbitrate the dispute. There are four employees covered by the agreement, and our understanding is that all four were very closely involved in reviewing the previous agreement and making suggestions for the changes so we, therefore, support its certification.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Donaghy. Mr Lillecrapp, I have a few questions. No, not very many questions about the agreement. I need to preface my questions such that I need to make it absolutely clear to you that they are not designed to trip up the process of certification. They, rather, reflect my practice of preferring to ask a question now, rather than regretting that I didn't ask it in the future. Equally, my questions are not designed nor will they have the effect of proposing changes to the document that voted upon by the employees. They go, rather, to the intention of the parties in that respect.

PN11

Finally, I will probably direct my questions to Ms Donaghy. She is really good at answering them, much practised at that art, but should you wish to jump to your feet to answer a question or to express a view on behalf of the employer, then please feel free to do so. Now, Ms Donaghy, can I take you to clause 14. Clause 14 is expressed in the statutory declarations as a clause which represents a reduction in entitlements pursuant to the award. I'm just wondering whether you might clarify for me how the parties believe that to be the case?

PN12

MS DONAGHY: Just give me a second just to go through the clause. The reductions would be the span of hours to 7 pm from 6.30 pm that is provided in the award as the ordinary time. In 14.3, no more than 10 hours in any one day under the award, it is no more than 8 hours in any 1 day can be worked without attracting overtime, but that is effectively the only minor changes, as I understand them.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I then, before you leave clause 14, take you to 14.4. The first paragraph in 14.4 talks of a maximum of 2 weeks at the employees' normal weekly hours to be accrued under 14.3. The second paragraph talks of -

PN14

During time of increased work demands where it is mutually agreed, the employee may defer taking accumulated time off until a period of reduced work activity.

PN15

I just wanted you to clarify for me the extent to which those two statements sit comfortably alongside each other.

PN16

MS DONAGHY: Well, as I understand it - - -

PN17

THE SENIOR DEPUTY PRESIDENT: If you want to have a talk with Mr Lillecrapp before responding, I'm very happy for you to do so.

PN18

MS DONAGHY: Well, perhaps I will say what my understanding is - - -

PN19

THE SENIOR DEPUTY PRESIDENT: All right.

PN20

MS DONAGHY: - - - because I have discussed that actually with our members. As it has been explained to me, that is normal - the Board does not like the employees to accrue too much toil time. They like it to be kept to a minimum - a maximum of 2 weeks. However, because of the nature of the business, sometimes they don't have time to take off their accrued time and need to accrue in addition to the 2 weeks and take that time off when the Board is not busy, but they will get permission from the Board before they accrue over 2 weeks.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you, and you are happy with that?

PN22

MR LILLECRAPP: Very happy with that, sir, yes. We do get certain periods of time where we are fairly busy, especially the late winter through to spring, that is probably the worst time, and this is when accrual times do come up and when the slack times come around, that is when they take the time off. We are flexible in that regard.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Lillecrapp. Clause 23.2 relates to the secondment of officers or the sharing of resources. I read that clause as expressing an intention that if an employee covered by this agreement was involved in a resource sharing or secondment requirement working for a Board, another Board covered by a different agreement with rates of pay that might be, or conditions that might be higher than these, then for the time they would be working for that other Board, then they would receive the higher rate but if they were working for another Board with rates of pay and conditions which were less than those set out in this agreement, then they would continue to receive the current agreement rates and conditions. Is that a fair summation of what that clause 23.2 is intended to reference?

PN24

MS DONAGHY: In our view, that is right. It might even be that they are seconded to one of their constituent councils on another Board where the working arrangements might be different, and as a result of that, they might be more beneficial and if that is the case, then certainly they should be paid more beneficial rates. If it is at a lower rate, then the employees would continue to receive the benefits under this agreement.

PN25

THE SENIOR DEPUTY PRESIDENT: Again, Mr Lillecrapp - - -

PN26

MR LILLECRAPP: If I might add to that, sir, in the case of we are seconded to another Board, I think the rate of pay would be under that strict level they are on - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MR LILLECRAPP: - - - whether it be level 4, level 5, whatever. I don't think there could be any change to that. They would have to stick to that criteria as far as I'm on the understanding. The only other - it doesn't happen so much between Boards, but sometimes a Commission requests our officers to help out, especially with the boom rate situation on the other side of the river and we have had to put in time down there.

PN29

THE SENIOR DEPUTY PRESIDENT: I see, but if I looked at clause 23.3, that indicates there would be no reduction in benefits or remuneration.

PN30

MR LILLECRAPP: No.

PN31

THE SENIOR DEPUTY PRESIDENT: So that seems to imply that no matter where the employees covered by this agreement are working, this agreement will establish a minimum basis for the calculation of employment benefits.

PN32

MR LILLECRAPP: That is right.

PN33

THE SENIOR DEPUTY PRESIDENT: That minimum might be increased, depending on where they were working and the arrangements that apply to that situation. Thank you.

PN34

MR LILLECRAPP: At the moment, we have just gone through the process of contacting all relevant Boards within the vicinity with a memorandum of understanding so that this can take place - - -

PN35

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN36

MR LILLECRAPP: - - - when necessary.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 24.2 talks of the possibility of problems arising from the implementation of matters contained in this agreement, and it envisages that discussions would occur to try to resolve those issues, that there might be negotiation between the Board and the Union and ultimately, the possibility of reference to the Commission. How does that clause sit alongside the role of the Enterprise Bargaining Committee articulated in clause 5? I should perhaps comment that there's probably no right or wrong answer to my question.

PN38

I am, perhaps, more interested in whether the employer and the employee - and the Union have the same answers to the question, so to the extent that the two of you might want to put your heads together and make sure you have got a common answer, that might be an appropriate move.

PN39

MS DONAGHY: Is that the only one, the last one, because perhaps we could take that one on notice if there's others that we might need to confer on so - - -

PN40

THE SENIOR DEPUTY PRESIDENT: There are a couple of other questions. I have a question relative to clause 25 which talks of the identification and recording of practices and arrangements in existence at the time of certification of the agreement such that those practices would be taken into account for the purpose of the 3 per cent provided for under clause 27. I had a question as to who is actually going to record those practices, and what arrangements are going to apply with reference to that record.

PN41

I had a further question for clarification relative to clause 29, which is the no further claims clause, where I read that clause as making it clear that unless a future safety net adjustment incorporated in the Municipal Officers Award provided for a wage increase that had to be applied to certified agreement, then the wage increase as set out in clause 27 would be the sum total of the increases provided for under the terms of this agreement. I was just anxious the parties confirm that intention.

PN42

There was a final question relative to clause 31. That proposes a uniform arrangement which, as I read it, was an interim arrangement and I was just going to ask the parties whether they were in a position to tell me what would define the intended end of that interim arrangement. It might be of assistance.

PN43

MR LILLECRAPP: This is in relation to the uniforms?

PN44

THE SENIOR DEPUTY PRESIDENT: That is correct, Mr Lillecrapp.

PN45

MR LILLECRAPP: Well, at this stage, we are only looking at the shirt.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes. I understand that. That is expressed as an interim arrangement. The question that I've got goes to what would define the end of that interim arrangement, and is it intended that that interim arrangement might end during the life of this agreement?

PN47

MR LILLECRAPP: I doubt very much whether it will. I doubt it.

PN48

THE SENIOR DEPUTY PRESIDENT: What would be the trigger for the - - -

PN49

MR LILLECRAPP: This has come from, actually, the employees themselves.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR LILLECRAPP: They requested this and the Board has gone along with it.

PN52

THE SENIOR DEPUTY PRESIDENT: Look, I understand that.

PN53

MS DONAGHY: Sir, I think that I - - -

PN54

THE SENIOR DEPUTY PRESIDENT: It is probably difficult for you to answer the question without being aware of the fact that, believe or not, there are disputes over the operation of uniform provisions that end up before the Commission.

PN55

MR LILLECRAPP: Right.

PN56

THE SENIOR DEPUTY PRESIDENT: Hence the reason for asking the question. Because of the way in which that clause is worded, it talks of an interim measure and I'm just anxious to know whether the parties agree that interim measure is intended to apply for the duration of this agreement, and whether the parties are at one over what would happen or what would need to happen for that interim measure to change during the life of this agreement.

PN57

MS DONAGHY: My understanding that would trigger an end to that internal arrangement would be the establishment of a Natural Resource Management Board in place of the Animal and Plant Control Board.

PN58

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN59

MR LILLECRAPP: That is why, sir, we haven't gone too far with this stage because of that new arrangement coming about, the NRM, with soil boards and lap and catchment water management boards, etcetera, because all we were thinking of is just with our logo on it. With Mid Murray Animal and Plant Control Board under it, well, we would have to go under a different name that is the only thing, that is why we haven't - - -

PN60

THE SENIOR DEPUTY PRESIDENT: And were such an organisational change to be proposed then I would be safe, I guess, in presuming that the operation of clause 22 would ensure that the issue of uniforms was at least considered in that context?

PN61

MR LILLECRAPP: Yes.

PN62

THE SENIOR DEPUTY PRESIDENT: Thank you. So there you have the sum total of my questions. I'm very happy for the parties to get together now and see whether you can clarify that issue.

PN63

MS DONAGHY: Yes, we can get together.

PN64

THE SENIOR DEPUTY PRESIDENT: I won't adjourn these proceedings, but by all means have a talk amongst yourselves.

PN65

MS DONAGHY: Thank you.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Donaghy?

PN67

MS DONAGHY: Well, sir, Mr Lillecrapp and I both have a common understanding of those clauses which I can explain to you. Clause 24.2 which is if there was a dispute about the implementation of matters contained in the agreement, it isn't the intent of the parties to call the Board back as such. It would be the presiding officer of the board who would discuss it with the employees. So there would not be an extra nominee of the Board involved in that formally. I mean, obviously there probably would be discussions but the formal process would be the presiding officer and the employees in the first instance. It was just that first instance you were interested in and then if that is not resolved then the union would become involved. If we still couldn't resolve it then we would come to the Commission. They were the three stages of that.

PN68

Clause 25, in terms of who has responsibility for identifying and setting out the practices and arrangements. Our understanding is that that would be discussed at a Board level, any proposed changes and any recognition of improved practices would be taken to the Board and they would be recorded in the minutes of the Board and/or by the secretary. So the Secretary of the Board would have the responsibility.

PN69

THE SENIOR DEPUTY PRESIDENT: And irrespective of when that task is undertaken and what changes or processes are documented, my understanding is that the 3 per cent wage increase set out in clause 27.1 would apply from the first pay period after certification and the further 3 per cent would apply 12 months hence?

PN70

MS DONAGHY: That is right, those wage increases aren't reliant on that earlier process.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes. You can see why, given the last sentence in clause 25, that became a relevant question?

PN72

MS DONAGHY: Yes, I can and I think that that is a probably a problem with the framing of that paragraph.

PN73

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN74

MS DONAGHY: In clause 29, it is intention that the two 3 per cent salary increases set out in clause 27 will be the sum total of salary increases sought during the life of this agreement. The only increases other than that that apply are award allowance increases and not the wage increases. If that answers your question.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Donaghy. There you go, Mr Lillecrapp, I told you she would do well. On the basis of both the statutory declarations and the information provided to me today, I'm satisfied the agreement meets the requirements of the Act insofar as it complies with the no disadvantage test, it is of a duration envisaged by the Act, it contains the necessary dispute resolution processes, and it does not contain provisions which are contrary to the Act.

PN76

I am similarly satisfied the agreement was reached through a process whereby the employees were able to make an informed decision to vote in favour of it. I will certify the agreement with effect from today. That certificate will be prepared and forwarded out to the parties over the next few days. It will note that I asked questions relative to various provisions. It won't record your answers, but obviously the transcript remains as a record in the unlikely event that you needed to clarify an intention in this regard. It remains for me to congratulate the parties on reaching this agreement and to express my wish that it operates to benefit both the employees and the employer and I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [11.59am]