AG2003/1942, Transcript of Proceedings [2003] AIRCTrans 1373 (15 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2003/1942

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
for certification of the Chubb Protective
Services Voluntary Additional Hours
Puckapunyal Military Area Enterprise
Agreement 2003

SYDNEY

10.05 AM, FRIDAY, 28 MARCH 2003

THE FOLLOWING HEARING WAS CONDUCTED BY VIDEOLINK
AND RECORDED IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: I will take appearances here in Sydney in this matter.

PN2

MR P.J. RYAN: I appear on behalf of the applicant, Chubb Security Australia. With me, in Melbourne, the following: MR P. CAREY, Operations Manager, MR. B. DAVIS, Operations Manager, MR C. PARRY, site worker, Melbourne, and MR M. NOVAK, site worker, Melbourne.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thanks. I note Mr Davis has sworn a statutory declaration in relation to this matter, which I have read.

PN4

MR RYAN: Yes, thank you, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Ryan?

PN6

MR RYAN: Thank you, your Honour. Your Honour, the agreement is an application under Division 2 of Part 6 VIB of the Workplace Relations Act, pursuant to section 170LK. The proposed agreement is titled the Chubb Protective Services Voluntary Additional Hours Puckapunyal Military Area Enterprise Agreement 2003. My submissions today rely on the statutory declaration filed by Mr Bob Davis, which was filed in the Commission on 4 March 2003. Your Honour, the underpinning award is the Security Employees (Victoria) Award 1998. The site is a distinct geographical part of a single business and a viable majority of employees have signed and approved the agreement.

PN7

It is the company's submission, your Honour, that the agreement complies with the requirements of the Workplace Relations Act in the following manner. Notice of the company's intention to enter into an agreement with respect to employees on 10 January 2003. Attached to this notice was a draft copy of the proposed agreement. I note that the employees were given the necessary minimum 14 days to consider the agreement, as required under the Act.

PN8

THE SENIOR DEPUTY PRESIDENT: Have you got a copy of the notice?

PN9

MR RYAN: Unfortunately, I don't, your Honour, but I can email that to your associate later today if that would be of assistance?

PN10

THE SENIOR DEPUTY PRESIDENT: Well, you say that it was provided to employees on 10 January. Have you see its content? Have you read it?

PN11

MR RYAN: It is of a pro forma-type nature - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Right.

PN13

MR RYAN: - - - your Honour. It is the nature that I actually drafted originally when we started putting these types of agreements through.

PN14

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will proceed today on the basis that that document is in existence. It was forwarded on 10 January and it complies with the Act. If, when I see the document, there is a problem there well, so be it, we will revisit this matter.

PN15

MR RYAN: Thank you, your Honour. Your Honour, the letter of intent from the company advised that if any of the employees who would be subject to the agreement were a member of a relevant organisation of employees they could request the organisation to make further inquiry about the agreement. Prior to the agreement being made, no such request was made of the company. An information meeting was held with employees, your Honour, on 17 January 2003, during which each term of the proposed agreement was explained to employees. The employees were given the opportunity to ask any questions or raise any issues throughout the negotiation process.

PN16

A secret ballot was conducted on 3 February 2003, where a valid majority of employees voted in favour of the proposed agreement. The agreement has the nominal expiry date of 31 January 2006 and contains the necessary dispute resolution procedure required under the Act, and that is at clause 8. Your Honour, this agreement is of an identical nature to recent agreements that your Honour has respectfully certified in the recent past and in January two agreements were certified by your Honour. Do you require me to go through - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Can you remind me if they had the crib break clause in them, Mr Ryan? I just can't remember.

PN18

MR RYAN: Yes, they did, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: They did, did they? In the same terms?

PN20

MR RYAN: Yes, yes, they did, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. I can understand the necessity to provide for a crib break clause which goes hand-in-hand with additional hours dovetailing onto ordinary hours. I just don't remember that if in the past I have given consideration to whether that in itself gives rise to any consideration on no-disadvantage test. Just - I don't recall turning my mind to this in the past.

PN22

MR RYAN: I don't remember addressing you on that point, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: No, I don't either. Have you had a look at the crib break clause and compare what otherwise would have been the crib break entitlements if employees were working paid overtime in accordance with the award?

PN24

MR RYAN: It is my understanding, your Honour, that that particular crib break clause is of a very similar nature to what is provided in the award - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MR RYAN: - - - so it would comply and meet the no-disadvantage test in that regard.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Actually, while I have got you distracted then from your submissions, I think I need to extend the time for filing, don't I? 4 March?

PN28

MR RYAN: Yes, that is correct, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: All right. No significant change in the composition of the work force from the voting date to 4 March?

PN30

MR RYAN: No, there hasn't, your Honour. Thank your Honour, I might add at that point the only reason why the agreement was filed beyond the 29-day time frame provided by the statute was the geographical nature of the site there at Puckapunyal.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes.

PN32

MR RYAN: It is a remote site. It is located roughly an hour from Melbourne. I also note that the paperwork there needed to be sent to Sydney for me to file it.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, no problems. The time for filing in this application for certification will be extended until the fourth day of March 2003.

PN34

MR RYAN: Thank you, your Honour. Your Honour, it is the company's submission that despite the agreement not passing the no-disadvantage test, it is not contrary to the public interest. There are a number of precedent decisions which support that contention, the most - - -

PN35

THE SENIOR DEPUTY PRESIDENT: I probably don't need to hear you on those, Mr Ryan.

PN36

MR RYAN: Yes, thank - - -

PN37

THE SENIOR DEPUTY PRESIDENT: I am familiar with them.

PN38

MR RYAN: Thank you, your Honour. In summary then, your Honour, it is the company's submission that the voluntary additional hours provisions of the agreement provide an opportunity for employees to earn moneys which would otherwise not be available in the absence of this type of agreement. It was endorsed by a valid majority of employees to whom it will apply. It was discussed fully with the employees, who understood and voted to adopt the concept. It only applies to employees who volunteered to participate in the concept and who complete the necessary Appendix A paperwork attached to the agreement, allows employees to withdraw their authorisation at any time by the completion of an Appendix B form, which is also attached to the agreement, and imposes no compulsion upon employees to work the additional hours whether they have volunteered for the work or not.

PN39

On that basis, your Honour, it is the company's respectful submission that the agreement should be certified.

PN40

THE SENIOR DEPUTY PRESIDENT: Just one final question, that is about the dispute settlement procedure. If a dispute arises and it cannot be resolved in one of the first two or three steps in that procedure, either party is entitled to refer the issue to the Commission. What do you agree we should do with it if it is then referred to us?

PN41

MR RYAN: Yes, thank you, your Honour. It is not the intention of the company to circumvent the powers of the Commission under the Workplace Relations Act. If the matter cannot be resolved through conciliation then the company is aware that the matter would be resolved through arbitration.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, thanks. In relation to that last point, namely, what do the parties agree will happen with the dispute if it comes into here, is what Mr Ryan has just said to me at odds with what the employee representatives understood?

PN43

MR NOVAK: Yes, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: It is consistent with what you thought would happen, or different?

PN45

MR NOVAK: No, what we have read as far as the structure of the requirements we understand fully. We understand the whole system - - -

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR NOVAK: - - - and have had ample information given to us and a long duration to, you know, decide what we want to do.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR NOVAK: The company have held nothing behind from my employees. The shop stewards were always welcome and the union were open to any visit they wished ..... support or to be questioned. So basically, yes, it went to the vote and the majority went for it and wish to proceed with it.

PN50

THE SENIOR DEPUTY PRESIDENT: Okay, and if a dispute can't be resolved under the dispute settlement procedure and it comes in here, the Commission can try and resolve it by conciliation and if it can't, arbitration. Is that consistent with what you understand?

PN51

MR NOVAK: Correct.

PN52

THE SENIOR DEPUTY PRESIDENT: No worries.

PN53

MR NOVAK: Correct, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Novak.

PN55

MR NOVAK: Thank you.

PN56

THE SENIOR DEPUTY PRESIDENT: That is it?

PN57

MR RYAN: Yes, thank you, your Honour; if the Commission pleases.

PN58

THE SENIOR DEPUTY PRESIDENT: Based on the statutory declaration filed in support of this application and the submissions made today, I am satisfied that this agreement should be certified. It does not pass the no-disadvantage test but I am persuaded that it should be - that in certifying it that is not contrary to the public interest. It will come into operation on today's date, the 28th day of March 2003 and remain in operation until the 31st day of January 2006. Now, that is, of course, all subject to you getting that section 170LK(4) notice to me, Mr Ryan, and my not having any concerns about the content of that notice.

PN59

After receipt of that we will issue a certificate and provide a copy to the parties. The commission now adjourns.

ADJOURNED INDEFINITELY [10.16am]