AG2002/5879, Transcript of Proceedings [2003] AIRCTrans 15 (6 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/5879

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LS of the Act
by the Corporation of the Town of Gawler and
Another re the Town of Gawler/ASU Enterprise
Agreement No 3 2002 agreement about industrial
dispute (Division 3)

ADELAIDE

10.33 AM, FRIDAY, 13 DECEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have some appearances please?

PN2

MS L.E. JAMES: I appear on behalf of the Town of Gawler.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms James.

PN4

MR D. PAYNE: I appear on behalf of the Australian Services Union.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Payne. Ms James?

PN6

MS JAMES: Senior Deputy President, this agreement, the Corporation of the Town of Gawler and Australian Services Union Enterprise Agreement Number 3 of 2002 comes before you following our application under 170LS of the Workplace Relations Act between the Town of Gawler v Australian Services Union. The agreement coves 63 employees and the statutory declaration sets out the consultative process undertaken.

PN7

There was quite an extensive negotiation period. All employees were involved in workplace meetings conducted by workplace representatives and the union organiser. Several meetings were held to discuss and consult on the proposed changes made to the previous agreement. All employees were then provided with their own final draft copy to consider for 14 days prior to the taking of the vote which occurred on 15 November 2002. The agreement is to take effect from 1 April 2002 and nominal expiry being 31 March 2004.

PN8

Senior Deputy President, this agreement has undergone a major reconstruction both in format and content. It certainly does contain many of the previous clauses. However, it has gone through that reconstruction as I've said. It is reduced by 20 clauses. It is now a 67 to 47 and there are many changes due to a range of reasons which I will discuss with you. The conducting of the reviews of operational arrangements or the introduction of various strategies have now been achieved and no longer apply.

PN9

The improved construction of clauses so that ambiguity and repetition has been removed, the merging of several clauses which provides for a more clear approach to best practice and continuous improvement. There's an example there about three or four clauses have been merged into one and completely reconstructed. The deletion of clause contents which simply mirror the award conditions and really don't need to be repeated in the enterprise agreement.

PN10

Finally the inclusion of some clauses to provide for increased benefits for the staff. Now, the changes are extensive and I can go through those with you but you just wish to discuss - - -

PN11

THE SENIOR DEPUTY PRESIDENT: No, you don't need to go through the changes made to previous agreement, Ms James, fundamentally the test, the no disadvantage test is the key criteria which the agreement has been considered in the context of how it ranks with the award.

PN12

MS JAMES: Yes, that is right. So we are going to hear from my friend or raise any questions to me at this time.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I do have questions on this agreement but it might be best if I hear from Mr Payne first.

PN14

MR PAYNE: Thank you, Commissioner. Commissioner, I had intended going through the agreement clause by clause that is just so the ASU supports the application of the agreement before the Commission today. Clause 6, date and period of operations specifies a nominal expiry date of the agreement and is within the requirements of the Act. Also we believe the agreements meets the requirements of the no disadvantage test of the Act. The agreement has been changed as stated.

PN15

The agreement has endorsement from the Council and the employees and we would be urging that the Commission certifies the agreement today and I'm sure the Commissioner has some questions of the parties. With that I finish my submissions, sir, and for any questions that you do have.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Payne. Now, I have two categories of question in relation to this particular agreement. One category go to issues upon which I will need undertakings from the parties and the second category goes simply to questions of clarification of the intent. Can I take the parties first of all to clause 5 of the agreement and perhaps it might be better if I take you first of all to clause 7 which whilst I'm out of numerical synchronisation, clause 7 is of fairly fundamental importance.

PN17

Clause 7, I take that the intention of the parties is that the agreement applies to all of the employees who would otherwise be covered by the award, is that correct, Ms James?

PN18

MS JAMES: No, they are covered by the award but they have their own separate remuneration packages which of course is not going to be affected - - -

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN20

MS JAMES: - - - by this Enterprise Agreement but they would not be disadvantaged in terms of the award.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you for that. Now, that then takes me back to clause 5 and in considering clause 5 I've had regard to the definition in clause 4 of: work place representative and I seek from the parties clarification of the extent to which the employee representatives, whether they be employee representatives or work place representatives, may either be persons who are not members of the ASU or represent persons who are not members of the ASU. Because of the way in which the agreement is now structured, I need some clear indication from the parties on that question. Ms James?

PN22

MS JAMES: Yes sir, the way that will work is that the five representatives of the employer may or may not be union members and their role is to ensure that all employees regardless of membership are provided with adequate consultation etcetera. The reason why this EBC is so large too, is that with 63 employees they need to make sure that all employees right across the organisation have the opportunity to be consulted and involved. So certainly all employees, regardless of membership would be consulted and included in negotiations.

PN23

MR PAYNE: That is our understanding too sir.

PN24

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 11.1 and simply ask a question of clarification in relation to the performance payments. It goes to the status of the March 2002 review which is referred to in that clause.

PN25

MS JAMES: This is a carry on from the previous agreement. This performance payment is - it was $500 in the previous agreement, it is now currently $300. It is paid with regard to the review of the previous enterprise agreement period, the achievement that they have been able to - they have quite an extensive list of strategies and outcomes that they needed to achieve in the previous agreement and then that review being done, the bonus payment would then be paid.

PN26

THE SENIOR DEPUTY PRESIDENT: So the $300 payable on an annual basis commencing with the certification of the agreement is dependent upon the continued achievement of the initiatives that are identified or were identified in that March 2002 review?

PN27

MS JAMES: That is correct, sir, yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 16 and ask whether the payment arrangements provided for at clause 16.2 are intended to apply in addition to those stipulated at clause 36 of the agreement?

PN29

MS JAMES: Yes, that is a totally separate payment, so that would still be payable in my view.

PN30

THE SENIOR DEPUTY PRESIDENT: Do you need to check that with your member counsel, Ms James? I ask that simply because of the potential for confusion arising from the changes that have been made to this agreement?

PN31

MS JAMES: Well, I can take that on advisement, but certainly there would be no reason to believe that that would not be paid because it is - in 36.5 that is still payable, it is still saying that that service payment is being paid even if someone is made redundant and it is less than 10 years.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, well, if you are comfortable - - -

PN33

MS JAMES: Yes, I am comfortable with that, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: - - - with it then I am happy to work on that basis.

PN35

MS JAMES: Yes, I am, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Payne?

PN37

MR PAYNE: Yes, sir, it is where?

PN38

THE SENIOR DEPUTY PRESIDENT: You agree the two clauses sit - - -

PN39

MS JAMES: Stand alone.

PN40

THE SENIOR DEPUTY PRESIDENT: - - - side by side and each needs to be applied?

PN41

MR PAYNE: Yes, would be additional.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 27 and in particular to clause 27.3 which recognises hours agreements that might be reached including pre-existing hours agreements. Can I ask whether those agreements have been documented and whether the parties are in accord as to their existence and their - the extent to which they do specify significant changes?

PN43

MS JAMES: Yes, I can, sir. These agreements are struck with their recreation centre employees and swimming pool employees. The are well documented and it is quite clearly been agreed to between the parties and there certainly is knowledge of those agreements being in existence.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Payne, you are in agreement with Ms James on that issue?

PN45

MR PAYNE: Yes, sir.

PN46

THE SENIOR DEPUTY PRESIDENT: Clause 29, I simply note that the statutory declarations don't identify these provisions as being provisions which involve a reduction in provisions provided for under the award and yet they do appear to be inconsistent with the award. I am not suggesting that they are inconsistent to the extent that they create a difficulty in relation to the no disadvantage test, but they are inconsistent. Clause 31, at clause 31.1 and clause 32 - 31.2. The agreement envisages that a copy of any mutually agreed arrangement would be recorded in writing and retained by the council and the workplace representative.

PN47

Given the role of the workplace representative, as I have earlier referred to in clause 4, which appears to be restricted to the ASU membership. I'm just wondering how it is that people who are not members of a union, gain access to those mutually agreed arrangements?

PN48

MS JAMES: I would agree with that and in terms of the definition of the enterprise agreement it would - it should flow on that any agreements that are struck with non-union members would still be provided to the workplace representative as defined in the agreement and a copy to the union.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes and in addition to that, how is it that the person or persons who may not be members of the union, would be made aware of those agreements?

PN50

MS JAMES: Yes, yes, certainly - well, as my friend is advising me, he is absolutely sure that the council would make sure that that provided.

PN51

THE SENIOR DEPUTY PRESIDENT: Can you give me an undertaking to that effect?

PN52

MS JAMES: I can, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I just clarify, Ms James, in relation to clause 32, that part-time employees working flexible hours will accrue 4 weeks annual leave to be paid for on a pro rata basis but their actual accrual of long-service leave and sick-leave would be better described as being on a pro rata basis.

PN54

MS JAMES: Yes, this clause comes about - it sometimes couches to apply in a different way for example, a part-time employee may be paid extra hours as an overtime payment. What this clause is intending to do is that all of those extra hours that are worked then go towards the accrual of leave. So rather than being considered just an overtime payment, it also - and of course, they will be paid for the extra hours, but for the purposes of the leave accruals, they would also be part of that accrual calculation.

PN55

THE SENIOR DEPUTY PRESIDENT: I see, thank you. And a last question relevant to clause 46. Clause 46.1.2 envisages that an employee can have a representative of their choice involved in the process. Can I clarify that that involvement would be intended to continue throughout the remainder of the dispute resolution process?

PN56

MS JAMES: Yes, sir, that would certainly be the way that that would operate and that does not need to be - that representative may or may not be an employee of council, it could be anyone of their choosing.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms James. Thank you for persevering with my questions.

PN58

MS JAMES: You are welcome.

PN59

THE SENIOR DEPUTY PRESIDENT: It does appear to me however, that the agreement provided it is read in concert with the undertakings that have been given to me, is clearly not inconsistent with the requirements of the Act. I am also satisfied that as the agreement contains a dispute resolution provision and is of a duration envisaged by the Act, it meets the requirements of section 170LT. The agreement meets the no disadvantage test and I'm satisfied that it was provided to employees in a form which allowed them to make an informed decision to vote in favour of it.

PN60

The Hearing of this matter has been brought forward marginally to accommodate the parties and the Commission. Subject to a person attending at the nominated time, in which case I would then adjourn the matter and advise the parties that it would need to be re-listed, I can advise that I intend to certify the agreement with effect from today. That certificate would then be prepared and forwarded out to the parties over the next few days. It will note that the parties have given me a number of undertakings which will need to be read in concert with the agreement.

PN61

On that basis I congratulate the parties on reaching this agreement. I trust that it benefits both the employees and the employer. I adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [10.55am]