AG2003/3068, Transcript of Proceedings [2003] AIRCTrans 1903 (21 May 2003)

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


O/N 2534

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/3068

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Australian Education Union - Victorian
Branch and Another for certification
of the Broadmeadows Disability Service Home
First Enterprise Agreement 2003

MELBOURNE

10.30 AM, TUESDAY, 6 MAY 2003

PN1

MS N. BOYLE: I appear for the VHIA and with me is W. MIDDLETON, the CEO of Broadmeadows Disability Service.

PN2

MR D. COLLEY: I appear for the Australian Education Union with MR G. BARCLAY.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes Ms Boyle.

PN4

MS BOYLE: The employer, Broadmeadows Disability Service makes an application to the Commission for certification of agreement in relation to its Home First staff. The agreement is a consolidated agreement in relation to wages and conditions. We maintain that the agreement complies with all the requirements of the Workplace Relations Act, as all of the 35 staff covered by the agreement had access to the agreement for at least 14 days. Approval was made by a valid majority, an explanation of the terms of the agreement took, that on balance we believe that there has been no reduction in terms and conditions, that the agreement by clause 10 contains a procedure for preventing and settlement of disputes and that the agreement by clause 5 specifies a nominal expiry date.

PN5

We also need to make an application under 170XF(2) Determination of a Designated Award, and as per our written submissions, we are of the belief that the Attendant Care Victoria Award 1995 is the most appropriate award as it covers the classification and positions which is intended to be covered by the agreement. If you have no further questions, your Honour, we ask that the agreement be certified.

PN6

THE SENIOR DEPUTY PRESIDENT: What written submission are you referring to on your XF application?

PN7

MS BOYLE: That was - - -

PN8

THE SENIOR DEPUTY PRESIDENT: Is that the application itself, is it?

PN9

MS BOYLE: Yes, it was actually lodged with the application. We have got a page wherein the matter of disability application is made under XF(2) that the kind of work that the persons are carried on with the - to remain living independently as possible. Do you have that page?

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, that is the application.

PN11

MS BOYLE: Yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MS BOYLE: And that is what we rely on, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, and why is the Attendant Care Victoria Award the appropriate award?

PN15

MS BOYLE: Because the Attendant Care Award, they contain - that award is for employees who work independently, they help clients that are disabled or aged or infirm to become more independently living in the community. They are based from home rather than at a place of work and that the work that these employees are carrying on are based from an employee's home rather than the actual place of work.

PN16

THE SENIOR DEPUTY PRESIDENT: And that is similar to the work that the employees of the Broadmeadows Disability Services Home perform, is it?

PN17

MS BOYLE: Yes, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes. Yes, Mr Colley.

PN19

MR COLLEY: If the Commission pleases. The AEU supports the application to have the Attendant Care Victoria Award 1995 designated at the relevant award for the purposes of the no disadvantage test and in doing so, we concur with the submissions provided by Ms Boyle on behalf of the applicant in this matter. Further to that application, the AEU also seeks certification of the Broadmeadows Disability Services Home First Agreement 2003. That is an application under division - sorry - part VIB, division 2 of the Workplace Relations Act, specifically section 170LJ. The statutory declaration prepared Ms Fullwood, on behalf of the AEU, should be in the Commission's files, and for the reasons set out in that application the AEU submits that the requirements of the Act in respect of the certification are met and we would rely upon that statutory declaration.

PN20

THE SENIOR DEPUTY PRESIDENT: And you are satisfied, are you, that despite the reduction in some terms and conditions of employment identified in clause 7.3 of the statutory declaration, the increases identified in 7.4 provide on balance that there is no reduction. Is that the case, Mr Colley?

PN21

MR COLLEY: Yes, we are, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: And have you done an exercise of any sort to satisfy yourself to that position?

PN23

MR COLLEY: We have looked at the clauses both as against the award and as against the proposed agreement, consulted with our members and had discussions with employees, generally at the workplace and for the reasons set out in the statutory declaration, particularly in respect of the clauses set out in 7.4 which provide for - of the stat dec, which provide for additional benefits, we are satisfied that, on balance, the no disadvantage test has been met.

PN24

THE SENIOR DEPUTY PRESIDENT: Are you able to indicate in ball park terms what sort of increased rate of pay has resulted from the agreement?

PN25

MR COLLEY: The ball park - it is a strange term, your Honour, in the sense that the employees are - there is a new classification structure to which new rates of pay attend and - - -

PN26

THE SENIOR DEPUTY PRESIDENT: So it is hard to draw a comparison, I suppose?

PN27

MR COLLEY: it is hard to draw a strict comparison but - - -

PN28

THE SENIOR DEPUTY PRESIDENT: That is why I used the expression "ball park".

PN29

MR COLLEY: - - - in sort of general terms it is in the vicinity of 10 per cent.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Well I am satisfied that the no disadvantage test has been passed in that case. I will make a determination as requested. I determine that pursuant to section 170XF the Attendant Care Victoria Award 1995 is an appropriate award to be used for the purpose of determining whether the Broadmeadows Disability Service Home First Enterprise Agreement 2003 passes the no disadvantage test. I also will certify the agreement. I am satisfied that it is made between an employer - is it a constitutional corporation or are we safely using the employer in Victoria provision in the Act?

PN31

MR COLLEY: It is both, your Honour. In terms of the statutory declaration, we say it is a incorporated association but also - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Does it trade at all?

PN33

MR COLLEY: - - - in the provision of service - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Does it trade at all?

PN35

MS BOYLE: Your Honour, it is actually a company.

PN36

THE SENIOR DEPUTY PRESIDENT: It is a company?

PN37

MS BOYLE: Yes.

PN38

THE SENIOR DEPUTY PRESIDENT: What is the name of the company?

PN39

MS BOYLE: Broadmeadows Disability Service Incorporated.

PN40

THE SENIOR DEPUTY PRESIDENT: Incorporated, yes.

PN41

MS BOYLE: Yes.

PN42

THE SENIOR DEPUTY PRESIDENT: Very well, in that case I will name is properly, by adding "Incorporated" after "Disability Services". I am satisfied that it is a constitutional corporation carrying on part of a single business. And could you identify the part of the single business for me?

PN43

MS BOYLE: The single business is actually the Home First program and actually - - -

PN44

THE SENIOR DEPUTY PRESIDENT: That is the part of the - - -

PN45

MS BOYLE: Yes, which is part of Broadmeadows Disability Service. They have a number of - and sorry, your Honour, just one more part. With respect to the name of Broadmeadows Disability Service, there was no "Incorporated" at the end of that, sorry. It is a company but there is no "Incorporated" at the end of that.

PN46

THE SENIOR DEPUTY PRESIDENT: I see.

PN47

MS BOYLE: Sorry about that. Thank you.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. And I am also satisfied that the union has at least one member employed in that part of the single business, the agreement passes the no disadvantage test, it was made in accordance with section 170LJ and approved by a valid majority of relevant employees, the explanation of its terms was appropriate, it includes dispute settling procedures, specifies one year from the date of certification and of course that is not more than three years after the date on which it comes into operation. I am satisfied there are no reasons set out in section 170LU as to why I should refuse to certify it. Accordingly, it will be certified to operated from today's date. The appropriate instrument will issue shortly. Yes, thank you.

ADJOURNED INDEFINITELY [10.38am]