AG2003/2750, Transcript of Proceedings [2003] AIRCTrans 1927 (21 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/2750

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LS of the Act
by the City of Onkaparinga and Others for
certification of the City of Onkaparinga
Municipal Officers and Nurses Enterprise
Agreement 2003

ADELAIDE

10.02 AM, WEDNESDAY, 7 MAY 2003

PN1

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

PN2

MS HARMON: I appear for the City of Onkaparinga.

PN3

MS K. EDWARDS: If it pleases the Commission, I appear for the Australian Nursing Federation, SA Branch.

PN4

MR D. PAYNE: If it pleases the Commission, I appear on behalf of the Australian Services Union. Appearing with me is G. WILLCOX, if the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Payne. Now, who is going to open the proceedings this morning? Ms Harmon, does that task fall to you?

PN6

MS HARMON: It does. Thank you very much.

PN7

THE SENIOR DEPUTY PRESIDENT: You have won the prize so go ahead.

PN8

MS HARMON: I did. Thank you. This agreement is a result of some months' work on behalf of all the parties here and provides what we believe is a good and fair outcome for all parties involved. There are some changes to what had been fundamentally a rollover type of agreement and these changes provide what we believe is good and fair working conditions for our employees and a reasonable pay increase over the period of the agreement which is for 3 years or, in fact, until 31 December 2005, I should say.

PN9

The wage increase, as I said, is fair and it provides also flexibility for the employer in relation to, in particular, hours of work and the way we are able to use our working arrangements to suit the needs of the organisation. We believe that it meets the criteria of the Act, and hope that it will gain your approval this morning. I am prepared to take any questions if you have any.

PN10

THE SENIOR DEPUTY PRESIDENT: Ms Harmon, I have a number of questions on clarification relative to the actual agreement. I will save those questions until I have heard from the two union parties but can I ask initially a question relative to the employer's statutory declaration?

PN11

MS HARMON: Indeed.

PN12

THE SENIOR DEPUTY PRESIDENT: Can I refer you to paragraph 6.4. Whilst I will ask my question now, I am happy for you to ponder upon it while I hear from Ms Edwards and Mr Payne. Where it is advised in 6.4 that there are no specific clauses that represent reductions in terms of the award, the answer to that particular question is inconsistent with the material provided in the other statutory declarations. I'm just anxious to know whether the parties have a consensus in that regard, or whether there are some differences of view. You can answer the question now or you can ponder upon it.

PN13

MS HARMON: I can answer the question now. We have discussed that this morning and recognise that the statutory declaration that we had put forward had, in fact, considered items that were in the previous agreement and recognising that there were only minor changes, that there was no disadvantage there and had not correctly answered the question in the statutory declaration which should have reflected the fact that there were, indeed, some disadvantages in this agreement when compared to the award.

PN14

They would have fundamentally related to some of the hours of work and some training provisions in the Award. I would certainly agree with the statutory declaration that has been put forward by the ASU.

PN15

THE SENIOR DEPUTY PRESIDENT: I see, and what about the nurses award?

PN16

MS HARMON: In the nurses award, the disadvantage there would be in relation to hours of training but not in relation to hours of work because we follow the award provisions for our nurses in relation to hours of work.

PN17

THE SENIOR DEPUTY PRESIDENT: Now, Mr Payne?

PN18

MR PAYNE: Thank you, Commissioner. Commissioner, we are of the same opinion as my colleague that the statutory declarations do differ. On the statutory declaration from the ASU, it does go a bit further and identifies some reductions in the agreement in terms of conditions of these employees employment relevant to the designated award, but we also agree that and we were going to place on our transcript the agreement does not, on balance, reduce the overall terms and conditions of the employees employment covered by the agreement.

PN19

We also believe that the agreement does meet the no disadvantage requirement of the Act. It also contains a dispute settlement procedure. Clause 1.5, dating the period of operation, specifies the nominal expiry date of the agreement as 3 years from 1 January 2003, and is within the requirements of 170LT(10) of the Act. Therefore, Commissioner, we believe that as stated prior, the agreement does not, on balance, reduce the overall terms and conditions of employment of the employees covered by the agreement, and we would be seeking certification of the agreement today, if the Commission pleases.

PN20

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

PN21

MS EDWARDS: I have not much further to add, sir, except that we allowed our members to be represented by the ASU in this agreement as we had very few members. We don't believe that the clauses where there is some slight change actually refers or relates to the Nurses (SA) Award because they are excluded. Therefore, we believe that this agreement passes the no disadvantage test, thank you.

PN22

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Now, Mr Payne and Ms Edwards, I have a number of questions that I will address to Ms Harmon. Those questions go to the intention of the parties. They reflect my desire to clarify issues now rather than regret that I didn't do so at some future stage. They do not invite the parties to rewrite the document because this is the document that employees voted on. They, instead, go to the issue of intention. The questions are not designed to trip up the process of certification.

PN23

Whilst I will address my questions to Ms Harmon, I extend an invitation to both of you to jump up and express a contrary view. If you don't do so, I will assume that you share the same views as those expressed by Ms Harmon. The first question relates to clause 1.6. Can I presume that the intention underpinning that particular clause is that the agreement with respect to nurses should be read in concert with the Nurses (SA) Award, except insofar as this agreement is inconsistent with that award, and that with respect to other employees, would need to be read in concert with the Municipal Officers Award? Is that correct?

PN24

MS HARMON: If it pleases the Commission, that is correct.

PN25

THE SENIOR DEPUTY PRESIDENT: I then take you to clause 2.3. Because clause 2.3.1 excludes application of the clause to nurses, I am assuming that hours of work for nurses are consistent with those set out in the Nurses (SA) Award?

PN26

MS HARMON: If it pleases the Commission, that is correct.

PN27

THE SENIOR DEPUTY PRESIDENT: Clause 5.9, can I assume that there is a journey accident insurance scheme in place at the present time?

PN28

MS HARMON: Yes, there is already a process in place, if it pleases the Commission.

PN29

THE SENIOR DEPUTY PRESIDENT: So I would understand from that clause that the Council has the capacity to change insurer and the details of those arrangements provide that the cover as set out in 5.9.2 and 3 is maintained?

PN30

MS HARMON: That is correct.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7.1.1 talks of local work area agreements effectively having the capacity to provide for further salary or wage increases. That is a manipulation of the words that are there, but I think it is a fair conclusion to draw from that provision. If that is the case, then can you explain to me how or what the intention of the parties is in relation to the use of local work area agreements so as to arrive at salary increases which exceed those in this particular agreement or, indeed, which might be less than those in this particular agreement?

PN32

MS HARMON: If it pleases the Commission, at present we have no local work area agreements in place that would have any impact on salaries or wages. It would be unlikely this would occur during the life of the agreement because they have fundamentally been used to formalise, in accordance with the hours of work clause, the hours of work which are determined by the local work groups to suit their particular work requirement. The local work agreements have been fundamentally to formalise those hours of operation so that everybody is very aware of what the requirement of those hours would be.

PN33

It would not be an expectation, certainly of the employer, that there would be anything entered into in those agreements that would fundamentally cause a wage increase to apply.

PN34

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 7.2.1 references the Council's policy and guidelines in relation to individual grievances. Can I assume that those guidelines are documented somewhere?

PN35

MS HARMON: Yes, that is correct. We have had a process in place for some time and it is reviewed regularly and available to all employees.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you, and what happens in that regard in the event that an individual grievance is not resolved?

PN37

MS HARMON: In the agreement, I know that it talks about groups - work groups or groups of employees but it is certainly not meant to discount any individual employee from having access to this process or to the process - - -

PN38

THE SENIOR DEPUTY PRESIDENT: I see.

PN39

MS HARMON: - - - that is outlined in the procedure.

PN40

THE SENIOR DEPUTY PRESIDENT: That access would be intended to apply only when the individual grievance resolution process was exhausted. Is that correct?

PN41

MS HARMON: We would expect that they would follow the individual grievance resolution that is already in place, thank you.

PN42

THE SENIOR DEPUTY PRESIDENT: 7.2.9, first of all, gives rise to a matter upon which I need both - all the parties to comment. Can I assume then that an employee could be represented in the various stages of the process by any union or any representative? My question has its basis in the freedom of association principles set out in part 10 of the Act.

PN43

MS HARMON: That would certainly be our intention that the person could choose the form of representation that they required.

PN44

THE SENIOR DEPUTY PRESIDENT: Mr Payne, are you able to concur with that indication?

PN45

MR PAYNE: Yes, sir, the ASU concurs with that, Commissioner.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you, and Ms Edwards?

PN47

MS EDWARDS: Yes, sir, the ANF concurs with that as well.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you, and a final question relative to the agreement and to this particular clause, the clause envisages that the matter would be referred to the Australian Industrial Relations Commission. I would like to know what it is that the parties want the Commission to do with such a matter. It is not a flippant question and there's no right or wrong answer. Of greater interest is whether the parties have a common view. Sometimes parties want the Commission to embark upon a conciliation process with arbitration as a last resort.

PN49

On other occasions, they want to stop the process at the conclusion of the conciliation process. Sometimes they come up with a different answer. As I said, I'm not particularly concerned as to what the answer is. I'm probably more interested in whether the parties have a common view, so to the extent that it is necessary, I would invite the parties to put your heads together and make sure you have a common view.

PN50

MS HARMON: If it pleases the Commission, after our discussion it would be our expectation that in the first instance, the Commission would conciliate and as a last resort, we would seek arbitration.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Harmon. Please don't feel obligated to have a dispute so as to exercise that requirement. I take it that the unions are in agreement with that position?

PN52

MR PAYNE: That is the ASU position, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you, and the nurses too? Thank you. On the basis of the information provided to me in the statutory declarations and further clarified today, I am satisfied that the agreement meets the requirements of the no disadvantage test. The agreement is of a duration envisaged by the Act. It contains the necessary dispute resolution procedure, the operation of which the parties have clarified today. The agreement does not contain provisions which are inconsistent with the Act.

PN54

I will certify the agreement with effect from today. The certificate which will be forwarded out to the parties within the next few days will identify the various issues upon which I've sort advice from the parties. In the event that more detailed information about the responses provided to me was to be required, the parties will need to consider the transcript of today's proceedings. I congratulate the parties on reaching this agreement and hope that it continues the harmonious relationship between the parties. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.25pm]