AG2002/5255, Transcript of Proceedings [2003] AIRCTrans 207 (21 January 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT1263

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2002/5255

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Ivanhoe-Diamond Valley Centre Inc for
certification of the Yess Industries Enterprise
Agreement
2002

MELBOURNE

2.19 PM, TUESDAY, 7 JANUARY 2003

PN1

THE COMMISSIONER: Mr Maloney, when this matter was before us on the last occasion it was simply stood over because a section 107 application had been made and as soon as I walked out of the Court room, I realised when I repeated the application to myself that one couldn't be made, because section 107 refers to an industrial dispute and there is not power vested with the President to grant or not grant an application, in dealing with these matters. So I have re-listed this matter. What I intend to do is to visit the workplace and speak with a number of employees. Is there a shutdown at all, or are they working currently?

PN2

MR MALONEY: Well, they have shut down for another - at least another week.

PN3

THE COMMISSIONER: Another week? Can you make contact with the management, and then with my Associate, and arrange a convenient time for me to come out? I have to deal with the genuine consent question. I am going to deal with it the same way as Senior Deputy President Drake did in the Wesley - you have got a copy of that by now, I trust?

PN4

MR MALONEY: I still haven't got that one, but I will find it.

PN5

THE COMMISSIONER: I will give it to you. It is PR Print 922335. 922335.

PN6

MR MALONEY: Does the Commission wish to go anywhere near this today, at all?

PN7

THE COMMISSIONER: No. I think - I have had the benefit of a number of your submissions, and I understand - the only thing that I would be interested in, probably at a convenient time, is the rate of pay. Now, as I understand that, that has been fixed, having regard to what has already been paid in the past. And the adjustment process - what is it? $1.41. $1.41 per hour.

PN8

MR MALONEY: Yes.

PN9

THE COMMISSIONER: And that will be varied in accordance with the percentage increase for the minimum adult rate as determined by National Wage Benches. Now, that is significantly less than the hourly rate under the relevant award. But then you go on to say that that is determined in-house by an examination of a number of factors, as I understand the position, isn't it?

PN10

MR MALONEY: Yes. Yes, the difficulty with this particular organisation, and it is - there are a number of it, around the country, is that they pay everyone the same rate of pay.

PN11

THE COMMISSIONER: I see.

PN12

MR MALONEY: Which of course has got to be tested severely. I am not too sure whether the Commission is across that another tender has gone out by the Department of Family and Community Services to do two things. One is to outsource the supported wage system, which operates in the open employment area.

PN13

THE COMMISSIONER: Yes.

PN14

MR MALONEY: And also to train, or put in a training package to train a number of people to in turn assess 17,000 people with a disability. All to be done on a very, very short timeframe. And, from my reading of the tender, this is where it is going to become more difficult in the future, there is no requirement for that to be incorporated in a certified agreement. So it is quite possible we will have arguments here, but - well, most places it will be done regardless, outside the - which gets us back to the initial problem again.

PN15

THE COMMISSIONER: Well, then that gets back to the question of the award, the proper award coverage, and the proper - and that is not in my hands. It might be in yours, but it is certainly not - I suppose I could call a matter on of my own motion. A proper award for the area, or a review of the supported wage award. But those are matters that I am going to have a look at in the very near - but in relation to this one, I will just want to meet with a number of the employees concerned, satisfy myself that they have understood what it is they have voted on. You might, as a matter of preparation, give consideration to whether or not any are subject to guardianship orders, because that might give rise to a question as to whether they should have participated in the vote, or if they did participate in the vote. But I thought I would bring it on and get these under way, and deal with it expeditiously.

PN16

MR MALONEY: Thank you, Mr Commissioner.

PN17

THE COMMISSIONER: Thanks, Mr Maloney. The matter is adjourned to a time and date to be fixed.

ADJOURNED INDEFINITELY [2.24pm]