AG2002/754, Transcript of Proceedings [2003] AIRCTrans 209 (21 January 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT10142

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2002/754

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Central Australian Aboriginal Congress
Incorporated and Others for certification of
the Central Australian Aboriginal Congress
Certified Agreement 2002

MELBOURNE

11.18 AM, TUESDAY, 7 JANUARY 2003

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
AND RECORDED IN MELBOURNE

PN1

MR R. WHARTON: I appear on behalf of the Central Australian Aboriginal Congress.

PN2

MR G. HULL: I appear for the applicant union.

PN3

MR P. NIEUWENHOVEN: I appear for the Australian Nursing Federation NT Branch, with MS A. WALLACE.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, who would like to lead off?

PN5

MR WHARTON: Your Honour, I think it has fallen to me to do most of the application. Sir, this is an application by the Central Australian Aboriginal Congress under division 2 of the Workplace Relations Act for the certification of an agreement. And accompanying this application is a statutory declaration on Form R28, signed by Ms Stephanie Bell, who is the Director of Congress, and that statutory declaration provides details of the agreement and the negotiation process. Before certifying agreement the Commission must be satisfied the requirements of section 170LT of the Act are met and, sir, I would like to make submissions on each of those aspects.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN7

MR WHARTON: Firstly, the agreement must pass the no disadvantage test. It is our submission that the wages and conditions provided for in this agreement are superior to the wages and conditions provided for in either of the two underpinning awards of this agreement, that is, the Central Australian Aboriginal Congress (Northern Territory) Award 1983 or the Aboriginal Community Controlled Health Services (Community Health Nursing Staff) Award 2002.

PN8

The agreement provides for a wage increase of 13 per cent over the life of the agreement and for lowest paid workers an additional increment is also paid. Your Honour, negotiating this agreement we were aware that recent national wage case increases which have been on a dollar basis have sometimes got the ability to change matters, particularly when increases are awarded on a percentage basis. Clause 10 of the agreement, Quantum and timing, sets out the way the increases will be paid and, further, an assurance is given there, sir, that if during the life of the agreement the wage rates for any position should fall below the level of wage rates contained in the award Congress will adjust the wage rates to the award level.

PN9

On this basis we submit that the agreement does pass the no disadvantage test. Secondly, sir, the agreement is made under section 170LJ and a valid majority of persons have, generally, made the agreement. The agreement was negotiated through a committee process and, sir, I can indicate that that was a fairly long and arduous process. We commenced this about November 2001. Once a draft agreement was reached each employee was given a copy of the agreement and a ballot was conducted. A total of 73 ballot papers were returned with a "yes" vote of 69 and 4 votes were "no". On this basis we say that it has been conducted and endorsed by a valid majority of employees.

PN10

The question needs to be satisfied that there has been an explanation of the terms of the agreement. Sir, I can advise the Commission that following the negotiation of the draft agreement a series of information sessions were conducted. These were conducted during employees paid time. There were four separate sessions. At the information sessions employees were given a copy of the draft agreement and the differences between the draft agreement and the current agreement were explained. Overhead projector transparencies were prepared of the way in which the new agreement varied from the old agreement and employees were given the opportunity to ask questions and to discuss the agreement.

PN11

In one particular circumstance, sir, that is for the employees engaged in the Child Care Branch of Congress where those employees can't leave their duties during the hours in which they are caring for the children, a special information session was held after hours but at paid time so that all of the employees of the Child Care Centre could attend an information session and be informed of the new agreement. Everybody who attended those sessions was given several sheets of paper which outlined the major differences between the old agreement and the new agreement.

PN12

The agreement must contain dispute settlement procedures and this agreement does have a dispute settlement procedure at clause 17. The agreement must specify a nominal expiry date of not more than three years. Clause 7 of the agreement indicates that the agreement will operate for a period of three years from the date of certification by the Australian Industrial Relations Commission. Further, sir, it is submitted that there is nothing in this agreement which contravenes part XA of the Act. On the basis of the information provided to the Commission we would ask that the Commission certify this agreement. Sir, that concludes my submission and I would be able to provide answers to any questions that you may have about the agreement or the negotiation process.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wharton, that is quite comprehensive. Mr Hull, is there anything you wish to put?

PN14

MR HULL: On behalf of the LHMU we concur, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Nieuwenhoven?

PN16

MR NIEUWENHOVEN: Yes, your Honour. We have been involved for quite a lengthy time negotiating this agreement. We concur with what Mr Wharton has said this morning and whilst we only have a few members that are involved in this agreement, certainly, we would concur with Mr Hull and Mr Wharton that this agreement be certified in the terms that have been put to you today, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. There is one issue which doesn't go to the certification but more procedural. The ANF, in its stat dec, indicated that the agreement was made in relation to a bargaining period, 2002/1008. The Congress statutory declaration doesn't indicate any bargaining period. Mr Nieuwenhoven, I take it that you maintain that position, there was in fact a bargaining period which was lodged, the Commission records indicate, on 3 June 2002 and by virtue of section 170MW of the Act certification of the agreement will have the effect of ending that bargaining period?

PN18

MR NIEUWENHOVEN: That is our position and that is a correct assumption, your Honour. We certainly did believe that it does end the bargaining period and we did lodge the documents according to the Workplace Relations Act.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And in respect to ALHMWU there is no mention of a bargaining period. The Commission's records have on it a bargaining period between - lodged by the ALHMWU in respect to the Central Australian Aboriginal Congress dated 24 December 2001. Mr Hull, is that a bargaining period which had application in respect of the employees covered by the agreement?

PN20

MR HULL: Your Honour, I must apologise. I have only just become aware of this certification late yesterday afternoon. Our industrial officer that was handling the certification is away on recreation leave at the moment so I am not familiar with it and I apologise for that.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Wharton, are you able to shed any light on that? As I say, it doesn't go to the certification of the agreement but it is my practice to note for the record that where a bargaining period is ended pursuant to section 170MV by virtue of certification of the agreement I like to note that for the record so that in the event that any issue arises out of that bargaining period in future there is a record of the effect of section 170MV and the certification of the agreement having the effect of ending the bargaining period. Mr Wharton?

PN22

MR WHARTON: Yes, your Honour. It is my understanding that there was a bargaining period. That was initiated fairly early in the piece but this agreement now would conclude that bargaining period in respect of both the ANF and the ALHMWU.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that, Mr Wharton. Very well. This is an application pursuant to section 170LJ of the Workplace Relations Act 1996 for certification of the Central Australian Aboriginal Congress Certified Agreement 2002, an agreement entered into between the Central Australian Aboriginal Congress Incorporated, the Australian Liquor, Hospitality, Municipal Workers' Union and the Australian Nursing Federation.

PN24

Having regard to the statutory declarations filed in this matter by Ms Bell for the Congress, Mr Jones for the LHMWU and Mr Nieuwenhoven for the ANF and the submissions put today by Mr Wharton, Mr Hull and Mr Nieuwenhoven, I am satisfied that each of the relevant requirements of the Act and rules of the Commission has been met and that I should certify the agreement. Pursuant to section 170LT of the Act I now certify the agreement in the terms entered into between the parties.

PN25

The agreement shall come into force from today's date, 7 January 2003, and will operate in accordance with clause 7 of the agreement for a period of three years from the certification. Accordingly, it shall operate until 6 January 2006. I note for the record that pursuant to section 170MV of the Act certification of the agreement has the effect of ending bargaining periods 2002/1008 in respect to the ANF and 2001/2967 in respect of the ALHMWU. I will now adjourn these proceedings. A copy of the certificate will be forwarded to the parties in due course. Thank you.

ADJOURNED INDEFINITELY [11.30am]