AG2003/187, Transcript of Proceedings [2003] AIRCTrans 2540 (20 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N WT0369
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/187

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Chubb Security Australia Pty Ltd for
certification of the Chubb Security Australia
Pty Ltd - Family Law Courts Agreement 2003

PERTH

4.00 PM, THURSDAY, 5 JUNE 2003

PN1

MR UPHILL: I appear on behalf of Chubb Security Australia Pty Ltd and with me, MR STEPHEN CONNELL.

PN2

MR C. CASHFORD: I am a guards' representative from the Commonwealth Law Courts, or Family Law Courts, thanks.

PN3

THE DEPUTY PRESIDENT: Thank you Mr Uphill, Mr Connell and Mr Cashford. Mr Uphill.

PN4

MR UPHILL: Thank you, your Honour. This is an application which seeks the certification on an agreement pursuant to section 170LK of the legislation. We believe that the documentation that has been filed supports our view that the agreement ought to be certified by this Commission, given that in our assessment it meets the various requirements with the exception of one issue, that I will come to shortly, but I can indicate to you, by way of background, your Honour, that this agreement covers I think nine employees at the Law Court site here at Terrace Drive in Perth. The agreement itself is a fairly short agreement and that is largely because it operates in conjunction with the Security Officers WA Award 2002 and in clause 5 it indicates that it prevails to the extent of any inconsistency, so it doesn't entirely replace the award provisions, it only overrides the award provisions with respect to effectively two major areas.

PN5

The first is with respect to the ability of employees to work hours in excess of 80 per fortnight and where that occurs with their agreement they are paid at the casual hourly rate instead of the award overtime rate. The second departure from the award is in respect to the ability of employees to receive the pay out of annual leave in excess of 20 days, where they accumulate in excess of 20 days they can take that as a payment, rather than continuing to accrue annual leave. Your Honour, we see both of those changes as beneficial to employees and indeed I think the fact there is a valid majority of employees who have voted for the agreement confirms that view.

PN6

The area of the no disadvantage test is perhaps an issue I need to canvass with you and the payment of overtime at less than the award overtime rate, is clearly a provision which is not as good as the award provision, but we say that the provision allows employees to gain additional income where the employer would not otherwise offer that work to them and we say that situation is not contrary to the public interest and as you are aware there have been quite a number of similar agreements involving Chubb where a similar type of arrangement has been approved by the Commission.

PN7

The other aspect that I perhaps need to take you to, your Honour, is that this agreement was filed considerably out of time. The agreement was made on 25 March of this year and unfortunately it took us a bit longer than what we would expect to actually get it filed in the Commission, it wasn't filed until 6 May and I say that was well outside the 21 days required by the legislation. Consequently I would seek that an extension of time be granted pursuant to section 111(1)(R) of the legislation to allow the filing of the agreement out of time.

PN8

I would say in regard to that application, your Honour, that the employees on the site have not changed, as far as I understand, so we would say that the vote taken back in March would still be relevant in today's proceedings. There is still a valid majority of employees who voted in favour of the agreement, in fact I think eight employees voted positively and there was one employee, I think there was a bit of a mix up in his vote, but I can indicate to you that there was certainly at least eight employees who approved the agreement. Your Honour, I will leave it there and if there are any questions I will certainly try and answer them.

PN9

THE DEPUTY PRESIDENT: Thank you Mr Uphill. I wondered if Mr Connell would wish to add any comments in support of the agreements, it is not necessary but it is an opportunity?

PN10

MR CONNELL: No, sir.

PN11

THE DEPUTY PRESIDENT: And Mr Cashford?

PN12

MR CASHFORD: No, sir, everything Is fine as far as we are concerned.

PN13

THE DEPUTY PRESIDENT: Thank you.Pursuant to section 111(1) of the Workplace Relations Act 1996, I grant an extension of time for the application for the reasons given by the applicant. I now turn to the question of whether certification is not contrary to the public interest and I would ask whether you see the following factors as being relevant to my consideration of that question? On your submission as I understand it, overtime at casual rates is voluntary?

PN14

MR UPHILL: That is correct, your Honour, yes I confirm that.

PN15

THE DEPUTY PRESIDENT: And I understand your further submission was that the Full Bench found that it was not contrary to the public interest to approve an agreement which involved the payment of overtime hours at not less than the award rate, because employees understood the situation.

PN16

MR UPHILL: That is correct, your Honour, particularly in regard to an agreement involving Chubb Security at Darling Harbour in New South Wales in print R0015. Certainly that decision we believe lends support to the views that we've expressed here this afternoon.

PN17

THE DEPUTY PRESIDENT: Thank you, and I understand your submission to be that, in that particular decision it was found that there was general support by the employees for the preferred roster, that is your submission for this agreement?

PN18

MR UPHILL: That is indeed the case, your Honour.

PN19

THE DEPUTY PRESIDENT: Employees were able to work additional hours that would otherwise not be offered to them because of cost constraints to the employer.

PN20

MR UPHILL: Again the same factor is relevant here.

PN21

THE DEPUTY PRESIDENT: I wonder if you would give your submission in relation to whether certification would create a precedent?

PN22

MR UPHILL: Your Honour, we don't believe that if you are persuaded to certify this agreement that it does create a precedent. We say that having regard for the fact that each agreement that comes before the Commission needs to be assessed separately and each agreement needs to be looked at in terms of whether it meets the legislative requirements. So what we say is that the certification of this agreement, if that occurs, cannot be used in any later agreements that come before the Commission as justification for the approval of those subsequent agreements.

PN23

THE DEPUTY PRESIDENT: Thank you. I wonder if you would be able to indicate whether the agreement is relevant, or would have an effect on the business's financial viability, or have possible consequences for flow-on?

PN24

MR UPHILL: Your Honour, certainly the agreement puts the organisation in a far more viable position than if it had to operate on the basis of additional hours being paid at award rates. In terms of a flow-on, I go back to the comments I made a while ago in terms of suggesting that there is no precedent, there is no flow-on, we say, as part of this application.

PN25

THE DEPUTY PRESIDENT: Thank you. In relation to the principle object of the Act, I wonder if you would like to make any submissions in that regard?

PN26

MR UPHILL: Your Honour, we submit that the agreement does meet the objects of the Act, section 3 in particular sets out the various objects of the Act and it would be my submission that the agreement is consistent with what is object 3(b), which talks about:

PN27

Ensuring that the primary responsibility for determining matters affecting the relation between employers and employees rests with the employer and employees at the workplace or enterprise level.

PN28

I think it should be clear that the employer and the nine employees at the Federal Law Courts site have certainly taken responsibility for their own employment relationships and have jointly decided that a couple of variations, to the existing award provisions, is desirable as they see it, so we see the agreement as being consistent with that particular object of the Act. Likewise, object 3(c) which talks about:

PN29

Enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act.

PN30

Certainly we come before the Commission seeking the certification of a particular type of agreement, a section 170LK agreement. The employer is aware of other types of agreements and indeed Australian workplace agreements, I think, do operate in some other areas of the employer's establishment, not at this particular site but certainly to other employees and hence certainly the employer is aware of other forms of agreements that are possible under the legislation. Also I think this submission can be made that the agreement is an agreement that furthers object 3(d) of the legislation, 3(d) of the legislation indicates:

PN31

That an object is to provide the means for wages and conditions of employment to be determined as far ...(reads)... to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment.

PN32

We see this agreement as not running counter to that object and I make that argument on the basis that the agreement certainly recognises that it operates in conjunction with the existing award and there are only two areas where the agreement departs from the award. So certainly the parties to this agreement: the employer and employees, have developed an agreement which has as a final part of the foundation of that agreement, minimum standards that are spelt out in the relevant award. So again we would say that this agreement is consistent with object 3(d) of the legislation.

PN33

THE DEPUTY PRESIDENT: Thank you. I have no further questions. I would like to thank the applicant for the efficient responses to the correspondence of the Commission and for the thorough submissions. I turn to the certification of the agreement, noting that this is an application pursuant to Part VI(B), Division 2, section 170LK of the Workplace Relations Act 1996, to certify an agreement to be known as the Chubb Security Australia Pty Ltd Family Law Courts Agreement 2003. Having heard Mr J. Uphill, on behalf of Chubb Security Australia Pty Ltd, together with Mr S. Connell and Mr C. Cashford on behalf of the employees and having read the statutory declarations of Mr S. Connell on behalf of Chubb Security Australia Pty Ltd and Mr C. Cashford on behalf of the employees, I am satisfied that the agreement relates to a constitutional corporation namely Chubb Security Australia Pty Ltd, ACN 003 605 098.

PN34

The agreement was made in accordance with section 170LK and a valid majority of persons employed at the time, whose employment would be subject to the agreement, genuinely approved the agreement. The explanation of the terms of the agreement was appropriate and the employees understood the agreement. It includes procedures for preventing and settling disputes between the employer and the employees whose employment would be subject to the agreement, and it specifies a nominal expiry date, not more than 3 years, after the date on which it will come into operation.

PN35

There was general support by a majority of employees for the preferred roster. Employees can work additional hours offered, that would otherwise not be available to them because of cost constraints on the employer. And the explanations given by the deponents of the statutory declarations demonstrate that it would not be contrary to the public interest, pursuant to section 170LT(3), for me to certify the agreement, although certification would, on balance, result in a reduction in the employees overall terms and conditions of employment under the Security Officers Western Australian Award 2002.

PN36

I am further satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly the agreement will be certified with effect from 5 June 2003, to operate in accordance with its terms from the same date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [4.18pm]