AG2003/5641, Transcript of Proceedings [2003] AIRCTrans 2893 (11 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/5641

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Serco Australia Pty Ltd re the Gold Coast
Airport and Staff Enterprise Agreement 2003

BRISBANE

12.32 PM, THURSDAY, 26 JUNE 2003

PN1

THE COMMISSIONER: Thanks, everyone. Take a seat. If I could just take some appearances, thanks.

PN2

MR N. TIMO: Good afternoon, Commissioner. My name is Timo, initial N. I'm appearing on behalf of HR Outlook Proprietary Limited, who is representing Serco Australia.

PN3

THE COMMISSIONER: Sorry, I didn't quite hear you then.

PN4

MR TIMO: HR Outlook Proprietary Limited, representing the employer in this matter. I might advise, as a matter of courtesy, I have with MR BARRIE BRIGGS, who is the Serco Australia Manager for the complex at the moment, and I have with me some employees as well. The normal course of events is that I don't enter an appearance on behalf of the employees but make them available to the Commission should the Commission wish to ask any questions of them. Do you want me to list the employees that we have here?

PN5

THE COMMISSIONER: No, not at the moment, Mr Timo. Mr Briggs is the author of the statutory declaration.

PN6

MR TIMO: That is correct.

PN7

THE COMMISSIONER: That's correct, is it? Good. No, thank you.

PN8

MR TIMO: And he is here in the courtroom.

PN9

THE COMMISSIONER: That's all right. Mr Timo, if you can just - there are a couple of matters. I've read the agreement and I've read the statutory declaration, and I have also examined the details of the ballot that were provided for me, and also the statutory declaration of the person conducting the ballot, so you don't need to go over all of that ground. I don't have a copy of what was at point 8 of your - there was a document with the number 8 on it saying, "Copy of table of comparison between proposed agreement clause and applicable award conditions, no disadvantage test, to be filed shortly." I don't have a copy of this at all.

PN10

MR TIMO: Commissioner, I do regret my typing is extremely challengeable, but I had it faxed through to your associate yesterday through an abundance of caution.

PN11

THE COMMISSIONER: Oh, sorry. How did it come to her? By email, was it?

PN12

MR TIMO: It was faxed yesterday afternoon.

PN13

THE COMMISSIONER: Well, she has been ill, so you don't have a copy that you could hand up to me by chance?

PN14

MR TIMO: Yes.

PN15

THE COMMISSIONER: Oh, sorry.

PN16

MR TIMO: I gave it to your stand-in associate, for want of a better word, before we commenced.

PN17

THE COMMISSIONER: Thanks, Mr Timo. Mr Timo, you might just - I'll do two things at once. If you just want to give me some general rundown on the agreement and the work, particularly if you can just tell me a little bit about the business and the work that's conducted which the agreement is essentially capturing, then take me through the agreement to the extent that you consider necessary, assuming, as you rightly can, that I am familiar with the contents of the file. I will just also have a quick look at the comparative document you have handed up, which will assist me in the reading that I've already done today.

PN18

MR TIMO: Thank you, Commissioner. By way of introduction, this is a second-generation agreement on behalf of the employer, being Serco Australia. It is originally a parent company headquartered in the UK, and it serves as a contractor for airport services in Australia as well as other overseas countries.

PN19

As the Commission would be familiar, in the flurry of deregulation in the 1980 and 1990s, there was a substantial number of government-owned enterprises that were transferred across to private sector, including the airports. The Gold Coast Airport was once owned and operated by the Commonwealth, and around 1995/96 it was transferred across to the private sector to be run and operated by the Gold Coast Airport Limited. Serco contracts to the Gold Coast Airport Limited to provide a number of contracting services such as ground maintenance, maintenance and repair, and administrative work.

PN20

The nature of this agreement - and we do appreciate very much our request to have the agreement heard as expeditiously as possible - reflects company restructuring that's going to occur at the airport, which is based in Coolangatta, at the end of the financial year, involving a termination of the existing Serco Australia contract and a transfer of the work that they would have done to the new employer, being the Gold Coast Airport Limited.

PN21

The work that's done essentially covers the maintenance and the repair and the administration of the airport. It does not cover the types of operations that would normally be carried on by either the Commonwealth or the airlines that operate from the airport. They would employ their own staff as ticket sellers and so on. So this agreement, if approved, will cover the work that was previously performed by Serco and is quite distinguishable from the other work at the airport.

PN22

The reasons for trying to put an agreement in place at the moment is to ensure that there is a smooth transfer and hand-over between the cessation of the commercial contract and the re-engagement of staff by the Gold Coast Airport Limited. The ultimate aim has been of both the employer as being the Gold Coast Airport and Serco Australia to ensure that entitlements as well as opportunities to continue with employment and service continuation transfer across in the restructure, and we reply upon this agreement in order to put that in place.

PN23

Formerly, the industries of airports, for want of a better word, which includes a whole range of activities from security to maintenance, repair, hotel-type activities such as the serving of food and beverages - much of that is contracted out throughout Australia. Historically, the employment conditions of employees employed directly by airports were covered by the Federal Airports Corporation Award.

PN24

That award was superseded some time ago in terms of the transfer of work through to Serco Australia, and we have done a fairly reasonable job, I think, on behalf of both the employees and the employer, to try and collapse the Airport Corporation Award conditions which grew out of a public sector environment into a more manageable workplace-specific agreement to apply solely with the employer's operations at Coolangatta. And for that reason we have attempted to put in place an agreement that reflects the needs of the employer specifically at the Gold Coast Airport. Does that give the Commission a bit of a background?

PN25

THE COMMISSIONER: Yes, it does; it's helpful. I may need some other clarification. Just coming to Mr Briggs' statutory declaration, at Part 6.1 thereof, Mr Briggs declares that:

PN26

Currently, Serco Proprietary Limited -

PN27

well, it specifies the award which is relevant, but then it says:

PN28

Currently, Serco Australia Proprietary Limited operates under the Serco Airports Enterprise Agreement 1999 to 2001, whose nominal expiry -

PN29

so the nominal expiry date has passed.

PN30

MR TIMO: Yes.

PN31

THE COMMISSIONER: Okay, sorry, that explains it. I misread the nominal expiry date. I thought it was 30 June this year - - -

PN32

MR TIMO: No.

PN33

THE COMMISSIONER: - - - and I was wondering about the interaction, but that's all right; it's 2001. That clarifies my hasty reading.

PN34

MR TIMO: No, Commissioner. The reason we put that in was through an abundance of caution for two reasons.

PN35

THE COMMISSIONER: No, that's all right.

PN36

MR TIMO: One, to let the Commission know that there is an agreement currently there which has passed its nominal expiry date, and the other issue that we wanted to simply raise on the transcript is that, should the Commission approve the present proposed agreement, it would supersede the previous agreement that applied, that is, agreement S2548, document R6949, because that is a multi-site agreement which was approved by - I believe it might have been Commissioner Edmonds, but I - sorry, yes, Redmond, in Sydney in July 1999. Now, I don't understand at this stage the continuation of that agreement in terms of outside Coolangatta Airport, or the Gold Coast Airport as we now know it, so I can't indicate whether that agreement is still current at other airports.

PN37

THE COMMISSIONER: I presume people just displace it as they make new agreements.

PN38

MR TIMO: Yes. So we inserted that into the affidavit out of an abundance of caution.

PN39

THE COMMISSIONER: Okay, I understand.

PN40

MR TIMO: So that the Commission was aware of what we were trying to achieve.

PN41

THE COMMISSIONER: No, that's all right. Are there any issues that - I've had a chance to have a look at the no disadvantage test. Are there any submissions you want to put to me on that comparative table or more generally about the global nature of the no disadvantage test vis-a-vis the agreement?

PN42

MR TIMO: Only that a best-efforts approach has been taken to try and collapse what is a fairly sophisticated public sector based award, which is the Federal Airports Corporation Award, into a genuine workplace agreement format, so that clearly there are a number of provisions under the award that will never be applied at this airport, and there are also issues relating to a very, very broad classification structure in the federal award that will never be used.

PN43

THE COMMISSIONER: Is this a comprehensive agreement?

PN44

MR TIMO: It is a comprehensive agreement - - -

PN45

THE COMMISSIONER: It is.

PN46

MR TIMO: - - - that will blot out - - -

PN47

THE COMMISSIONER: Fully displaces the award.

PN48

MR TIMO: - - - all awards, previous agreements, as well.

PN49

THE COMMISSIONER: That's specified in the agreement, is it?

PN50

MR TIMO: Yes, Commissioner. If I could invite you to have a look at clause - I think it's - - -

PN51

THE COMMISSIONER: It's clause 1.3(2).

PN52

MR TIMO: Yes, 1.3, yes.

PN53

THE COMMISSIONER: And it reads:

PN54

This agreement shall supersede all awards, agreements and any other unregistered agreements -

PN55

etcetera. Yes, that satisfies me on that issue, Mr Timo.

PN56

MR TIMO: In relation to the requirements of the Act, we have provided the Commission with as much material as we can. We have - - -

PN57

THE COMMISSIONER: Yes. Look, you don't need to take me through LK and LT. I have looked at your statutory declaration and your agreement per se, and I have no difficulties on that front. In respect of LK(4), you declare in your - and I just want to ask you for clarity purposes, and I don't there will be a problem. LK(4) regarding the - that's in respect of the requirement to - that an organisation is entitled to represent employees. You ticked that, yes, your notice of the intention to make the agreement specify that employees had a right to representation and they could organise that if they so wished by contacting their employee organisation. It's just that I don't have the notice before me, but you've ticked it, so I presume - - -

PN58

MR TIMO: Oh, the notice, Commissioner, is in the documentation that we sent you.

PN59

THE COMMISSIONER: The actual notice for the - - -

PN60

MR TIMO: I believe it might be item 4.

PN61

THE COMMISSIONER: It's on the index.

PN62

MR TIMO: Yes, I'm sorry. I'm not a - - -

PN63

THE COMMISSIONER: That's all right.

PN64

MR TIMO: I'm not an expeditious typist, Commissioner.

PN65

THE COMMISSIONER: Yes. See, what happens is - see, I go to item 3 is the - so it's at the back of the affidavit.

PN66

MR TIMO: Yes.

PN67

THE COMMISSIONER: Here we go. In my excuse, it's a very extensive documentation, Mr Timo, which I'm impressed by. "Notice to staff." Let me have a look.

PN68

MR TIMO: I appreciate your saying that in front of my client.

PN69

THE COMMISSIONER: That's all right. Yes, you're quite right. It does meet explicitly the requirements of LK(4) and I have no doubt about that, so that puts that matter to rest as well. Sorry. Any other matters you want to put to me, Mr Timo?

PN70

MR TIMO: Other than, Commissioner, the agreement in terms of the statutory tests, it has a provision for dispute settlement in clause 2.1, and I might indicate that the employer is quite agreeable in the proper course of events that matters that can't be settled can find their way through to the Commission for independent mediation and arbitration through the Commission.

PN71

THE COMMISSIONER: I recall that that clause says that the matter may be referred to the Commission for a conciliation and, if necessary, for arbitration, and I presume "if necessary" means if it's not settled at conciliation.

PN72

MR TIMO: Yes. I understand that other Commissioners have been looking at the constitutional issues associated with that. My client has lived with the Commission for many years and intends to continue to do so. The agreement also has in its scope a - - -

PN73

THE COMMISSIONER: I should say so do I.

PN74

MR TIMO: - - - has provisions for a nominal commencement date and nominal expiry date, and the agreement is in the standard format that the Commission is familiar with. Other than that, I don't know if I can help the Commission much further.

PN75

THE COMMISSIONER: There's just one outstanding question, just on the no disadvantage test, that's raised in Mr Briggs' statutory declaration at Part 6.4, and it's no more than just an explanation for me; it's not a query of any sort. In the right-hand side column - and this is going to the issue of was there any reduction. Whilst it's asserted that there is no reduction at all vis-a-vis the award, there is nonetheless a qualification on a particular condition regarding the call-out provisions. I am just wondering whether that might be able to just be briefly explained to me.

PN76

MR TIMO: Commissioner, the call-out provisions under the Federal Airports Corporation Award, with all due respect to the drafters of that award, is at times incomprehensible, and the reason I say that is that it provides for a whole different range of instances where call-outs would occur. They make distinction between call-back, call-out, being on call, being on standby, being a home duty officer, on close call.

PN77

These sorts of provisions may have had some relevance perhaps at much larger airports where this award would have applied, but what we have done at the Gold Coast Airport at Coolangatta is simply to have two classes of call-outs: one is an on-call person who receives a certain allowance and certain entitlements for making themselves available, and then an emergency call-out, which is the only two call-outs that the airport experiences. And that's why we've indicated that there is no reduction and that we have ensured that no employee goes backwards on the global test. But we thought as an abundance of caution that we would simply indicate - - -

PN78

THE COMMISSIONER: So you've just rationalised the categories - - -

PN79

MR TIMO: Yes, into two, two logical ones.

PN80

THE COMMISSIONER: - - - in a sense, rather than have to manage a multiple number of arrangements. Okay. That's all right.

PN81

MR TIMO: I could indicate that the award that applied, the Federal Airports Corporation Award, could apply to an airport that employs a thousand employees and an airport that employs 40 employees, so there are these reasons why we have harmonised and rationalised into what we think is a logical way of dealing with call-outs.

PN82

THE COMMISSIONER: Good. Thanks, Mr Timo. Look, on the basis of the documentation that is before me and the submissions that you have made today, I indicate that I will certify the agreement as of effect from today's date to operate on its terms for a period of three years from today's date. I am satisfied that the agreement meets the requirements of the Act, and I am assisted in respect of the operation of the no disadvantage test by the provision of your comparative table, which I incorporated as part of this file. Are there any other matters that you wish to put to me at all about the agreement?

PN83

MR TIMO: No, thank you. Thank you very much, Commissioner.

PN84

THE COMMISSIONER: On that basis, it is certified and we are adjourned. Good luck with your agreement.

ADJOURNED INDEFINITELY [12.48pm]