AG2003/5682, Transcript of Proceedings [2003] AIRCTrans 3064 (17 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 3572

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2003/5682

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by The Australian Workers' Union and Another
for certification of the Curlewis Golf Club
- AWU - Grounds Staff Certified Agreement

MELBOURNE

10.03 AM, FRIDAY, 4 JULY 2003

PN1

MS Z. ANGUS: I appear on behalf of the Australian Workers Union.

PN2

THE COMMISSIONER: Thank you, Ms Angus.

PN3

MR G. MORRISON: I appear on behalf of Curlewis Golf Club.

PN4

THE COMMISSIONER: Thank you, Mr Morrison. Yes, Ms Angus.

PN5

MS ANGUS: Commissioner, this is an application to certify a division 2 agreement, the Curlewis Golf Club - AWU - Grounds Staff Certified Agreement 2003. Commissioner, all bar one of the statutory requirements have been met. The agreement was filed out of time. There was, I understand - Mr Morrison was actually overseas at the time that the agreement was being processed and that resulted in some delays at the company's end, at the club's end, but I understand that you have spoken to Mr Morrison and he can, I hope, verify this, that there has been no change at all in the levels of employment and therefore no impact on the valid majority and it is the case that both parties still wish to reach an agreement in these terms, so we make application for an extension of time.

PN6

In all other respects, the requirements of the Act have been met. The only thing that we would draw your attention to, Commissioner, is the dispute resolution procedure at clause 12 refers to the Commission playing a role in the resolution of disputes and what the parties mean by that and we would like to place this on the record, it is that if we can't resolve a dispute directly or by conciliation, the Commission would have the powers of private arbitration and the parties would be bound by any such determination. Unless there is any specific questions, we would rely on the statutory declarations and seek that the agreement be certified, if it please the Commission.

PN7

THE COMMISSIONER: Yes. I will ask Mr Morrison a question in a moment about the composition of the workforce but I will proceed on the assumption that the workforce is now the same as the workforce which provided a valid majority for the purpose of the approval of the agreement.

PN8

MR MORRISON: Yes.

PN9

THE COMMISSIONER: Yes, good. Is the company a respondent to the award referred to in clause three?

PN10

MR MORRISON: No, it is not.

PN11

THE COMMISSIONER: Is the company a respondent to any award?

PN12

MR MORRISON: Not to my knowledge.

PN13

MS ANGUS: Commissioner, the company is a member of - - -

PN14

MR MORRISON: Licensed Clubs Victoria.

PN15

MS ANGUS: Yes, Clubs Victoria and therefore are bound by awards that the Clubs Victoria is bound by, so they are bound, de facto, to the Sportsground Maintenance award. So in that respect, there is no need to make an application for - - -

PN16

THE COMMISSIONER: No, there is no need for designation. Now does that award contain a series of classifications?

PN17

MS ANGUS: It does. I am not sure of the degree of difference between - it looks like two-fold classification structure in this agreement and in the Sportsground Maintenance Award there is, I think, from recollection, a 5 level, 5 tier classification structure with the top being the trades rate. It is a similar sort of skills-based - or this is actually more a duties-based classification.

PN18

THE COMMISSIONER: What is the effect of the operation of the agreement if an employee performs work in other classifications, say above those provided for in clause 6? In this case it would be between 2 and 5, would it not?

PN19

MS ANGUS: My impression is, and I don't know, but my impression is that the duties outlined in clause 5.1 are comprehensive; that is they contain all the work tasks on site and - - -

PN20

THE COMMISSIONER: All of the work performed by - - -

PN21

MS ANGUS: By all of the employees combined, so the employees would fall into either one of those - - -

PN22

THE COMMISSIONER: Well I think that is not really relevant to the question that I have asked.

PN23

MS ANGUS: So what was the question?

PN24

THE COMMISSIONER: If you think that through, what you are really saying is that if employees perform the work designated in the classification, they will be paid in accordance with the relevant rate of pay in the agreement.

PN25

MS ANGUS: At clause 6, yes.

PN26

THE COMMISSIONER: The question I am asking is if they were required to perform duties above that level, as between classifications 3 and 5 - I take it the tradesperson level is the classification 5 that you referred to in the relevant award? Is that right?

PN27

MS ANGUS: To the extent that I remember that it is number 5 but yes, it would relate to the trades classification in the award.

PN28

MR MORRISON: It is actually only number three in the award. There is two maintenance employees or supervisors above tradesman rate.

PN29

THE COMMISSIONER: I see. So that all of the maintenance employee duties are comprehended in two classifications, 1 and 2.

PN30

MR MORRISON: Yes.

PN31

THE COMMISSIONER: And the highest of those is level 2?

PN32

MR MORRISON: That is right, yes.

PN33

THE COMMISSIONER: All right. I think that answers the question. I was getting the impression, Ms Angus, that there were several classifications between the level 2 and the tradespersons classification in the award, which meant that there was something of a hiatus or lacuna, if you like, between two and five on that interpretation but I think what Mr Morrison has told me is that the agreement covers all of the maintenance tasks and in fact employees that would perform work at level 1 will be paid for at the level 2 rate.

PN34

MR MORRISON: Level 2 rate, that is right.

PN35

THE COMMISSIONER: All right. And what is the difference between the rate in the agreement and the rate in the award for level 2 work?

PN36

MR MORRISON: Approximately 80 cents an hour.

PN37

THE COMMISSIONER: So the agreement provides a benefit of an additional 80 cents per hour?

PN38

MR MORRISON: This agreement, yes.

PN39

THE COMMISSIONER: For a level 2 employee and if a level 1 employee under the award was employed under this agreement - - -

PN40

MR MORRISON: It would be approximately $2.

PN41

THE COMMISSIONER: $2 an hour. So those are the benefits in the weekly wage rates, which the agreement confers upon the employees covered by its terms.

PN42

MR MORRISON: Yes.

PN43

THE COMMISSIONER: Very well. Now what is the case in relation to the tradesperson?

PN44

MR MORRISON: Tradesperson, approximately $1.18.

PN45

THE COMMISSIONER: An hour?

PN46

MR MORRISON: Yes.

PN47

THE COMMISSIONER: Above the existing award rate.

PN48

MR MORRISON: Yes.

PN49

THE COMMISSIONER: And are there are any provisions of the agreement which are less advantageous than the provisions of the award?

PN50

MR MORRISON: These clauses - I don't believe there is a clause here, Mr Commissioner, that is actually outside the terms of the award. We just wanted to combine - or spell out what we specifically wanted for the benefit of the club.

PN51

THE COMMISSIONER: Right. And what was that?

PN52

MR MORRISON: Currently employees work four eight and a half hour days and a four day. We wanted it changed to five equal days. We wanted it spelled out in the certified agreement, the ability to - - -

PN53

THE COMMISSIONER: So where is that spelled out?

PN54

MR MORRISON: Hours of work in clause eight, 8.81.

PN55

THE COMMISSIONER: And how does that compare with the relevant award provisions for the working of ordinary hours?

PN56

MR MORRISON: Under the award, there is several ways to work the 38 hours. We wanted to just - - -

PN57

THE COMMISSIONER: Is this one of the ways that the award provides for?

PN58

MR MORRISON: This is one of the ways, yes.

PN59

THE COMMISSIONER: All right. So you have formalised that in the terms of the agreement so that there could be no other way of working the ordinary hours during the life of the agreement except by - - -

PN60

MR MORRISON: Of this agreement.

PN61

THE COMMISSIONER: - - - a mutual agreement.

PN62

MR MORRISON: Mutual agreement, yes.

PN63

THE COMMISSIONER: All right. And that is why the agreement is fairly limited in its terms.

PN64

MR MORRISON: True. We only wanted to pick up two or three items and we were quite happy with the award.

PN65

THE COMMISSIONER: And otherwise the award will apply. Very well. Yes, well I think it is a relatively straightforward matter. This is an application for the certification of an agreement to be known as the Curlewis Golf Club - AWU - Grounds Staff Certified Agreement. I am satisfied that the agreement has been made in accordance with the requirements of the legislation, that its contents provide a commencement date and a duration which is consistent with the Act.

PN66

The agreement operates in relation and in conjunction with the Sportsground Maintenance and Venue Presentation Award 2001, an award binding upon the employer and therefore, for the purposes of the Act, a relevant award to the extent of any inconsistency as between the agreement and the award. The terms of the agreement are limited. I am satisfied that the terms of the agreement do not disadvantage the employees who will be covered by the agreement. On the contrary, it seems to me the agreement confers additional and more beneficial terms and conditions of employment, in particular wage rates in excess of those provided for by the award.

PN67

The application for the certification of the agreement was lodged out of time, however I am informed by Mr Morrison, on behalf of the employer, that the employees of whom a valid majority approved the agreement, are the same employees currently employed by the club and for that reason, I will extend the time for the filing of the application. The agreement contains a disputes settlement procedure. I have been told by Ms Angus, on behalf of the AWU, that in relation to clause 12 and in particular clause 12.2 and clause 12.3 thereof, the intention is that the Commission should have the power of private arbitration.

PN68

I understand that to be confirmed on behalf of the club. I treat that as an undertaking for the purposes of the Act. Accordingly, under these circumstances, the Commission is required to certify the agreement. I will issue an order to that effect. The order will come into effect on and from today's date and remain in force for the life of the agreement as specified in clause 2, which is that the agreement is to remain in force until 29 February 2004 and otherwise, in accordance with the Act. Thank you.

ADJOURNED INDEFINITELY [3.26pm]