AG2003/2837, Transcript of Proceedings [2003] AIRCTrans 3462 (14 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/2837

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Another for
certification of the City of Port Lincoln
and AWU Enterprise Agreement 2003

ADELAIDE

9.38 AM, TUESDAY, 29 JULY 2003

PN1

MR L. DEGENHARDT: I represent the workers on behalf of AWU in Port Lincoln City Council.

PN2

MR I. BURFITT: On behalf of the City of Port Lincoln.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Burfitt. Mr Degenhardt, do you want to open the proceedings today or have you delegated that job to Mr Burfitt?

PN4

MR DEGENHARDT: I would delegate that job to Mr Burfitt to open the proceedings and I will follow suit and any questions.

PN5

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Burfitt, are you aware that the job has been delegated to you?

PN6

MR BURFITT: Yes, Mr Deputy President. We have had a proposal for a new enterprise bargaining agreement that follows on from our previous agreement which expired 30 June. We have had a series of discussions with both Mr Degenhardt and our enterprise bargaining team, consisting of the outside employees, which worked through a number of meetings and developed the enterprise bargaining agreement which is proposed. It is very similar in majority of cases to our existing enterprise agreement that was previously in place.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Burfitt. Is there - there's nothing further you want to say?

PN8

MR BURFITT: Not at this stage.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Degenhardt.

PN10

MR DEGENHARDT: Yes, Commissioner, I agree with what Mr Burfitt has had to say, we have had regular meetings with both the - both of the parties like the management side and regularly with the outside staff and we reached a consensus that we were prepared to sign a new agreement before you and it is very similar as Mr Burfitt has mentioned to the one that was in place prior to this one.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Degenhardt, I'm going to ask Mr Burfitt a couple of questions about the agreement. I shall assume that you are in agreement with his responses unless you jump up and tell me. The questions that I have do not invite the parties to rewrite the agreement because this is the document that I'm told employees have voted on but instead they go to clarifying various issues now rather than leaving these questions such that I might regret that I didn't ask a question of clarification in the future. Mr Burfitt, can I take to clause 23 on page 12 of the document and in that clause which I take it, broadly reflects at least one previous agreement.

PN12

If I can ask you to turn to the top of the next page where there is reference to the employer requiring all new employees to become multi-skilled to the above minimum requirements during the first 12 months of employment and paid at grade 4 until they become skilled to the above level. This gives rise to two questions, the first is that, am I to presume that employees are then paid at the grade 4 level until such time as they achieve the multi-skilling requirements or are they paid at the grade 4 level for a period of 12 months?

PN13

MR BURFITT: Only Senior Deputy Commissioner, only until they receive the - those competency qualifications, and in most cases, I must say, that any of the new employees that we have taken on, in the majority of cases they have had previous experience and also the whole of those various competency qualifications.

PN14

THE SENIOR DEPUTY PRESIDENT: I see but if an employee didn't have that experience then they would need to have or gain two years experience before moving to the grade 5 level.

PN15

MR BURFITT: No, what we have done in the past is, we have paid at grade 4 until they achieved the articulated loader or fork-lift or light truck licence, so immediately they have obtained those licences we would pay at the higher level.

PN16

THE SENIOR DEPUTY PRESIDENT: I see. Clause 25 on page 13.

PN17

MR BURFITT: Yes.

PN18

THE SENIOR DEPUTY PRESIDENT: In the second paragraph provides for the employee to seek an official from the union to be present in place of the workplace representative, can I have an indication or an undertaking from the council to the effect, that if an employee was not a member of the AWU or possibly even not a member of any union, then they could have a representative of their choice present in those discussions.

PN19

MR BURFITT: Yes, in any situation where that process occurred we would in writing advise the employee of their opportunity to have a person of their choice present at all times.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to clause 29 on page 15 and in particular the subclause 2.

PN21

MR BURFITT: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: And ask you to explain the effect or intention underpinning the last sentence in subclause 2. This is the sentence that reads:

PN23

Where the award and agreement make provision for alteration of any of ...(reads)... will be deemed not to have significant effect.

PN24

MR BURFITT: In other words, what we are looking at there is, where the award is changed or the agreement is changed by the agreement of all parties that that in itself will not form a significant effect. In other words, it will be by consensus of all parties.

PN25

THE SENIOR DEPUTY PRESIDENT: I see. So notwithstanding the words; "where the award and agreement", am I to understand the intention of the parties to be such, that if either the award or the agreement allowed for arrangements to be reached in relation to those matters, then those arrangements would not be deemed to be significant effects in terms of the management of change clause 29?

PN26

MR BURFITT: That is right, because we would follow a consultation process and agreement to make that actual alteration, that would be agreed by all parties.

PN27

THE SENIOR DEPUTY PRESIDENT: Clause 37 on page 18.

PN28

MR BURFITT: Yes.

PN29

THE SENIOR DEPUTY PRESIDENT: The first of the dot points reads:

PN30

Whole AWU staff meeting.

PN31

Now, can I presume then that is a shorthand way of describing the outside staff, such that it means, those people who would be covered by their award as defined in the agreement. That is - - -

PN32

MR BURFITT: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: - - - it does not just apply to AWU members.

PN34

MR BURFITT: No, no, it applies to all. There is one work team, as far as employee communication there is one work team which consists of all of the outside employees and you are correct, we use that as a definition meaning, all of the outside work-force.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Burfitt. Now, Mr Degenhardt, just so that I can be absolutely sure, can I take it you are in agreement with all of Mr Burfitt's responses to my questions?

PN36

MR DEGENHARDT: Yes, Commissioner, I think that the parties - the Port Lincoln City Council and the AWU have reached consensus on this agreement and I entirely agree with what Mr Burfitt has referred to you, Commissioner.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. On the basis of the information provided to me today together with the statutory declarations, I'm satisfied that the agreement was reached through a process consistent with the Act, so that employees were able to make an informed choice to vote in favour of it. I'm also satisfied that the agreement itself meets the requirements of the Act, insofar as the no disadvantage test is concerned, that it is of a duration envisaged by the Act and it contains the necessary dispute resolution provision and the operation of which the parties have clarified today. I will certify the agreement with effect from today.

PN38

That certificate will be sent out to the parties within the next few days. It will outline the various clauses upon which I've sought clarification or undertakings, it will not detail the responses that I'm given. If ever it were necessary to have regard to those responses you would need to refer back to the transcript of today's proceedings. I congratulate the parties on reaching this agreement and trust that it will continue that tradition of benefiting both the employer and the employees. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [9.49am]