AG2002/6768, Transcript of Proceedings [2003] AIRCTrans 376 (7 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS

O/N VT1398

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2002/6768

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under 170LK of the
Act by Goethe-Institut Inter Nationes
for certification of the Goethe
Institut Inter Nationes Certified
Agreement 2002-2004

MELBOURNE

11.38 AM, THURSDAY, 23 JANUARY 2003

PN1

MR A. WOOD: I seek leave to appear as counsel for the Goethe Institut. With me is Dr Eppeneder from the Goethe Institut.

PN2

MR C. CLARKE: I appear for CPSU. No objection to counsel appearing.

PN3

THE DEPUTY PRESIDENT: Yes, Mr Wood.

PN4

MR WOOD: Your Honour, there are two matters that should be before the Commission. The first is, clearly, the application for certification of an agreement which is made under section 170LJ of the Act. I understand, of course, that that will be approved and consented to by the CPSU which would seek to be bound by that agreement. But there was - - -

PN5

THE DEPUTY PRESIDENT: I am sorry, you said section 170LJ of the Act - - -

PN6

MR WOOD: LK.

PN7

THE DEPUTY PRESIDENT: Yes. I thought you said LJ.

PN8

MR WOOD: Sorry, LK. And that should be supported, in addition, by a separate application that was made and filed with the registry at the same time, being an application for the determination of a designated award for the purposes of the no disadvantage test, being in section 170XF of the Act.

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR WOOD: I am not sure if that matter is before the Commission, but it should logically be so, to enable the Commission to review the material, at least with respect to the no disadvantage test. We say that that application was filed pursuant to rule 63 of the Act, with the registry on 24 December, 2002 - - -

PN11

THE DEPUTY PRESIDENT: Yes.

PN12

MR WOOD: - - - together with a request that - - -

PN13

THE DEPUTY PRESIDENT: Yes, there is an XF application.

PN14

MR WOOD: Thank you. Is that matter before the Commission or does it have a separate number, if that is necessary?

PN15

THE DEPUTY PRESIDENT: It is not necessary for it to have a separate number, Mr Wood.

PN16

MR WOOD: Okay. Perhaps if I could, very briefly, just address the Commission on that issue. The relevant agreement for certification applies to the Goethe Institut and its employees in both Sydney and Melbourne. The terms of the agreement are accompanied with the application, itself. In respect of those employees, in New South Wales, the relevant employees are currently covered by a State Clerical Award which is referred to in the statutory declaration but, of course, those Victorian employees, of whom there are just a handful, are not covered by either a Federal or State award and accordingly, the application is made for the designation of the Victorian Clerical and Administrative Employees Award 1994, that being a Federal award of this Commission. And the application is made on the basis that the work performed by the relevant employees covered by the proposed agreement, correlates very closely to the classifications which are contained within that award. We make that application and I understand it is not opposed by the CPSU.

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR WOOD: On the basis that that is the case, could I then take the Commission, briefly, to a couple of aspects that concern the application for certification. And if I may, just for the record, note a couple of minor corrections in either the statutory declaration of Dr Eppeneder or alternatively, typographical errors contained within the agreement itself. Can I first take the Commission to the agreement and at clause 6 of the agreement, in the subclause 6.2(b), there are provisions which deal with overtime. And, in that particular subclause, there is a reference about half way through subclause (b) that says:

PN19

Where overtime is performed on a public holiday, referred to in clause 9 of this agreement, employees will receive time off in lieu equivalent to double time...

PN20

Etcetera. The only area which I wish to correct in this respect, your Honour, is, that the reference to clause 9, in fact, is an erroneous reference and it should be a reference to clause 17 of the agreement - - -

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MR WOOD: Clause 9 is simply a reference to sick leave. So we should make that clear on the record, firstly.

PN23

THE DEPUTY PRESIDENT: Did you want to amend the agreement, accordingly, Mr Wood, or are you satisfied that - - -

PN24

MR WOOD: I think the record on transcript should be sufficient for the parties.

PN25

THE DEPUTY PRESIDENT: Yes. Because I am happy to take a replacement page if you - - -

PN26

MR WOOD: Well we would be more than happy, with the consent of the CPSU, to provide a replacement page. Yes. I think that might be easier in itself, if it is on the record, so there can no confusion.

PN27

THE DEPUTY PRESIDENT: Yes, yes. Well if you would provide my chambers with a replacement page with the amendments, then we will incorporate that into the agreement.

PN28

MR WOOD: Yes, thank you, your Honour. The second reference, and it is a minor one, is contained in clause 11 of the agreement, with respect to parental leave. There is the words, "(Victorian employees)" in brackets, those words were left in this draft in error, in a sense. There is clear agreement and it was the intention of the parties that parental leave provisions apply to all employees covered by the agreement, whether Victorian or New South Wales employees. And, again, we would request that we could provide a copy which makes that clear.

PN29

THE DEPUTY PRESIDENT: Yes. Well, similarly, I am prepared to accept a replacement page on that basis.

PN30

MR WOOD: Thank you, your Honour. And, finally, can I just clarify an inconsistency between clause 5 of the agreement and the statutory declaration of Dr Eppeneder. Clause 5 of the agreement states that:

PN31

Duration of the agreement shall be until its expiry on 31 December...

PN32

This year. There is in Dr Eppeneder's statutory declaration at paragraph 6.7, the reference that the agreement is to last for a period of two years from certification. That in fact is an error and can be corrected. Indeed, I am instructed to correct it for the record. It arose because the agreement, itself, provides for wage increases for a period of two years, indeed, retrospectively. But, nevertheless, it is the clear intention of the parties that the agreement does expire at the end of this year. So if I could simply clarify that. I don't believe it requires leave to amend any documents other than to clarify the intent of the parties.

PN33

THE DEPUTY PRESIDENT: Yes.

PN34

MR WOOD: In other respects, your Honour, we submit the agreement for certification by the Commission. It is an agreement made under section 170LK of the Act. There are, I am instructed, some nine employees who are covered by this agreement. The agreement was approved unanimously by employees but, nevertheless, it should be noted that the CPSU has, throughout the process, taken an active involvement, an active and a co-operative involvement throughout the process and indeed the Goethe Institut acknowledges that they make an application to be bound by the agreement and, of course, has no objection to that. In other respects the agreement has been before the Commission and we say, in all respects, it complies with requirements for certification. If the Commission pleases.

PN35

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Wood. Mr Clarke.

PN36

MR CLARKE: Yes, Mr Deputy President. Just to say that the CPSU supports the application. I do have, for the record, a letter in accordance with section 170M(3), from several members who are employees, seeking that the CPSU become bound by the agreement, which I will give you a copy. For the record, Commissioner, I would like to - well I can support the small changes that have gone through and if we can be provided with a copy of those alternative pages, that would be a good way of addressing those issues. Just to, I suppose, congratulate the staff and the CPSU members in the Institut, for their persistence in working for and getting to their first certified agreement, and to also thank management for the negotiations there. I think it has been a long process but it has gone pretty smoothly and we will be back in negotiations, again, reasonably soon I gather, for another agreement. But you should have CPSU statutory declaration on file, there - - -

PN37

THE DEPUTY PRESIDENT: Yes.

PN38

MR CLARKE: - - - and our management committee has endorsed CPSU becoming a party bound to the agreement.

PN39

THE DEPUTY PRESIDENT: I might just mark the letters you handed up, Mr Clarke, just for the purposes of the record.

EXHIBIT #C1 LETTERS HANDED UP BY MR CLARKE

PN40

MR CLARKE: Thank you, Commissioner.

PN41

THE DEPUTY PRESIDENT: Thanks, Mr Clarke. If I can deal with the application under subsection 170XF(2) of the Act, seeking the Commission determine an appropriate award or awards for the purposes of deciding whether this certified agreement passes the no disadvantage test. And in accordance with the submissions put to me, by the applicant, I will determine the Victorian Clerical and Administrative Employees Award 1994 as being appropriate for those purposes. I have had the opportunity to go through the documentation that has been provided to this Commission prior to today's hearing. I am satisfied that such documentation complies in all substantial respects with the relevant requirements of the legislation.

PN42

On the basis of that documentation and on the basis of submissions here, today, I am prepared to indicate that the Goethe-Institut National Certified Agreement 2002-2004 will be certified with effect from today's date, and also indicate that pursuant to the application made under section 170M(3) of the Act, that the Community and Public Sector Union will be bound as a party to that agreement. The agreement will expire on 31 December, 2003. If I can ask that those replacement pages that have been referred to on transcript, in respect of the minor amendments that had to be made, are provided to my chambers, today, and also that a copy be provided to the union bound.

PN43

MR WOOD: And is an electronic copy sufficient for the Commission's purposes?

PN44

THE DEPUTY PRESIDENT: It certainly is for our purposes, Mr Wood, yes. And I assume that would be the case for the union's purposes. Yes. I think, on that basis, there being nothing further, this matter is adjourned.

ADJOURNED INDEFINITELY [11.52am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 LETTERS HANDED UP BY MR CLARKE PN40