AG2003/6697, Transcript of Proceedings [2003] AIRCTrans 4096 (17 September 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N 9736

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

AG2003/6697

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Faulding Healthcare Pty Limited for
certification of the Faulding Healthcare
(Launceston, Tasmania) Enterprise
Agreement 2003

LAUNCESTON

9.30 AM, MONDAY, 1 SEPTEMBER 2003

PN1

MR A. CAMERON: I appear on behalf of Faulding Healthcare Pty Limited, the employer.

PN2

MS K. WOOD: I am from the National Union of Workers, Central Branch.

PN3

MR A. WRIGHT: I appear on behalf of the employees Tasmania of Faulding.

PN4

MS V. LYALL: I am an employee of Faulding.

PN5

THE DEPUTY PRESIDENT: Thank you. All right. Who wants to talk to the agreement?

PN6

MR CAMERON: Thank you, Commissioner - sorry, Deputy President. Deputy President, this is an application under 170LK of the Workplace Relations Act for certification of the Faulding Healthcare (Launceston, Tasmania) Enterprise Agreement 2003. The agreement shall be a two-year agreement with a commencement date of 1 July 2003 and a termination date - nominal termination date of 30 June 2005.

PN7

The agreement is to be read in conjunction with the Wholesale Pharmaceutical Award, which is an award of the Tasmanian Industrial Commission. The points of relevance, Deputy President, in relation to the agreement: at clause 9.2 there is provision in the agreement to retain State equity in that there is another branch of the company in Moonah, Tasmania that provides that if matters change in Moonah for whatever reason we decided with our agreement that negotiations will re-open for this agreement to make sure that the parties are not disadvantaged as compared to their southern counterparts.

PN8

The disputes settlement clause is at clause 14 of the agreement, which would comply with the requirements under the Act. The other points of relevance are at clause 17.3 and 17.4 under the definitions of casual employment. It makes provision for casual employees, or existing casual employees who are averaging 16 hours per week to make application to have the option to convert to permanent employment after six months' employment. 17.3.5, new casuals who start after the date of certification of the commencement of this agreement who are averaging 16 hours per week will have the option of converting to permanent employment after nine months of so-called casual engagement.

PN9

THE DEPUTY PRESIDENT: 17.4?

PN10

MR CAMERON: That makes provision - there are employees who are employed through, I would imagine, labour hire type arrangements or contracting companies and they do have the option as well, provided that - sorry, they don't have the option, but they must - would be covered by the agreement.

PN11

THE DEPUTY PRESIDENT: I don't know whether that is allowed, that is all, that provision.

PN12

MR CAMERON: In terms of - yes, it would be contracting - looking at it, it would be contracting outside what we can contract to do with employees.

PN13

THE DEPUTY PRESIDENT: That is right. It is not an employee/employer relationship.

PN14

MR CAMERON: No.

PN15

THE DEPUTY PRESIDENT: It is difficult to ignore it these days.

PN16

MR CAMERON: Yes.

PN17

THE DEPUTY PRESIDENT: These things ..... asked of people under the provision. It may be that if the parties agree to remove that and they can maintain their agreed position by exchange of letters.

PN18

MR CAMERON: Yes. I don't think I would need instructions because it is contrary to the Act - - -

PN19

THE DEPUTY PRESIDENT: That is right. Yes.

PN20

MR CAMERON: - - - and I can consent to that now and withdraw it from the agreement to enable it to be certified and we will confirm with the employees and the union that it is the organisation's intention not to vary from the stated intention.

PN21

THE DEPUTY PRESIDENT: I mean, I know what the intent is, but as I say, it would possibly not satisfy the Act, but certainly your agreed position can be by exchange of letters and have the same end result.

PN22

MR CAMERON: Yes. The wage rates are set out at clause 21 under Part V, wages and related matters. It provides for a 5 per cent increase from 1 July 2003, being the commencement date of this agreement, with a further increase of 4 per cent on the first full pay period after 1 July 2004. It also makes allowance that individuals can negotiate directly with the employer for rates that may differ from those set out, but certainly not less than those set out.

PN23

THE DEPUTY PRESIDENT: Can you - clause 21.1 goes up to pay rate 3. Appendix A seems to go up to pay rate 4 and pay rate 5. Can you explain - - -

PN24

MR CAMERON: It is not my agreement, but - - -

PN25

THE DEPUTY PRESIDENT: Maybe the employees can. The other question that I had was that the rate seems to satisfy the no-disadvantage test, from my observation. The only thing I couldn't work out was what, on pay rate 1, which classifications in the award that related to and so on.

PN26

MR CAMERON: Yes. There is a comparison statement that was provided with the statutory declaration that I am aware of.

PN27

THE DEPUTY PRESIDENT: Is there?

PN28

MR CAMERON: The schedule - - -

PN29

THE DEPUTY PRESIDENT: I see, yes.

PN30

MR CAMERON: On the very last page it talks about earnings comparison. I note that there are no transport workers employed which are classifications under the Wholesale Pharmaceutical Award. There has to be reasons why there may be grades 5 and 6 referred to in the appendix of the agreement. I - - -

PN31

THE DEPUTY PRESIDENT: Whether that just ties in with the AFS competency standards or not I don't know, but at any rate - - -

PN32

MR CAMERON: Yes, I think they do tie in with - looking at the competency standards guide that are under the award - - -

PN33

THE DEPUTY PRESIDENT: Yes, there are meant to be 4 and 5 in this, but - - -

PN34

MR CAMERON: I think are more competencies than employment classifications.

PN35

THE DEPUTY PRESIDENT: Okay. The only other question, Part VII - leave of absence and public holidays - mine says "pubic" holidays, I presume it is meant to be "public".

PN36

MR CAMERON: It is either on maturity or holidays or leave - I would imagine that is a spelling mistake. The only other points I would point out, Commissioner, is there is provision for superannuation to be payable on workers compensation, which is not normally the case under - not required under the legislation.

PN37

THE DEPUTY PRESIDENT: Yes.

PN38

MR CAMERON: There is provision for salary sacrifice for employees to make their own contributions to superannuation. The spread of hours is from 6 am to 6 pm Monday to Saturday and the hours of work are set at 40 hours per week. This is more than the provisions of the Wholesale Pharmaceutical Award, but the rates of pay as set out more than compensate in a direct comparison with someone working 40 hours under the award.

PN39

THE DEPUTY PRESIDENT: Right.

PN40

MR CAMERON: And at clause 33 there is provision for long service pro rata after 10 years, whereas the State Act - an employee must be engaged for 15 years before they are entitled to take any long service under the State Leave and Employment. The only other point is at clause 34, which provides that the employer grant discretionary leave to an employee upon application and that can be with or without pay depending upon the circumstances. It might even be negotiated directly between the parties.

PN41

Commissioner, the relevant notice of intention to enter into an agreement was provided to the employees on 19 May 2003. I had a copy of that and it required that it does point out the relevant sections under the Act and in particular the requirement as to any employee being - who is a member of an organisation is entitled to be represented by that organisation. That has come to fruition as is apparent today.

PN42

THE DEPUTY PRESIDENT: Yes. If you have got a copy I will put that on the file.

PN43

MR CAMERON: I only have - we can probably get that copied, but I am sure there is one elsewhere.

PN44

THE DEPUTY PRESIDENT: Right.

PN45

MR CAMERON: The agreement was made on 18 July, which is obviously 14 days after that notice was provided. The proposal and chart was provided to the employees and we would recommend the agreement for certification and it meets - we would suggest it meets the no-disadvantage test and the other requirements of the Act.

PN46

THE DEPUTY PRESIDENT: All right. Thank you. Ms Wood? You are not party to the agreement?

PN47

MS WOOD: No. We are seeking to be bound to the agreement. We have three union members at the site, including Vanessa, who actually took part in the negotiations, as I did myself, and we received a letter from one of our members at the site asking to be bound to the agreement.

PN48

THE DEPUTY PRESIDENT: Yes, that is in the file.

PN49

MS WOOD: Other than that, we would support the submission and ask that the agreement be made on and from 1 July.

PN50

THE DEPUTY PRESIDENT: There is no objection to the NUW being party to the agreement?

PN51

MR CAMERON: No, I will just note the provision of the Act - I don't think we can make objections.

PN52

THE DEPUTY PRESIDENT: It doesn't stop people. I just thought I would pay you the courtesy of asking you. Vanessa, can you explain to me the pay rates? Is there going to be a level 4 and a level 5 or does it only go up to 3?

PN53

MS LYALL: As far as I am aware level 1 doesn't - isn't part of the Tasmanian employees - like, no one starts on level 1 that I am aware.

PN54

THE DEPUTY PRESIDENT: Right.

PN55

MS LYALL: Also a level 2. Level 3 and 4 are what you can reach if you sort of - - -

PN56

THE DEPUTY PRESIDENT: So it is like a career structure.

PN57

MS LYALL: Yes.

PN58

THE DEPUTY PRESIDENT: You can move up through - - -

PN59

MS LYALL: Yes, and as far as 5, I don't know about that one.

PN60

THE DEPUTY PRESIDENT: All right. The only difficulty I have is there is a level 4 and there doesn't appear to be a pay rate for it.

PN61

MR CAMERON: Is that - which document is this?

PN62

THE DEPUTY PRESIDENT: I am looking at the agreement at clause 21.1. The rates go up to pay rate 3 and then appendix A talks about the competency structure, which is tied into the AFS National Training Authority Standard, which goes up to pay rate 5, but in this agreement there is no pay rate 4 or pay rate 5, that is all.

PN63

MR CAMERON: Yes. I am just looking quickly at the comparison table that was provided to the employees, the classification descriptors under the Award were compared to those AFS levels and level 1 indicates a competency to level 2 and level 2 is to levels 2 and 3, and level 3 is to levels 2, 3 and 4, so I think the provision is that - it may be a ..... error, but looking at the Faulding standards against those - to redefine the classification structure under the agreement as compared to what it exists under the award is still open at this stage.

PN64

THE DEPUTY PRESIDENT: Look, could I just ask - I don't want to not put the agreement through, but maybe if you could just get some clarification. There needs to be a grade 4 or a grade 5 - whether there should be a pay rate. If there is not, we don't have to worry about it. I ask you to do that.

PN65

MR CAMERON: We can confirm that.

PN66

THE DEPUTY PRESIDENT: Right. Are you happy with that?

PN67

MS WOOD: Yes.

PN68

THE DEPUTY PRESIDENT: They will just clarify it. I am mainly concerned, if there is an issue that arises somewhere down the track, we might all be groping in the dark without some clarification of that. But what I propose to do is certify the agreement this morning so that it can come into force, and Mr Cameron will just clarify that particular point for me and also remove the clause that we referred to, which will maintain the agreement by exchange of letters between the parties.

PN69

This is an application pursuant to section 170LK of the Workplace Relations Act for certification of the agreement to be known as the Faulding Healthcare (Launceston, Tasmania) Enterprise Agreement 2003. The parties to the agreement are Fauldings Healthcare, employees covered by the classifications found therein, and the NUW also will be a party to the agreement, by consent. The parties have provided the required statutory declarations and I am satisfied, subject to the issues that we have just discussed, that the requirements of the Act have been met.

PN70

Accordingly the agreement will be certified. An order will issue to take effect from today's date and shall remain in force until 30 June 2005. I note, however, that the agreement came into force on 1 July 2003. That agreement is hereby certified and if Mr Cameron can come back to me with clarification of those issues. Thank you. This matter is adjourned.

ADJOURNED INDEFINITELY