AG2003/6154, Transcript of Proceedings [2003] AIRCTrans 4374 (1 October 2003)

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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/6154

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by the Aboriginal Sobriety Group of South
Australia Incorporated and Another for
certification of the Aboriginal Sobriety
Group of South Australia Incorporated
Enterprise Agreement No 1 of 2003

ADELAIDE

10.08 AM, TUESDAY, 16 SEPTEMBER 2003

PN1

MR L. BOLTON: I appear on behalf of the Aboriginal Sobriety Group. I have with me two employee representatives, MR D. SHEM and MR M. CAMPION.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bolton.

PN3

MR G. WILLCOX: Sir, I appear on behalf of the Australian Services Union.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Willcox. Mr Bolton?

PN5

MR BOLTON: Thank you, sir. This is an application pursuant to Division 2 of the Workplace Relations Act 1996 to certify the Aboriginal Sobriety Group Incorporated Enterprise Agreement No. 1, 2003. If I may just briefly give some background, sir, to a relationship between Aboriginal Sobriety Group and Nunkuwarrin Yunti of South Australia Incorporated, which also has two enterprise agreements which cover that organisation.

PN6

The two organisations share premises at 182 Wakefield Street and Nunkuwarrin Yunti also provides some business support services to Aboriginal Sobriety Group by way of accounting and payroll services. There is a commonality of client between both organisations and, in recognising this over the years, the two organisations have attempted to harmonise their conditions of employment and indeed the wages of ASG employees and Nunkuwarrin Yunti employees. This acts to ensure effective services to clients as well as providing harmony between the two employee groups on the premises.

PN7

Sir, ASG operates a mobile assistance patrol which is based at the Wakefield Street premises and its job is to, amongst other things, ensure the safety of Aboriginal people who may be ill or under the influence of drugs or alcohol. It also operates two hostels in the metropolitan Adelaide area, which assists Aboriginal people who are recovering from substance misuse and it also has a farm located out near Murray Bridge, which offers intensive support to Aboriginal people who are in that recovery process.

PN8

On 19 December last year, sir, you approved an enterprise agreement which specifically covered nursing staff of Nunkuwarrin Yunti of SA and subsequently on 10 February this year Deputy President Hampton approved a State enterprise agreement to cover all other employees of Nunkuwarrin Yunti. This being the first enterprise agreement for Aboriginal Sobriety Group, it continues the policy of minimising the differences between ASG employees and Nunkuwarrin Yunti employees.

PN9

The process that was followed, sir, was a formal one where ASG wrote to the ASU in June last year seeking to commence formal negotiations for an enterprise agreement. That was simultaneous with the commencement of negotiations for the Nunkuwarrin Yunti Enterprise Agreement and the intention was to conduct both negotiations in parallel. A negotiating committee was formed which comprised management, union and employee representatives, two of whom are here today. That committee met regularly on a fortnightly basis until November 2002 when a preliminary draft agreement was made.

PN10

The employees were facilitated in their input through their representatives and their views were input back into the negotiating committee throughout that process. The geographic spread of the staff of the organisation led to some difficulties being experienced in briefing them and obtaining their input so the negotiating committee agreed to have a break in the formal process between December 2002 and June of this year to enable more detailed discussions to occur at the employee level.

PN11

During this period information was provided, an explanation on the content of that preliminary draft, so that employees and their representatives were able to fully understand it and further input was gained from the employees. The negotiating committee reconvened on 10 July this year to complete a final draft to put to staff. A copy of that final draft was provided to each employee on 11 July and a meeting to discuss it was held for all staff on 23 July. As required by section 170LR of the Workplace Relations Act, all the employees were provided with a copy of it 14 days prior to a secret ballot which was held and closed on 7 August 2003.

PN12

The result of the ballot was that out of 26 staff who were eligible to vote, 22 employees cast valid votes; 20 of those voted "yes" and only two voted "no", so it is safe to say a substantial majority of the employees endorsed the agreement, sir. If I could just briefly highlight a couple of the significant features of the agreement - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Bolton, perhaps before you do that can I just ask you to clarify those dates with me again?

PN14

MR BOLTON: Yes sir.

PN15

THE SENIOR DEPUTY PRESIDENT: I'm having a little difficulty reconciling the information you have given me with that contained in the statutory declarations. When do you say to me that the employees were provided with the proposed agreement upon which they ultimately voted?

PN16

MR BOLTON: The final draft agreement upon which they voted, I believe was 11 July, sir.

PN17

THE SENIOR DEPUTY PRESIDENT: And at that time were they provided with advice in accordance with section 170LK(4) so that they were advised that if they wished to be represented by a union, they could be so represented?

PN18

MR BOLTON: They had been previously advised of that, sir, yes.

PN19

THE SENIOR DEPUTY PRESIDENT: When were they given that advice in terms of section 170LK(4)?

PN20

MR BOLTON: Back in June 2002 when the first notice of intention to bargain was sent both to the ASU and to employees.

PN21

THE SENIOR DEPUTY PRESIDENT: Were there any changes in the make-up of the work force between June 2002 and July 2003?

PN22

MR BOLTON: The staff turnover in ASG, I'm not familiar with directly, sir, but I believe there wouldn't have been very many new employees who had come on board during that period. It is not all that great.

PN23

THE SENIOR DEPUTY PRESIDENT: I see, yes. And when do you say the actual vote occurred?

PN24

MR BOLTON: The vote occurred - closed on 7 August 2003.

PN25

THE SENIOR DEPUTY PRESIDENT: 7 August?

PN26

MR BOLTON: Yes, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN28

MR BOLTON: I would just like to highlight a couple of the significant features in the agreement which also serves to illustrate again the way the two organisations are trying to ensure harmony between Nunkuwarrin Yunti staff and ASG staff. It provides 12 per cent pay rise over the life of the agreement which are wages over and above those applied under the Social Community Services Award and the Crisis and Supported Housing Award. The first pay rise will become operative from 10 February 2003, which is the same date that the Nunkuwarrin Yunti received a pay rise under their enterprise agreement.

PN29

The agreement provides for voluntary access to salary packaging up to the maximum allowable limits. The agreement provides, with the cooperation of staff, to implement an initiative to cease smoking. As ASG is involved in the health industry, if I could use that term, it is considered important by the organisation to assist, particularly staff, to cease smoking and also to use that as an example to their clients. Over the Christmas and New Year period the Nunkuwarrin Yunti building at Wakefield Street closes down and even though fee services don't stop, again to emphasise the harmonising of conditions of employment, ASG staff have been given the benefit of an additional 7 days annual leave to bring them into line with Nunkuwarrin Yunti staff.

PN30

The agreement provides for an additional 3 days paid parental leave over and above the parental leave in the awards. The agreement also provides for staff to receive paid and unpaid time off for Official National Aboriginal and Islander Week celebrations. It also provides for 4 weeks paid maternity or adoption leave. The agreement is intended to remain in place until 19 December 2005. Deputy President, the organisation, Aboriginal Sobriety Group commend the agreement to you and that completes my submission. Thank you.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Bolton. Now, it might be best if I hear from the ASU first of all in this regard. Mr Willcox?

PN32

MR WILLCOX: Sir, I don't have a lot to add to my friend's submissions but I can inform the Commission that the ASU supports the application by the ASG for certification of this agreement. It is agreed with my friend that this agreement meets the relevant statutory requirements for a 170LK agreement. It is made in respect of a single business unit, namely Aboriginal Sobriety Group of South Australia. It odes contain a dispute resolution clause, sir, at clause 27. As my friend has informed you, it was approved by a valid majority of persons with the vote on 7 August. The employees ave been extensively consulted and the terms of the agreement have been explained.

PN33

Perhaps I can assist you, sir, in resect of the question that you directed to my friend: John Hackett is the union organiser involved in negotiations in this agreement and he has had extensive involvement. I think the Commission can be satisfied that the employees concerned were aware of their rights in respect of union representation. My instructions are, sir, I believe there is something like four members, ASU members on site and in that respect the union is a signatory as a representative of those members. The agreement, to continue on, specifies an expiry date within the 3-year limit specified by the legislation.

PN34

Clause 4 specifies an expiry date of 19 December 2005. The agreement provides a salary increase of 4 per cent in its first year of operation with further increases of 4 per cent in subsequent years during the life of the agreement. The ASUs submission, sir, is that this agreement meets the requirements oft he no disadvantage test and we urge the Commission to certify the agreement accordingly, may it please the Commission.

PN35

THE SENIOR DEPUTY PRESIDENT: Mr Shem and/or Mr Campion, I'm going to direct my questions to both of you. You can debate amongst yourselves which of the two want to answer those questions or you could both give me answers. Firstly, are you here today as members of that negotiating committee, is that correct?

PN36

MR CAMPION: That's correct.

PN37

THE SENIOR DEPUTY PRESIDENT: And can you tell me how it was that you came to be made members of that negotiating committee?

PN38

MR CAMPION: We were elected members. A vote was cast, nominations were taken and different members were voted into the committee.

PN39

THE SENIOR DEPUTY PRESIDENT: And can you confirm to me that the employees of the Aboriginal Sobriety Group were given written advice that informed them of both the intention to make the agreement, that also informed them of the capacity to access the proposed agreement in writing and of the opportunity to be represented by a union if they chose to do so?

PN40

MR CAMPION: Yes, that's correct. I can confirm that, all points on there. Everyone was informed in writing of what was going ahead and their rights to union representation. On a number of different occasions they were informed of their ability to be represented by the union.

PN41

THE SENIOR DEPUTY PRESIDENT: And in terms of the document arrived at between the parties on 11 July, was that document individually made available to the employees to be covered by the agreement or was it posted on a notice board?

PN42

MR CAMPION: No, individual agreements were handed out and made available to all the employees.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you. There were no changes that you know of made to that document subsequent to 11 July?

PN44

MR CAMPION: No, not that I know of.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes. Thank you. Now, Mr Campion, Mr Shem and Mr Willcox, I'm going to ask Mr Bolton a few questions about the agreement. My questions do not invite him to rewrite or redraft the document that was voted upon by the employees but they go to my desire to clarify some issues now. I would invite you to jump up and either indicate that you don't agree with anything that Mr Bolton says or to make an additional comment in respect of any of the answers that he gives me. If you don't do so, I will assume you are in agreement with his responses.

PN46

Mr Bolton, can I refer first of all to the title page of the agreement, that is the first page, which has a footer on it that indicates that it is the "ASG Enterprise Agreement final draft 10.7.2003". Each of the other pages of the document has a footer that says "ASG Enterprise Agreement Final 23.7.2003". Can you explain to me why that discrepancy exists?

PN47

MR BOLTON: Minor typo, I would suggest. On that title page the footer should have been deleted.

PN48

THE SENIOR DEPUTY PRESIDENT: I see, but you can confirm to me, can you not, that the document that I have in front of me is in fact the document that was provided to all of the employees on 11 July and upon which they voted on 7 August?

PN49

MR BOLTON: Yes, most certainly.

PN50

THE SENIOR DEPUTY PRESIDENT: And there were no changes made to it?

PN51

MR BOLTON: There were no amendments done on that, no.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, if I can then take you to Clause 6.2. Now, Mr Shem and Mr Campion don't appear to have a copy of the agreement so I shall loan them a couple of copies from my file. 6.2 states that:

PN53

Where there are any inconsistencies the terms of the agreement prevail over award provisions.

PN54

Given that there are the two awards referenced, I will assume that where this agreement is silent on the issue the Social and Community Services Award applies to the extent of the coverage of that award and the Crisis and Supported Housing Award applies to the extent of the coverage of that particular award?

PN55

MR BOLTON: Yes, sir, yes. The mobile assistance patrol staff are covered by the SACS award, the staff who work in the sheltered accommodation areas are covered by the other award, sir.

PN56

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 9 relates to wages. Am I correct in my understanding that in that respect I should take it that schedule 1 details the wage increases specified in clause 9?

PN57

MR BOLTON: Yes, sir.

PN58

THE SENIOR DEPUTY PRESIDENT: In which case, if I can ask you to look at schedule 1, how should I understand that the various classifications that apparently apply here are defined? You see, all that I have in terms of schedule 1 is a series of wage rates. They appear to be set out on both a fortnightly and an annual basis, although that is not altogether clear and they don't appear to have any definitions attaching to those wage rates.

PN59

MR BOLTON: Yes, my apologies, sir. I actually didn't spot that. That is not the way the spreadsheet that was done actually looks on the computer the last time I saw it. So again, there's an error there that I'm afraid I didn't spot.

PN60

THE SENIOR DEPUTY PRESIDENT: Is it going to be relatively easy for you to provide me with a revised version of this?

PN61

MR BOLTON: Of the schedule?

PN62

THE SENIOR DEPUTY PRESIDENT: Which won't change the agreement but would simply be retained on the Commission's file and would identify the various classifications to which those rates apply?

PN63

MR BOLTON: Yes, that can be done very easily.

PN64

THE SENIOR DEPUTY PRESIDENT: Could that also be achieved on the basis that it was shown, first of all, to Mr Campion, Mr Sheen and Mr Willcox?

PN65

MR BOLTON: Certainly.

PN66

THE SENIOR DEPUTY PRESIDENT: Who could then note on it that it was a document with which they agreed?

PN67

MR BOLTON: Yes, certainly sir.

PN68

THE SENIOR DEPUTY PRESIDENT: Now that document is going to be necessary for me to be able to consider the agreement and the terms of the no disadvantage test.

PN69

MR BOLTON: Yes.

PN70

THE SENIOR DEPUTY PRESIDENT: Now, can I then take you to clause 12.5.1 on page 5, which says that in recognition of the 24 hour 7 day a week operation of the sheltered accommodation facilities this clause sets down the entitlement to penalty payment for shift work. If I look back at 12.3, 12.3 indicates that the sheltered accommodation facilities operate on that 24 by 7 day roster arrangement, but so too does it indicate that the mobile assistance patrol operates on that arrangement. So should I understand that the penalty rates set out in 12.5.2 would also apply to the mobile assistance patrol?

PN71

MR BOLTON: That is the intention, sir.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 27, which is the dispute resolution or dispute and grievance procedure, refers in 27.2.5 on page 12 to the parties right of access to the Australian Industrial Relations Commission. Clause 31 on page 13 of the agreement also refers to the capacity of the parties to refer a dispute over the intended meaning of any part of the agreement to the Commission. Should I understand then that the parties intend that the Commission would have authority pursuant to section 170LW of the Act to determine a dispute over a grievance relating to a matter arising from the agreement, or to determine a dispute over the application of the agreement in the event that that dispute was not able to be resolved?

PN73

MR BOLTON: Yes, sir. The intention is that we would approach the Commission if it can't be resolved.

PN74

THE SENIOR DEPUTY PRESIDENT: Given that charter for the Commission, is it the parties intention that if there was to be a dispute then the Commission would try to resolve it first of all by way of a conciliation process with arbitration as a last resort?

PN75

MR BOLTON: Yes, sir.

PN76

THE SENIOR DEPUTY PRESIDENT: A final question, in terms of clause 29 which is the Drug and Alcohol Policy on page 12. The first part of that clause suggest that there is an obligatory or a mandatory requirement or set of requirements. The provisions of clause 29.3 suggest that no such mandatory obligations exist. I'm wondering whether you might clarify for me the intention of the parties relative to that Drug and Alcohol Policy and perhaps, before you answer my question, if you need to talk with Mr Shem or Mr Campion in that regard before answering, feel free to do so.

PN77

MR BOLTON: Yes, sir. If I could give just a brief piece of background. When an employee is recruited into ASG they are made very well aware before they are employed that they are required to sign a pledge that they will - that they are at the time of employment drug and alcohol free and that they will remain so constantly whilst they are in the employment of ASG hence the motion of it being critical for the employees to model an alcohol and drug free lifestyle to the clients that they are dealing with.

PN78

The clause is, particularly 29(3), is to address issues which have arisen from time to time and which unfortunately may arise in the future where an employee is under investigation and that the use of drugs and alcohol may actually be involved. But it is intended that it be done in such a way that it is part of the formal disciplinary process, not in a manner which would be seen to harass or victimise an employee.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Campion, Mr Shem and Mr Willcox, do any of you want to add anything or take anything away from any of the answers that Mr Bolton has given to me? Or can I take it that you are all in agreement with all of his answers?

PN80

MR CAMPION: I'm all in agreement with everything - with the answers.

PN81

MR WILLCOX: Yes, sir. I am. I assure you I'm in agreement with that as well.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Bolton.

PN83

MR BOLTON: Thank you, sir.

PN84

THE SENIOR DEPUTY PRESIDENT: I can indicate to the parties now that I'm satisfied that the agreement was reached through a process consistent with section 170LK of the Act and the agreement contains the necessary dispute resolution provisions, the operation of which the parties have clarified today. That the agreement is going to be capable of certification in the event that I can determine that it meets the requirements of the no disadvantage test. I'm not able to do that at this stage simply because the information that I will need to have regard to is not currently available.

PN85

The parties have indicated that they can provide that information to me and I will confirm that if upon my receipt of that material I'm satisfied that the agreement does in fact meet the requirements of the no disadvantage test, I will certify the agreement from that date. If I have a continuing concern in that regard the matter would be relisted so as to give the parties the opportunity to address me on that question. On the basis that I am able to certify the agreement, the certificate will be sent out to the parties within a few days of the receipt of that information.

PN86

I say a few days because I do need to advise you that I will be unavailable for a couple of weeks. So depending on when I receive that material there may be a delay in the receipt of the certificate. The information to be sent to me should ensure that it confirms that it is agreed between the two employee representatives and the ASU and it will be retained on the Commission's file in the event of future reference. The certificate that I hope will be able to be forwarded to the parties would also identify the various clauses about which I sought clarification from the parties.

PN87

It will not detail the answers that I've been given because those answers are confirmed on the transcript of these proceedings if it was every necessary to have regard to them. On the basis that I am confident that I will be able to certify the agreement I congratulate you on reaching this agreement. Clearly it has been a long process and I trust that the agreement operates to benefit both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.38am]