AG2002/6708, Transcript of Proceedings [2003] AIRCTrans 451 (12 February 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT1462

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2002/6708

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Monash International Pty Ltd for certification
of the Monash International Pty Ltd General Staff
Enterprise Agreement 2002

MELBOURNE

10.14 AM, WEDNESDAY, 29 JANUARY 2003

PN1

MR G. SMITH: I seek leave to appear on behalf of Monash International Pty Ltd with MR J. RIVETT AND MS R. ROSEN, both of Monash International.

PN2

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Smith. Yes, Mr Smith.

PN3

MR SMITH: Yes, sorry. I am in the habit of sitting down and waiting for the other appearance, but, of course, there isn't another appearance.

PN4

THE DEPUTY PRESIDENT: Yes, I was waiting for that myself and then I suddenly realised there wasn't.

PN5

MR SMITH: Yes. I should indicate that also in attendance here today are some of the staff representatives who are members of the general staff consultative group which negotiated the enterprise agreement. They will be able to answer any questions if necessary if you have any about the consultative process leading to the making of this agreement. This is an application for certification of an agreement called the Monash International Pty Ltd General Staff Agreement 2002.

PN6

The application was filed in the Commission on 20 December last year and at the time we filed the application we also filed a statutory declaration of John Stanford Rivett, and a copy of the agreement itself, signed both by a representative of the employer and by three employees who were employee representatives on the general staff consultative committee; namely, Danielle Hartridge, Leanne Fairbrother, Mary Posibon and Rosa Stefanovic. You have that document on the file.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MR SMITH: Now, before I proceed to deal with the specific statutory requirements I think it is appropriate given that this is a non union agreement that I just elaborate briefly on the consultative process which is outlined in paragraphs 4.1 and 5.1 of the statutory declaration. I tender a bundle of documents which includes a summary of - a timeline of key events in the development of the agreement, key correspondence to staff and the regular staff updates sent to staff. It perhaps could be called for the benefit of the transcript as staff communications.

PN9

THE DEPUTY PRESIDENT: Yes.

EXHIBIT #A1 STAFF COMMUNICATIONS DOCUMENT

PN10

MR SMITH: Thank you, your Honour. Now, I should indicate that apart from the things I said are contained in exhibit A1 there is a document signed by the returning officer, Mr Steve Smith, indicating the outcome of the ballot and I will take you to that. But perhaps if we go to the timeline of events initially, which is under tab 1 in exhibit A1. You can see from the timeline that this has been an extensive process, that it commenced in November 2001 with initial staff presentations outlining the company's desire to negotiate an enterprise agreement, and in particular an LK agreement.

PN11

The first document under tab 2 is in fact a document that was e-mailed to all staff, titled Toward Development of a General Staff Agreement. You can see from that document, if you go into about page 4, that it - I will just wait for your Honour.

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MR SMITH: All of these documents commence with the names of the staff to whom it is e-mailed and if you go to about the fourth page it backgrounds to staff their current employment status and then talks about a need for a change. They had at that time - staff had been covered only by letters of engagement. It was subsequent to that that your Honour will recall we came to the Commission with an award which was made. It talks about why the need to change and then on page 2 the company's desire to, through a consultative process, develop an LK agreement.

PN14

Then it talks about on page 3 the consultative process that was proposed, the nomination of staff on a consultative group and a timeline, and some guarantees that were given to staff about the process. So you can see it is done in a very professional and sophisticated way. At the back of the bundle which is A1 - and I won't go to those - under tab 3 are the various staff updates on the process as it progressed, so that staff were kept fully informed of the process. Now, going back to tab 2 the - you probably don't need to go to these at the present time unless you need to.

PN15

In chronological order the next document is a notice to staff,f dated 31 October, from the staff representatives on the consultative group, advising staff that the proposed agreement was ready for presentation to general staff. So it took basically from November 2001 until October 2002 for the consultative group to work through the negotiation process for an agreement that they felt they could put to the wider group of staff. Then the next document under tab 2 is a notice to staff dated 4 November 2002 advising staff about information sessions about the enterprise agreement and further question and answer forums.

PN16

Then following that another document dated 12 November 2002 informing staff of additional information sessions about the enterprise agreement. Then the next document, which is also referred to in the timeline, is dated 29 November 2002. It is again an e-mail to staff attaching a copy of the final enterprise agreement, so ensuring that all staff got a copy of the agreement that they were going to vote on. It also answered a number of queries that staff may have had about the agreement and at the foot of page 3 of that e-mail there is a statement which is quite - of some importance to the Commission.

PN17

Subsections 3 and 4 of section 170LK requires staff to be informed before the vote - before the 14 day voting period that the company is intending to make an agreement under LK and that if any person whose employment is subject to the agreement wish - is a member of the union and wish the union to represent them, then they can take that opportunity. So that e-mail dated 29 November contains those statements. The next document is dated 5 December 2002 advising staff of the formal voting process and of the appointment of Mr Steve Smith as the returning officer for the ballot.

PN18

Then the subsequent document is the same date, 5 December 2002, a notice to staff, and in particular to people from non English speaking backgrounds, Aboriginal and Torres Strait Islanders, young people and women, that there would be a further set of forums on six different days prior to the ballot. One of those information sessions was designated for female staff only and that is of some importance because a large proportion of the general staff covered by the agreement are women. Then the next document, dated 17 December, advises staff of the outcome of the ballot and subsequent to that is the document I referred to earlier, the declaration by the returning officer, Mr Steve Smith.

PN19

You will see that the ballot was fairly close. It was a majority of 52.6 in favour of the agreement, but a substantial proportion of staff affected voted. 72 per cent of the 131 eligible staff voted. So that is a snapshot of the very lengthy process that was gone through to reach this agreement. Turning to the formal requirements of the Act, we say that the requirements of 170LK have been met. The notice to staff, dated 29 November 2002, meets the requirements of subsection 2 of the Act, noting that that was sent out before the 14 day voting period, which ended on 17 December. I have already pointed out that subsections 3 and 4 of LK are met by the documentation provided.

PN20

Now, it is clear in our submission that the agreement passes the no disadvantage test. The salary rates set out in schedule 1 of the agreement are far in excess of the rates in schedule B of the award. Although there is a collapsing of the number of levels, all of the rates are higher and clause 20 of the agreement means that people translate on their current salary in any event, and then they actually get significant increases upon certification. So we say on any analysis the no disadvantage test is met. There are numerous benefits such as enhanced redundancy and the like in the agreement as well.

PN21

We also say that the Commission can be satisfied that a valid majority of persons have genuinely made the agreement. Subsection 7 of 170LT is met because it is clear that the agreement in its terms has been explained to employees, and in particular to women with that special session for women only. The agreement also contains a dispute settling procedure as required by 170LT(8). That is clause 11 of the agreement. The agreement specifies a nominal expiry date of 31 December 2004. That is clause 4. In our submission none of the matters mentioned in 170LU are applicable or would prevent this agreement from being certified by the Commission.

PN22

So, your Honour, for all these reasons we would submit that the agreement should be certified. It is an example of what can be achieved through a genuinely co-operative process involving management and employee representatives and it achieves the objectives that are set out in clause 3 of the agreement itself. Those are my submissions, and as I said, we can answer any questions that you might have on the process.

PN23

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Smith. I don't think that I have any questions to ask. A substantial amount of effort is expended in my chambers in respect of applications to register agreements under section 170LK, because in the absence of union representation I believe it is important to ensure that all of the requirements of the Act are met, but particularly that the agreement doesn't disadvantage those people covered by it when it is considered in its entirety. So, as I say, to that end a lot of effort is expended to ensure that the requirements of the no disadvantage test are met.

PN24

In this instance I have absolutely no doubt that those requirements are met. I am also satisfied on the basis of the documentation, and the submissions you have made to me, that all other relevant requirements of the Act are met in respect of this application and on that basis the Monash International Pty Ltd General Staff Enterprise Agreement 2002 will be certified with effect from today's date. The agreement will expire on 31 December 2004. The matter is adjourned.

ADJOURNED INDEFINITELY [10.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STAFF COMMUNICATIONS DOCUMENT PN10