AG2003/7851, Transcript of Proceedings [2003] AIRCTrans 4749 (29 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 4998
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

AG2003/7851
AG2003/7852

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT BY EMPLOYER
OR UNION

Application under section 170MD(2) of the Act
by Hume City Council re library variation
to the agreement

Application under section 170MD(2) of the Act
by Hume City Council re maternal and child
health nurses variation to the agreement

MELBOURNE

9.19 AM, MONDAY, 13 OCTOBER 2003

PN1

MR R. JOINER: I appear on behalf of Hume City Council.

PN2

MR N. HENDERSON: I appear for the ASU.

PN3

THE COMMISSIONER: Mr Joiner.

PN4

MR JOINER: Thank you, Commissioner. Commissioner, council makes application to vary its enterprise agreement to incorporate specific provisions covering library staff which we inherited as a result of a transmission of business after the certification of council's enterprise agreement. So at the time the agreement was certified it made no specific provisions for library employees and we seek to incorporate this variation to council's agreement.

PN5

The agreement and application are supported by a statutory declaration signed by Mr Frank Dixon who is the acting chief executive officer of council and it sets out in council's opinion the requirements of the Act are met, that the variation is appropriately endorsed and approved by staff, in particular the staff in the work area affected, that it will come into effect immediately and operate in parallel with council's parent enterprise agreement with a nominal expiry date of 30 June 2005. If the Commission pleases.

PN6

THE COMMISSIONER: Yes. You say you got it by transmission of business, what was the instrument covering the library beforehand?

PN7

MR JOINER: Commissioner, the Hume Moonee Valley Regional Library Corporation Enterprise Agreement of 1996, or 7, or 8, or thereabouts. It had its own - sorry, no, it would have been about 2000 or 1999. It had its own enterprise agreement.

PN8

THE COMMISSIONER: I see.

PN9

MR JOINER: And that has carried over obviously as part of transmission but seeking to incorporate and regularise the terms and conditions of the library employees and make them consistent with the rest of the organisation we seek to make this variation specifically which would then override and replace the Regional Library Corporation Enterprise Agreement.

PN10

THE COMMISSIONER: Thank you. Mr Henderson.

PN11

MR HENDERSON: Commissioner, the ASU has signed the variation I understand and that has been provided to the Commission. Unfortunately we didn't give a copy of it. I raise with the Commission an issue I have been discussing with Mr Joiner before the matter commenced and that is a question of the approval of the agreement. As I understand, this matter has been before the Commission before.

PN12

THE COMMISSIONER: Yes.

PN13

MR HENDERSON: And it has been approved. The statutory declaration refers to it about just over halfway down the page:

PN14

The proposed variation was circulated to all library staff.

PN15

And then after that, the second last paragraph on the first page, it was made available to all staff. But there was no vote taken.

PN16

THE COMMISSIONER: I see.

PN17

MR JOINER: Commissioner, if I may.

PN18

THE COMMISSIONER: Yes, Mr Joiner.

PN19

MR JOINER: This agreement or this application for variation haven't been before the Commission but the following matter that we are dealing with immediately after this has. As a result of directions from you as the Commissioner hearing that application the process we initiated in this case and in the following matter, because the variations only directed affected a very small proportion of the employees of the organisation, we negotiated directly with the unions and the staff in those work areas, in this case the library staff.

PN20

We had a direct vote of those employees. Following that vote which overwhelmingly endorsed this variation we sent the variation to all employees with a covering letter explaining the process we have gone through and giving them 14 days in which to approve or not approve - sorry, after 14 days in which to approve or not approve the variation which had been formally voted on and overwhelmingly supported by the employees in the direct work area involved.

PN21

THE COMMISSIONER: So there was never a meeting or a vote of the balance of the employees?

PN22

MR JOINER: Of the total employees, no, Commissioner, but we went through a formal advice and approval process.

PN23

THE COMMISSIONER: I understand that.

PN24

MR JOINER: We are relying on the language in 170MD(3) I think it is which talks about approval of the employees, valid approval or genuine approval.

PN25

THE COMMISSIONER: Yes, but then approval by a valid majority is set out in 170LR. If you go to section 170LE of the Act it has got a definition of what approval effectively is -

PN26

For the purpose of this part a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement make or genuinely make the agreement or approve or genuinely approve the agreement -

PN27

etcetera -

PN28

the variation or termination of the agreement if the employer gives all the persons so employed a reasonable opportunity to decide -

PN29

and you have done that -

PN30

and either:

PN31

(1) If subparagraph 2 does not apply a majority of the persons, or

PN32

(2) If the decision is made by a vote, the majority of the persons who cast a valid vote decide or genuinely decide that they want to make the agreement or give the approval.

PN33

Now, what you are saying is that the variation was made available. What was the terms of what was said to them?

PN34

MR JOINER: The variation specifically sent and a cover letter explaining the process we had gone through, the fact that it had the endorsement of the staff in the work area directly affected, the support of the union, the support of the council and without actually having a copy of the cover letter, it had words to the effect that if you do not approve of this you need to notify. It was a negative rather than a - I suppose it was put in the negative rather than the positive.

PN35

Everyone didn't have to express approval. They had to express non approval and I received no response to that.

PN36

THE COMMISSIONER: I think that is pretty dangerous. See, a majority of the persons decide or genuinely decide that they want to make the agreement or give the approval requires a positive act I would say.

PN37

MR JOINER: Again, Commissioner, the difficulty we have is what I explained last time, that this library agreement covers 70 out of 1400 employees.

PN38

THE COMMISSIONER: Yes.

PN39

MR JOINER: The nurses covers 18 out of 1400 employees.

PN40

THE COMMISSIONER: Yes, but you - I understand the difficulty.

PN41

MR JOINER: Yes.

PN42

THE COMMISSIONER: Yes, Mr Henderson, is there anything more you wish to put about this?

PN43

MR HENDERSON: No, Commissioner. Given the union has signed the variation - - -

PN44

THE COMMISSIONER: Yes. No, I understand the union has signed it but there is an implication here that - - -

PN45

MR HENDERSON: Well, that is right.

PN46

THE COMMISSIONER: - - - arguably all that is needed is a letter to go around saying we are going to take this as approved unless you respond otherwise.

PN47

MR HENDERSON: Yes. Well, I haven't come prepared to put submissions to the Commission.

PN48

THE COMMISSIONER: No.

PN49

MR HENDERSON: But my recollection is it is as the Commission has observed, that it requires a positive act.

PN50

THE COMMISSIONER: Positive act.

PN51

MR HENDERSON: And there was a Full Bench decision recently in relation to an LK agreement where a number of employees weren't given the opportunity to vote and even though their vote would not have changed the outcome - - -

PN52

THE COMMISSIONER: Affected the outcome.

PN53

MR HENDERSON: - - - the fact that they didn't have that opportunity to express positively one way or the other was enough to render the vote invalid. In this case seeking for those who don't approve the agreement to come forward is not really the positive act that in my view the Act is seeking. Now, there is some confusion in the language and I agree with Mr Joiner and I am sure there is authority on this but I can't take the Commission - - -

PN54

THE COMMISSIONER: Well look, I might give you the opportunity to - I mean I think there is a policy issue from the organisation's point of view that they may not have considered in this, because what is good in this case would be good in all cases and perhaps I should give you the opportunity to make written submissions if you wish and I will reserve on the matter.

PN55

MR HENDERSON: Yes, I think that would be appropriate.

PN56

THE COMMISSIONER: Now, Mr Joiner, I am happy to give you the same opportunity. Well, no, rather than written submissions I will - - -

PN57

MR HENDERSON: Re-list it.

PN58

THE COMMISSIONER: I will adjourn the matter to give you the opportunity to make your further submissions and I will bring it back on in relatively short order, obviously not later today unfortunately, because you are a bit tied up too.

PN59

MR HENDERSON: Busy, yes.

PN60

THE COMMISSIONER: And I can only apologise. I thought I made my position fairly clear on the last occasion that I thought it was necessary for there to be at least a meeting convened at which people had the opportunity to vote. Maybe I made that position clear off the record and I might be wrong about that so I would like the opportunity to consider it now the matter has been raised.

PN61

MR HENDERSON: Can the Commission just take a moment to just clarify what we are looking at? In section 170LE, which is the definition of valid majority, paragraph (d), in subparagraph 1 it says:

PN62

If subparagraph 2 does not apply a majority of the person decide or genuinely decide -

PN63

Now, subparagraph 2 refers to a vote which tends to suggest that subparagraph 1 is an approval by a method over than a vote.

PN64

THE COMMISSIONER: Yes, but I think it requires an active - - -

PN65

MR HENDERSON: That could be a list of signatures.

PN66

THE COMMISSIONER: Yes, or something like that.

PN67

MR HENDERSON: But that will be the section in which we focus our attention. If the Commission pleases.

PN68

THE COMMISSIONER: Yes. I would appreciate further submissions on it and you say the same matter arises in the next matter?

PN69

MR JOINER: Exactly the same issues, Commissioner.

PN70

THE COMMISSIONER: So I just ask you to call that on. I will adjourn the proceedings in this matter to a date to be fixed. That date will be fixed in the course of the next matter that we are going to hear. They were called on together, I am sorry. The two matters have been joined anyhow. So I won't - because they are different parties.

PN71

MR JOINER: Yes. No sign of the ANF, Commissioner.

PN72

THE COMMISSIONER: Not there?

PN73

MR JOINER: No.

PN74

THE COMMISSIONER: They may not have been notified.

PN75

MR HENDERSON: Well, we weren't notified, I would have to say so perhaps they weren't.

PN76

THE COMMISSIONER: There is something wrong with the system. Given that there has been no notification, in respect of AG2003/7852 which was called on, both matters were called on together, it would appear there has been no notification given to the ANF regarding the proceedings and I don't know how that has come about but that is a matter - and in those circumstances it is appropriate I adjourn it in any event. But Mr Joiner, I request that you advise the ANF both of the existence of today's proceedings and the outcome of the earlier matter and the application of that to this. Would 9.15 on Wednesday be too soon?

PN77

MR HENDERSON: That is fine by me.

PN78

MR JOINER: I have meetings that I can change, Commissioner. Yes, I will do that.

PN79

THE COMMISSIONER: Very good. Okay. Well, the proceedings in both of these matters will be adjourned until 9.15 on Wednesday next, 15 October, and proper notification will be sent to the parties in respect to that. The proceedings are adjourned on that basis. Thank you.

ADJOURNED UNTIL WEDNESDAY, 15 OCTOBER 2003 [9.34am]