AG2003/7005, Transcript of Proceedings [2003] AIRCTrans 4921 (6 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5093
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/7005

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Natcorp Enterprises Pty Ltd t/as Aberdeen
Early Learning Centre for certification of
the Aberdeen Early Learning Centre Agreement 2003

MELBOURNE

10.56 AM, WEDNESDAY, 22 OCTOBER 2003

PN1

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry and I appear on behalf of Natcorp Enterprises Pty Ltd which trades as the Aberdeen Early Learning Centre and with me is MS K. CHARLTON and also MS C. HAUENSTEIN, who is the employee representative for this particular agreement.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Eberhard?

PN3

MR EBERHARD: Your Honour, you could have on file a copy of both the statutory declarations from both Ms Charlton and also from Ms Hauenstein and also a copy of the signed agreement from both of those two people. I can advise the Commission that with regard to the requirements under the Act we would submit that with respect to the requirements under LK that the procedures required under there have been met in that when the Agreement was put out for consideration the staff who would be the subject of the agreement were advised that should they be a member of an association of employees - an organisation of employees that they had the right to ask that organisation to meet and confer with the employer with respect to the contents of the agreement.

PN4

THE SENIOR DEPUTY PRESIDENT: They were provided with that in writing, were they?

PN5

MR EBERHARD: They were, yes, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that?

PN7

MR EBERHARD: It is actually the - well, your Honour, I will give you the opportunity to read it yourself. I think it is probably the easier thing to do.

PN8

THE SENIOR DEPUTY PRESIDENT: Thanks. Yes, thank you, I have read that notice to all employees. It does make it clear that they were advised that they were entitled to be represented by a union if they so wished. I will have that handed back to you.

PN9

MR EBERHARD: Thank you, your Honour. With respect to any other submissions, as stated before, we would submit that the proposed agreement meets the requirements under the Act and we would ask that the Commission certify the agreement within its own terms and unless the Commission has any questions I would rest.

PN10

THE SENIOR DEPUTY PRESIDENT: Well, I take it that there were three employee representatives nominated, Mr Eberhard, is that right?

PN11

MR EBERHARD: From the statutory declaration, that is correct, yes.

PN12

THE SENIOR DEPUTY PRESIDENT: And yet there is only statutory declaration from an employee representative. Do not the regulations require that each employee representative file a statutory declaration?

PN13

MR EBERHARD: I didn't think that - I thought that you needed a statutory declaration from an employee representative.

PN14

THE SENIOR DEPUTY PRESIDENT: What regulation am I looking at, Mr Eberhard?

PN15

MR EBERHARD: Off the top of my head I have completely forgotten.

PN16

THE SENIOR DEPUTY PRESIDENT: Sorry, what rule rather? I think it is in the rules, isn't it?

PN17

MR EBERHARD: In terms of lodging that documentation it would be in the rules, yes, you are correct, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, well, rule 49(1)(b)(i)(B) requires that if the agreement was negotiated by an employee acting on his or her own behalf and on behalf of other employees a statutory declaration is to be filed by that employee. Now, here we have three such employees according to the statutory declarations filed.

PN19

MR EBERHARD: I think in a strict reading of the rules, yes, we haven't complied with rule 49 but certainly my understanding had always been that where there had been a committee, if you would like to use that term, that it was appropriate that one statutory declaration representing the employee and the employees with respect to the negotiating committee was acceptable under the rules of the Commission for the certification of these types of agreements.

PN20

THE SENIOR DEPUTY PRESIDENT: You see my difficulty is that - it is apparent from the employee's statutory declaration that there were three employee representatives nominated. It does not - it is not apparent from the statutory declaration that Ms Hauenstein makes the declaration on behalf of those employees. She only says that:

PN21

I, Clare Hauenstein, childcare worker of 19 Aberdeen Street, Newton, on whose behalf this statutory declaration is made do solemnly and sincerely declare as follows...

PN22

Now, is she making it on her own behalf or is she making it on behalf of the other employees? What am I to glean from that?

PN23

MR EBERHARD: Certainly, my understanding is that the statutory declaration by Ms Hauenstein has been made on behalf of the employees as she is - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Why hasn't it said so? Why doesn't it say so? Why doesn't is say something like "I was appointed as a employee representative and I make this declaration on behalf of employees"? It really doesn't - it doesn't even tell me that she was nominated as one of the employee representatives. It is a bit light on, Mr Eberhard, isn't it? In clause 4.1 she only says, which is the same as the employer said, and I suspect it was drafted by the employer, that three employee representatives were elected. Now, how am I to know that she is an employee representative from that?

PN25

MR EBERHARD: In regard to that they are my instructions, your Honour, and I suppose in a way - - -

PN26

THE SENIOR DEPUTY PRESIDENT: Well, a bit more care needs to be taken, doesn't it, in drawing these statutory declarations?

PN27

MR EBERHARD: It does and I - - -

PN28

THE SENIOR DEPUTY PRESIDENT: I don't know who drew it but it is not helpful.

PN29

MR EBERHARD: I will take blame for that. I drafted the statutory declarations but my only area of concern is that this hasn't been a matter that I have necessarily been involved with in that this was a matter that Mr Bates from our office had carriage of - - -

PN30

THE SENIOR DEPUTY PRESIDENT: If you want to pass the back that is fine but the statutory declaration has to indicate enough for me to know that the requirements of the regulations and the Act have been met and this statutory declaration merely says that Ms Hauenstein makes it on her behalf and she tells me the three employee representatives were nominated.

PN31

MR EBERHARD: I understand what you are saying and I suppose - - -

PN32

THE SENIOR DEPUTY PRESIDENT: She doesn't tell me that she is one of them. Is she?

PN33

MR EBERHARD: Well, she is here present today so that they are questions that you could - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Are they your instructions from her? I don't need sworn evidence, but did - - -

PN35

MR EBERHARD: My instructions are - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Well, just sit down for a moment. Ms Hauenstein, were you elected as a representative for the purposes of negotiating this agreement?

PN37

MS HAUENSTEIN: Yes, I was.

PN38

THE SENIOR DEPUTY PRESIDENT: And you are one of three, are you?

PN39

MS HAUENSTEIN: Yes, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Eberhard, that settles that. You might bear these remarks when you make declarations in the future. When you draft them you may share these remarks in mind.

PN41

MR EBERHARD: Yes, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Now, the other matter that is of more concern to me is the no disadvantage test. Well, my associate has drawn to my attention at my request certain areas in the agreement and the award and I have serious reservations about whether this agreement passes the no disadvantage test. There are fewer allowances in the agreement than there are in the award - uniforms, hours of work - sorry, fewer allowances it appears. As I understand it, the wage rates are those of the Children's Services (Victoria) Award 1998. There is no wage increase associated with this agreement, is that right?

PN43

MR EBERHARD: Not directly. They would flow through from the safety net adjustment.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, well, nothing in excess of the award then?

PN45

MR EBERHARD: No.

PN46

THE SENIOR DEPUTY PRESIDENT: Then matters such as clause 8.2 where an employer is required to approve all individual time sheets before being processed for payment doesn't appear in the award. I have got a sneaking suspicion that the uniform allowance is less than that provided by the award. It is a little hard to correlate. The hours of work provides for full-time employees to be rostered on to work with a variety of shifts as decided by management with an ability to change shifts, which is probably something that is not permitted by the award. Clause 11, overtime payments, can you tell me whether that deals with all overtime or is that something additional to the award?

PN47

MR EBERHARD: I might be able to clarify a number of those matters. I will just get some instructions with regard to that.

PN48

THE SENIOR DEPUTY PRESIDENT: Well, I will stand down for five minutes to enable you to do so, Mr Eberhard.

PN49

MR EBERHARD: Thank you, your Honour.

SHORT ADJOURNMENT [11.09am]

RESUMED [11.23am]

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Eberhard?

PN51

MR EBERHARD: Thank you for that, your Honour. A couple of things that may well clarify some of the concerns that you had raised before with respect to matters that may or may not have been incorporated within the agreement. Firstly, where a matter is not contained within the agreement the award still prevails and that is the intent of - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN53

MR EBERHARD: - - - the employer to provide for that. With respect to uniforms, the intent had been that in 9.1 the $150 would be the reimbursement, but the employees would also be receiving what they term the chambray shirt and that the $150 is actually on top of the shirt itself. And then the clause continues:

PN54

With respect to the hours of work - - -

PN55

THE SENIOR DEPUTY PRESIDENT: Well, just a minute, just a minute. So they get $150 on commencement of employment plus a chambray shirt and other bits and pieces. Then after that, and I find this a bit hard to understand, they are given an annual allowance of $75 for full-time and $35 for part-time staff to maintain the dress code.

PN56

MR EBERHARD: And then at the same time they get an additional shirt.

PN57

THE SENIOR DEPUTY PRESIDENT: Each year, is it?

PN58

MR EBERHARD: Yes, on an annual basis, yes.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes. And then something about they can get second-hand ones and what is this about - what is the clause mean:

PN60

If the Centre is able to provide a piece of uniform handed in by another staff member who has left the employment and that shirt or jacket is deemed to be in good condition then the allowance will be reduced by 50 per cent.

PN61

What allowance? Is that the $75?

PN62

MR EBERHARD: Yes, that would be referring to the annual allowance that is referred to in 9.2?

PN63

THE SENIOR DEPUTY PRESIDENT: Why would that be reduced if another piece of clothing is - I see, that is instead of - to help maintain the uniform dress code, yes, I see. Well, what does the award say?

PN64

MR EBERHARD: I don't have the award with me, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: Well, why don't you, Mr Eberhard? You have come to make submissions asking me to certify an agreement.

PN66

MR EBERHARD: Look, I understand that and in that respect - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Well, I will adjourn this matter to a date to be fixed. You can come back properly prepared and deal with it then. You let my associate know when you want to come back. I will adjourn the Commission.

ADJOURNED ACCORDINGLY [11.25am]