AG2003/8936, Transcript of Proceedings [2003] AIRCTrans 5193 (25 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/8936

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(2) of the Act
by the South Australian Metropolitan Fire
Service and Another re South Australian
Metropolitan Fire Service (Federal) Enterprise
Agreement 2002 re variations including
insertion of new clause 28 - Promotion Policy
Procedures

ADELAIDE

10.25 AM, WEDNESDAY, 5 NOVEMBER 2003

PN1

MR D. BARRY: If it please the Commission, I appear for the Fire Service, with me as well, Commissioner, is MR R. SEDGWICK who is a Fire Commander.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Barry.

PN3

MR C. BROWN: If it please the Commission, I appear on behalf of Public Sector Workforce Relations.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Brown.

PN5

MR P. HARRISON: If it pleases the Commission, I appear for the United Fire Fighters Union of Australia.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harrison. Mr Barry?

PN7

MR BARRY: This agreement comes before you following an application under section 170MD of the Workplace Relations Act. This is a variation of the current South Australian Metropolitan Fire Service Enterprise Agreement 2002. This clause will come in to effect once certified by the Commission and until the nominal expiry date of the agreement between 1 January 2005. As stated in the application this variation is in consideration of the comprehensive review that was conducted Mr Greg Stevens formerly of this Commission who was engaged to review the existing promotion policies and procedures.

PN8

This resulted in the recognition by the parties of the existing promotion policies and procedures had become outdated and were in need of a review and I wish to have the industrial agreement in consideration of section 40A(6) of the South Australian Metropolitan Fire Service Act which requires the District Court to regard any criteria relating to the appointment and promotion of employees that it is contained in an award or an industrial agreement when considering appeals against promotions. At the completion of the Stevens review he tabled a report to the SAMFS that was then used as a benchmark for a series of negotiations between the parties.

PN9

The SAMFS then convened two forums on 5th and 9 May and which the proposed changes were explained to the employees and the opportunity given them to raise any queries and to have input in to the final draft of the agreement documents. The employees were advised of these forums by the promulgation by the SAMFS of memos advising what the dates and times and the intention of the SAMFS and view to use these documents as a basis for varying the agreement. Further, every effort was made to allow those employees who were on duty on the day of the forums to attend including facilitation of representatives from out-stations being able to attend the forum using Fire Service vehicles.

PN10

At the completion of the two forums the parties created a final draft document through negotiation. These documents were sent to every workplace on 15 July 2003 requiring all employees to read the policies and that the policies be displayed in the workplace for 1 month and then the policies are placed in the SAMFS folders applicable to the agreement. It is my understanding that the former UFU State Secretary, Mr Doyle, called a special meeting on 1 August 2003 and which it was unanimously resolved to seek this variation. Again, the Fire Service made every effort to ensure that those employees who were on duty at the time could attend.

PN11

As you aware, sir, we appeared before you previously in relation to this matter on 12 August. At that time we were unable to satisfy the Commission as to whether the proposed variation has been approved by a valid majority of employees whose employment is subject to the agreement and whether the employees subject to the agreement were given ready access to the proposed variation in writing at least 14 days before their approval for the proposed variation was given. To address these concerns the Fire Service has subsequently conducted a ballot of all employees covered by this agreement.

PN12

On 2 September a letter was sent to all relevant employees detailing the proposed variation and containing a ballot paper, of the approximately 650 ballots were sent out 325 were returned, of which 301 voted for the variation and 24 were against. Commissioner, it is my submission that the actions of the SAMFS as I have detailed and the United Fire Fighters Union as set out in Mr Doyle's statutory declaration in support of the variation comply with the requirements of section 170MD of the Act, in particular, subsection (a) in that a valid majority of the employees genuinely approve of the variation and that it does not offend the principles of the no disadvantage test. I request on behalf of the Fire Service that the Commission vary the enterprise agreement as per the application. If it pleases the Commission.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Barry, I have before me the statutory declaration of Mr Lepton.

PN14

MR BARRY: Yes, sir.

PN15

THE SENIOR DEPUTY PRESIDENT: Clause or paragraph (1)(b) refers to an attached letter, ballot paper and envelope. Will I find that material in the package before me?

PN16

MR BARRY: I would have thought so, sir, but if not I do have copies of same with me and I would happy to table them.

PN17

THE SENIOR DEPUTY PRESIDENT: It may be that they are there, but I must tell you that I have looked right through the document and I can't find them.

PN18

MR BARRY: Okay, and it may have been an oversight when the application was made, in which event as I say, I do have copies of the letter and the ballot paper with me if you wish me to table them now, sir.

PN19

THE SENIOR DEPUTY PRESIDENT: If you could, thank you. I shall mark the two documents that I have been provided here as MFS1 noting that the first document is a notice to all the employees and the second is a ballot paper. The notice to all employees is dated 2 September 2003.

EXHIBIT #MFS1 NOTICE TO ALL EMPLOYEES DOCUMENT DATED 2/9/2003 AND BALLOT PAPER

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Barry. Mr Brown, do you want to say anything in the matter?

PN21

MR BROWN: No, thank you, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Mr Harrison?

PN23

MR HARRISON: Your Honour, the union concurs with the submission made by Mr Barry on behalf of SAMFS and that we are satisfied that all the processes as we understood they would occur have occurred and we are happy and we are thankful for the cooperation that has happened during this process to vary the agreement and thank you, your Honour, for your guidance in the process as well.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Barry, can I take you to attachment A - - -

PN25

MR BARRY: Yes, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: - - - which details the actual variations that are sought to the agreement and the first of those variations is really as I understand it simply changing the contents provisions of the agreement to reflect the additional clause number 28?

PN27

MR BARRY: That is my understanding, sir.

PN28

THE SENIOR DEPUTY PRESIDENT: The second reflects a similar sort of more detailed provision. Even though I've read it 3 times, I think I follow it. The fifth proposes that I amend the new clause 29 which would be headed "Attachments", by adding appendix D. That is a correct understanding?

PN29

MR BROWN: That is my understanding. Yes.

PN30

THE SENIOR DEPUTY PRESIDENT: Now, if I look at the document that I've been provided with, appendix D is in fact a letter to Mr Doyle. Am I to take it that that is not what is intended but rather, it is the actual service administrative procedure number 40 that is referred to?

PN31

MR BROWN: Yes, Commissioner, I think the mistake is that the appendices that are attached in the application, that you are referring to, are actually the appendices to Mr Doyle's statutory declaration. The intention of the parties was that the SAP40 and Policy 50 - which I think are towards the end; in fact they are towards the end of the application - are to be appended and they would then become appendix D and E, respectively.

PN32

THE SENIOR DEPUTY PRESIDENT: I see. So appendix E in the documentation before me is in fact the United Fire Fighters' Union notice of special general meeting. It is not intended that document be incorporated in the agreement but it is intended that the South Australian Metropolitan Fire Service policy number 50, being the promotion policy, which is to be read in conjunction with SAP number 40, be included.

PN33

MR BROWN: That is correct, Commissioner. D would be SAP number 40 and E would be policy number 50.

PN34

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Now, Mr Harrison, are you in agreement with those changes?

PN35

MR HARRISON: Yes. We are, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information before me and indeed the advice provided to me today, I am satisfied that the application has been consistent with section 170MD of the Act and that a valid majority of employees whose employment is subject to the agreement have genuinely approved the variation which is now sought. I will make that variation in the form that I've now agreed with the parties, to reflect the adoption of SAP40 and policy number 50, with effect from today. That variation to the agreement will be put into effect by way of an order which will be issued to the parties within the next few days. That order will obviously not include reference to the erroneously numbered appendices but will refer to the SAP number 40 and the policy number 50. It will take effect from today's date and will apply for the duration of the life or nominal life of this particular agreement.

PN37

I congratulate the parties on reaching this agreement and on going through the process to get it certified. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.40am]

PN38

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MFS1 NOTICE TO ALL EMPLOYEES DOCUMENT DATED 2/9/2003 AND BALLOT PAPER PN20