AG2003/9293, Transcript of Proceedings [2003] AIRCTrans 5320 (2 December 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9293

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by Community Access Services of South
Australia Incorporated and Another for
certification of the CAS of SA Inc (2003)
Enterprise Agreement

ADELAIDE

9.30 AM, FRIDAY, 14 NOVEMBER 2003

PN1

MS H. JONES: I appear for Community Access Services of South Australia on behalf of the applicant, MS H. JONES. With me is MR M. BEACON from the Community Business Bureau and MS J. CURRAN, Chief Executive of Community Access Service of South Australia Inc.

PN2

MR D. PAYNE: I appear for Australian Services Union, MR D. PAYNE.

PN3

MS JONES: Sir, if the Commission pleases, this application is made under the Workplace Relations Act 1996 for the certification of the Community Access Services of South Australia Inc Enterprise Agreement 2003. The Community Access Services of South Australia Inc, and if I may refer to it as CAS in future references, is an organisation that provides access services to people with severe and multiple disabilities. The parent award is the Community Access Services Award 2000. The agreement shall be binding on the ASU and its members, CAS and all employees who are bound by the parent award whether members of the ASU of not. Sir, may I take you through the process undertaken to develop this agreement?

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. I mean you can take it as a given that I have read the statutory declaration and the agreement, but I am happy to be taken through whatever you want to take me through.

PN5

MS JONES: I will be very brief. The process of negotiating the agreement commenced in March and concluded in September 2003. Following the establishment of the terms of reference in the negotiation team, regular enterprise agreement meetings were held and minutes of the meetings were distributed promptly, usually within 2 days, to all EA representatives. Ten meetings were arranged with the EA representatives at least fortnightly to disseminate, seek and clarify and confer with other teams members. A newsletter was issued monthly to all staff members to update progress regarding the EA negotiations.

PN6

In addition to this, an external salary packaging provider attended an EA negotiation meeting and other team meetings to explain details about salary packaging, administration and the benefits to start. Following the conclusion of the negotiations staff were informed of the latest progress and the proposed voting process. All staff had access to a copy of the agreement no later than 14 days prior to voting taking place. Voting took place via a process in which voting slips were attached to pay slips or posted to employee homes if no hours were worked during that period. The staff were instructed to return the slip either via a voting box at each team location or via a stamped addressed envelope.

PN7

In accordance with the Act, the agreement was approved by a valid majority of employees. May I submit the returning officers report to you?

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MS JONES: In accordance with the Act, the application was made to the Commission to certify the agreement within 21 days of it being approved by staff. In respect to the Workplace Relations Act, the agreement includes procedures preventing and settling disputes. In respect of this I refer to clause 25 of the agreement. The agreement, sir, expires 2 years after the operative date which we seek to be 1 July 2003. The term of 2 years was negotiated following CAS management indicating that a major review of the operational aspects of its services will be conducted over the next 2 years in order to position CAS strategically within the sector.

PN10

In view of this, parties of the agreement agreed to this term to enable a new enterprise agreement to be developed which will better reflect the operational changes. We say that in respect of the Act, we have not discriminated between unionists or non-unionists, or discriminated against an employee for reasons provided in the Act. In respect to the Workplace Relations Act, we say the agreement meets the no disadvantage test, and provides for terms and conditions that do not result in the reduction in the overall terms and conditions of the employment contained in the award.

PN11

The key changes to the agreement are: Schedule 1 salary increases, 3 per cent for the first full period on or after 1 July 2003, 3.5 per cent for the first full pay period on or after 1 July 2004. Clause 9, termination and redundancy, this is an enhancement to the award conditions and includes severance payments that will be considered by management on a case by case basic at management discretion. Clause 11, hours of work standard, the ordinary hours of access work as in team leaders will be worked Monday to Sunday inclusive between 6.30 am and 7.30 pm. Clause 13, higher duties, is now a more flexible arrangement which allows an employee to qualify for higher duties, rather than requalify as previously required.

PN12

Clause 14, vehicle arrangements, all employees who have access to CAS vehicles will be required to comply with the policies relating to maintenance and correct use of motor vehicles. Clause 21, leave without pay, the qualifying period of 2 years has been introduced for any applications of leave without pay in excess of 5 days. Clause 22, special leave has been modified for clarification, the clarification being that pro rata entitlements apply and the application process. Clause 23, trade union training, a new clause modified to allow ASU to nominate two CAS staff members as the rep and deputy rep to attend trade union training.

PN13

Clause 24, study and conference leave, now includes clarification of pro rata entitlements. Clause 27, occupational health and safety clarification regarding journey insurance. Journey insurance will not continue to be provided should WorkCover legislation be amended to include this coverage. In the interim, CAS will maintain coverage subject to availability. Clause 28, quality, seeks a commitment by staff to work with CAS to gain certification in accordance with recognised quality management systems which is required as a condition of our funding. Clause 29, staff training and development, a commitment to establishing a training and development working group to investigate options, traineeships and to work collaboratively to identify future training and development needs of the organisation.

PN14

Clause 32, incremental advancement, an inclusion of a definition which clarifies the staff that an incremental advancement can comprise either a single or combination of anniversary date, qualification attainment dates and total hours worked. Moreover, the management is committed to reviewing incremental advances during the life of the agreement and introducing competency based remuneration increments. Clause 33 is the introduction of the option to allow staff to access salary packaging arrangements up to the gross amount of $27,537 per annum which will be administered externally.

PN15

Further to these changes, it is also important to record that as a result of the negotiations, but not recorded in the enterprise agreement, CAS has pledged to create up to 20 new part-time positions for staff currently employed as casuals. 12 of those positions were to be made available immediately. I am now pleased to report that in fact 25 part-time positions have been filled. In addition to this, and to further ensure further staff security, of those 25 staff they have been granted an open end balance of 6 month's sick-leave based on the pro rata average hours worked over the last 12 months.

PN16

Another initiative negotiated but not document in the agreement, but reflected in policy, allows staff to be able to access up to 10 days of sick-leave in any 1 year of carer's leave, rather than CAS's previous policy which only allows conversion of sick leave up to 5 days. Thank you sir, if the Commission pleases.

PN17

THE SENIOR DEPUTY PRESIDENT: Ms Jones, I will mark the statement by the returning officer as CAS1. Can you just confirm to me that there were no changes made to the agreement proposal subsequent to 16 September?

EXHIBIT #CAS1 STATUTORY DECLARATION BY RETURNING OFFICER

PN18

MS JONES: There were some typographical errors that were agreed with the ASU.

PN19

THE SENIOR DEPUTY PRESIDENT: I see, and as a result can you tell me when the agreement proposal was actually provided or made available to the employees prior to the vote?

PN20

MS JONES: The hard copy was made available on 16 September to all staff members.

PN21

THE SENIOR DEPUTY PRESIDENT: I see. It wasn't changed after that date?

PN22

MS JONES: A typographical error was changed.

PN23

THE SENIOR DEPUTY PRESIDENT: When was that change made?

PN24

MS JONES: I believe around 20 September.

PN25

THE SENIOR DEPUTY PRESIDENT: Was the amended document then made available to employees?

PN26

MS JONES: Not with the typographical error, no.

PN27

THE SENIOR DEPUTY PRESIDENT: What was the typographical error to which you are referring? Can you tell me? Sorry, there is no rush. It might be best if I let you look for that while I hear from Mr Payne.

PN28

MS JONES: I can answer that.

PN29

THE SENIOR DEPUTY PRESIDENT: You can answer it, right.

PN30

MS JONES: Clause 30 - sorry. The salary packaging was actually listed as 34 or 32 so we had to rearrange.

PN31

THE SENIOR DEPUTY PRESIDENT: I see, so it was just a clause number change.

PN32

MS JONES: Clause number change.

PN33

THE SENIOR DEPUTY PRESIDENT: I see. Thank you.

PN34

MR BEACON: Commissioner, if I may add that the CO has just advised me that the staff were informed about those changes. There is no change to the integrity of the document at all.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Payne.

PN36

MR PAYNE: Thank you, Commissioner. My submission will be brief Commissioner. I would just like to state for the record that the ASU supports Ms Jones' submission and the application for certification of the agreement. I would also like to state Senior Deputy President, that clause 4 the duration specifies the nominal expiry date of the agreement as being 2 years from 1 day of July 2003 and is within the requirements of the Act. We believe that the agreement meets the requirements of the no disadvantage test of the Act.

PN37

It also contains a dispute settling procedures and does not on balance reduce the overall terms and conditions of employment of employees covered by the agreement. Therefore, Senior Deputy President, given that the agreement does not on balance reduce the overall terms and conditions of employment of employees covered by the agreement, together with the agreement and statutory declarations meeting the relevant requirements of the Act, as well as having an endorsement from the employer and employees, we would be urging that the Commission certifies the agreement, if the Commission pleases.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Payne. Mr Payne, I am going to ask Ms Jones a number of questions about the agreement. You would be well aware from previous matters that my questions don't invite you to rewrite the document, but they rather go to the clarification of the intention of the parties. That set of questions fall into two broad categories, but firstly, there are questions that I will need to have regard to in the decision to certify the agreement and secondly, there are issues where if I didn't raise the question, I might regret not doing so in the future. Please feel free to jump up and agree or disagree with any comments that Ms Jones might make.

PN39

MR PAYNE: Thank you.

PN40

THE SENIOR DEPUTY PRESIDENT: Ms Jones, can I take you first of all to the title of the agreement. The statutory declaration expressed the full title of the Community Access Services of South Australia Incorporated, but am I to take it from both the agreement itself and your submissions that the parties want to the known as the CAS of SA Inc 2003 Enterprise Agreement. It matters not, but I thought I would raise the question for you. It depends, if I certify it, it depends what I put on the certificate?

PN41

MS JONES: We would prefer it to be in full.

PN42

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Now, then can I then take you to clause 9 of the agreement. How should I understand the exception to the adoption of Part G of the award in the form that is outlined in clause 9? It is an issue that comes up again a little later in the agreement.

PN43

MS JONES: Can I defer to Max Beacon?

PN44

MR BEACON: If the Commission pleases.

PN45

THE SENIOR DEPUTY PRESIDENT: I don't mind who answers my question as long as someone does.

PN46

MS JONES: Thank you.

PN47

MR BEACON: The matter was negotiated with the - CAS's position would be that it would take the minimum standards of notice and the allowable amount of leave prescribed in the award, that would be the position of CAS. CAS will have to consider each case on its merit should circumstances arise.

PN48

THE SENIOR DEPUTY PRESIDENT: So that in the event of termination of a person's employment, the award minimum will be complied with?

PN49

MR BEACON: Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: In terms of both notice periods and payment?

PN51

MR BEACON: Yes.

PN52

THE SENIOR DEPUTY PRESIDENT: But that additional payments might be made on a discretionary basis.

PN53

MR BEACON: Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Ms Jones, clause 13 on page 6.

PN55

MS JONES: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: The statutory declaration indicates that this is a reduction in the provisions of the award. How should I read it as such?

PN57

MS JONES: Sir, the statutory declaration I believe refers to it as an enhancement. 13.2, we have actually removed previous wording in there which required people to requalify every time they were going for higher duties. People now just require to qualify once only for higher duties. There is no re-qualification process.

PN58

THE SENIOR DEPUTY PRESIDENT: I see.

PN59

MR PAYNE: If I may, Commissioner.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Payne.

PN61

MR PAYNE: 13.2, we did have a look at this yesterday, sir, but 13.2 requires that an employee perform the duty for more than 2 days before they are entitled to the higher duties. 13.2 in this agreement states that:

PN62

Therefore women employees are required by the employer to perform all or substantially all of the duties of a higher position, the higher rate of pay will be paid.

PN63

It takes away the 2 day qualifying period in the second time, sir.

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Jones, clause 14 relates to vehicle arrangements. It refers to the CAS of SA Inc policies and procedures. Can you confirm to me that those policies and procedures are documented, that they are readily available to all relevant employees, and whether or not they might be changed during the life of this agreement?

PN65

MS JONES: Sir, the policies and procedures are available to all employees. They are provided as part of the induction process contained within the hand book and with all of the team offices. The change to clause 14 has previously only listed management would comply with the policies and procedures, and we are bringing in line the actual wording with an EA process to ensure that every single staff member will comply.

PN66

THE SENIOR DEPUTY PRESIDENT: Is it conceivable that those documented policies might be changed during the life of the agreement?

PN67

MS JONES: Yes, it is in consultation with staff members.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 16 on page 7 contains the words at 16.2, "Subject to further order of the Commission". It may well be that those words are simply extracted from the award, either in its current or previous edition, but can I take it that the parties don't really intend to provide for a capacity for a further order of the Commission in this respect?

PN69

MS JONES: Yes, I think I might defer it to Max.

PN70

MR BEACON: Yes. That clause was included at the time of the - between the allowable or when the legislation was changed to provide between the allowable matters to be included in the award. There was uncertainty at the time if that may be an allowable matter and it has just been taken from the award and included. I would say: yes.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Jones, while I am still on clause 16, 16.2.2 references the provisions of once again, clause (g)(ii) of the award. If I understand that reference correctly, the parties intend then that the notice provisions set out in clause (g)(ii) be applied, but that in the case of a transmission of business where the employee is given employment on a comparable basis with the new employer, the severance payments would not apply and the requirement for the employer to gain an exemption from subclause (g)(ii) would not apply. Is that an accurate understanding?

PN72

MR BEACON: Yes.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, it is. Thank you. Clause 18, and in particular 18.2 once again refers to study or conference leave provisions of this award. The intention, as I understand it is to refer to the agreement, particularly as the agreement addresses this issue in clause 24. Is that correct?

PN74

MS JONES: That is correct.

PN75

THE SENIOR DEPUTY PRESIDENT: Now, 18.4 provides for an employer contribution to the cost of the first aid training. In that regard, am I to understand that the substantial number of part time employees covered by this agreement would be categorised as permanent employees and hence would receive that full payment?

PN76

MS JONES: That is correct.

PN77

THE SENIOR DEPUTY PRESIDENT: Or do they receive a component of it, or none of it?

PN78

MS JONES: No, they have always received the full component.

PN79

THE SENIOR DEPUTY PRESIDENT: Clause 19.4 refers to agreed policy guidelines. Once again, are those documented guidelines?

PN80

MS JONES: Yes, they are.

PN81

THE SENIOR DEPUTY PRESIDENT: Are they readily available to all of the appropriate personnel and may they be changed during the life of the agreement?

PN82

MS JONES: Yes, sir. There is a possibility they may be changed but that is always in consultation with the staff.

PN83

THE SENIOR DEPUTY PRESIDENT: Clause 20 relates to personal and carer's leave. It is identified in the statutory declaration as a reduction in the provisions of the agreement. How should I read it as such?

PN84

MR PAYNE: Commissioner, if I may, I am just not quite sure I have got my statutory declarations in Part VI(4) and I have only got 11.2 and 21.3 as reductions.

PN85

THE SENIOR DEPUTY PRESIDENT: You are right, Mr Payne, and I am wrong. Thank you. You can disregard that question. If I can then take you to clause 25 which is the dispute and grievance process, with particular reference to 25.6 and stage III of the process, can you confirm to me that the capacity exists in the event that an employee is not a member of the ASU, or potentially any union, for that person to be represented by another union or another representative?

PN86

MS JONES: Yes, I can.

PN87

THE SENIOR DEPUTY PRESIDENT: Thank you. 26.2.2 states that:

PN88

The terms and conditions of the parent award in this agreement will apply to employees engaged after the date of operation of this agreement as they apply to existing employees.

PN89

Am I correct in reading this, as simply saying that - reflecting that the provisions of the Act, such that if there are new employees engaged in the future, then the award in the agreement will apply to them?

PN90

MS JONES: Yes.

PN91

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 27.5 refers to the Journey insurance policy, to which you referred. Is the nature and the duration of that insurance cover a matter which is documented for employees?

PN92

MS JONES: Yes, it is.

PN93

THE SENIOR DEPUTY PRESIDENT: It is readily available to employees?

PN94

MS JONES: Yes, it is.

PN95

THE SENIOR DEPUTY PRESIDENT: I gather from your advice to me that that - the nature and the duration of the policy would only be changed in the event of a change to the South Australian Workers Compensation system.

PN96

MS JONES: That is correct.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 29 refers to a training and development program, and once again, can I presume that is a documented policy? That it is readily available to employees and it may be changed during the life of the agreement?

PN98

MS JONES: It is a policy that is currently in development in consultation with the ASU and various different staff members of the organisation.

PN99

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now, clause 32 which is another of the clauses to which you referred, contains in the preamble the statement:

PN100

That management is committed to reviewing incremental advances during the life of this agreement and introducing competency based remuneration increments.

PN101

Does that stand as an invitation or an indication of the attention of the parties to vary this agreement so as to provide for those competency based remuneration increments during the life of the agreement, or to use the period of time for which this agreement operates to develop such an approach.

PN102

MS JONES: It is the latter, sir.

PN103

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 34, the first two award variations, more particularly, it says that:

PN104

There will be no further wage increases or changes in conditions sought or granted, except for those provided under this agreement and the award.

PN105

In that regard, am I to take it that if the award changes insofar as the award has application in terms of a conditions provision, then that provision would be picked up, but if there is an increase in the award rates then the agreement rates remain in place. Is that a fair understanding?

PN106

MS JONES: If the award rates were to exceed the agreement rates, then the award rates would apply.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes - then apply. Thank you, Ms Jones. Mr Payne, do you want to comment at all on any of Ms Jones' responses, or can I take it you are in agreement with all of them.

PN108

MR PAYNE: You can, sir. Senior Deputy President, the ASU concurs with the responses from my colleagues supplied to the Commission regarding the clarification of the clauses that the Commission sought.

PN109

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Payne. On the basis of the information provided to me today and that which is contained in the statutory declaration, I am satisfied the agreement meets the requirements of the Act, so that it should be certified. It was reached through a process consistent with the Act. It does not contain provisions which are contrary to the Act, has the necessary dispute resolution provision and is of a duration envisaged by the Act. It meets the requirements of the no disadvantage test. I will certify the agreement with effect from today. The certificate giving effect to that certification will be sent out to the parties within the next few days.

PN110

You will note that that certificate will refer to the various clauses about which I sought clarification. It will not however, detail the responses that I have been given, nor the information provided to me about other arrangements agreed between the employer and the union because those are recorded on the transcript of the proceedings, so that if it were ever necessary to have regard to either the questions I have raised or the information provided to me by you, Ms Jones, then that transcript becomes the appropriate vehicle. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and employees.

ADJOURNED INDEFINITELY [10.06am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CAS1 STATUTORY DECLARATION BY RETURNING OFFICER PN18