AG2004/1144, Transcript of Proceedings [2004] AIRCTrans 1164 (26 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N 315

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2004/1144

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Anglicare WA for certification of the
Anglicare WA Enterprise Agreement 2004

PERTH

1.10 PM, TUESDAY, 16 MARCH 2004

Continued from 16.02.04

PN49

MR D. JOHNSTON: I seek leave to appear again as agent on behalf of the employer, Anglicare WA. Also I seek leave on behalf of my colleague, MR E. REY, to appear in this matter.

PN50

THE DEPUTY PRESIDENT: Leave is granted. I'm on a fairly restricted time frame. I circulated or forwarded to you, classed as an issue report, and indicated in there is issues associated with certification on an application in terms of the no disadvantage test and the policy and procedures manual that is referred to in the disputes resolution clause. My concern with the no disadvantage test is that the statutory declarations indicate that there are no disadvantages or no reductions when compared to the various awards. I question the accuracy of that. For example, and I haven't reviewed these provisions comprehensively, but for example, clause 4.4, where redundancy provisions don't apply to limited term contracts.

PN51

For example, clause 4.5 regarding redundancy provisions, long service leave entitlements and other provisions, how they apply to part-timers. Clause 5.1. The spread of hours would appear to be different from those prescribed in the awards, as would the inclusion of Saturday. At least in some of the awards it is ordinary time work. Meal break provisions appear to be different to the awards. Call out provisions appear to be different to the awards. And when I say different to the awards, there would appear to be a disadvantage. I'm not inferring that on an overall basis there would be an on balance disadvantage but in order to make that assessment, we need to be clear about what the disadvantages as compared to the advantages are.

PN52

Clause 5.7, shift work. For example, even just the shift work loading on weekends, 50 per cent. I think some of the awards at least have 75 per cent loading. Clause 5.8, weekend work. On Saturdays at ordinary time rate of pay. That wouldn't appear to be provisions that are anything but a reduction compared to the award. So Mr Johnston, what I need is an accurate identification of provisions that are in the award that are in the agreement but less than the award, in order for me to be able to make an assessment.

PN53

A statutory declaration is intended to identify those issues to facilitate the assessment I'm required to make, but it seems to be, unless I'm misreading some of these provisions in the award, as I say, I haven't had a comprehensive review of them or an indicative one. Unless I'm misreading those, there would appear to be some disadvantages.

PN54

MR JOHNSTON: Yes. Yes, I understand the point you're making, Deputy President. If I could just talk to the statutory declarations first.

PN55

THE DEPUTY PRESIDENT: Yes.

PN56

MR JOHNSTON: The statutory declarations have been made by Mr Carter, who is the CEO of Anglicare and by two employee representatives who have participated in the negotiation process in relation to this agreement. Now, I think to put the statutory declaration in context, this is the third certified agreement affecting Anglicare. It is the third in a successive series and it was the impression of those making the statutory declarations that, because they had not altered any conditions within the certified agreement based on the previous one to the detriment of any employee and in fact had only improved on conditions, that there was no disadvantage I think was a misunderstanding, Deputy President.

PN57

THE DEPUTY PRESIDENT: I see.

PN58

MR JOHNSTON: They were not aware that they had to go back to the award and look at it again. On each occasion that this matter came before the Commission, it had to be assessed against the award.

PN59

THE DEPUTY PRESIDENT: Because the award can change, of course.

PN60

MR JOHNSTON: Of course. That is exactly right, Deputy President, but the terms and conditions - because the award has been ousted, if you like, the awards have been ousted for so long by the successive agreements, which have each gone for a period of time.

PN61

THE DEPUTY PRESIDENT: So what you're saying is employees and the employer tend to look at it on a basis of, well, that is what we've got and compare what we've got.

PN62

MR JOHNSTON: Yes. And the negotiation processes, I'm instructed, in relation to this current agreement, was that the consultative group went around employees and they met in groups and the issues to be negotiated and any issues to be put on the table were raised by employees.

PN63

THE DEPUTY PRESIDENT: Yes.

PN64

MR JOHNSTON: And that was raised vis-a-vis their existing conditions and in many cases, though there were no issues to be raised or there were some issues raised particularly in this agreement as an improvement to the conditions for people in remote locations.

PN65

THE DEPUTY PRESIDENT: I'm not suggesting, Mr Johnston, that there was any intentional purpose behind not identifying those issues. I'm not suggesting that at all and I'm conscious of the status and moral and ethical approach to employee relations at Anglicare applies.

PN66

MR JOHNSTON: Yes, thank you, Deputy President, yes. And the point I was making, there has been inconvenience to the Commission because those points have not been brought forward. It wasn't done as, the Deputy President rightly says, it wasn't done in a deliberate or deceitful manner. It was simply approaching the issue from a different standpoint.

PN67

THE DEPUTY PRESIDENT: Well, look, perhaps if I cut you short in your full swing, Mr Johnston, because what might expedite matters, what would facilitate the progress this certification is if rather than, and I suspect your intention is to go through all those issues now, but rather than do those on the record, if you can provide me or undertake to provide me with those award items that I need to be alerted to for the purposes of the comparison and any basis on which you may assert that there is on balance no disadvantage, then it will probably, well not probably, it will facilitate me making the assessment I've got to make.

PN68

MR JOHNSTON: Yes indeed, Deputy President. Perhaps again we're coming at this from different angles. We did provide to the Commission, it was fairly late, it was yesterday, a number of tables of comparison of what we believe are the major differences between the awards cited - - -

PN69

THE DEPUTY PRESIDENT: Well, I haven't received those. We may be at odds.

PN70

MR JOHNSTON: Yes, because the table had been prepared and there certainly are differences. In many cases the differences arise between various awards because Anglicare has attempted to lump everyone together as employees of Anglicare.

PN71

THE DEPUTY PRESIDENT: Yes.

PN72

MR JOHNSTON: And the various awards having different spread of hours, for example, for different categories of employee, the entire spread has been incorporated into the agreement but in practice employees are only rostered or required to work within the parameters which exist in the award, so much of the agreement's scope or flexibility does not apply to many of the employees.

PN73

THE DEPUTY PRESIDENT: Well, that is all explained in the documentation you've sent me, is it?

PN74

MR JOHNSTON: It is alluded to. I was intending to, at the hearing today, elaborate on that as required by the Commission. If the Commission is running short of time - - -

PN75

THE DEPUTY PRESIDENT: Well, I'm not in a position to go through that because I don't have the documentation in front of me and it might be, well, it will be more expeditious, I think, if I have the opportunity to view that documentation and anything else you may wish to put to me in writing on those issues I indicated. I can understand what you're saying, that Anglicare's objective, one of its objectives here, is to have all employees covered by the one agreement and that is very consistent with the objects of the Act indeed, so there will be probably necessarily swings and roundabouts, but I need to know what the swings and roundabouts are in order that I can make the assessment.

PN76

So despite it perhaps being a little frustrating and inconvenient to you and Anglicare, Mr Johnston, what I will do is I will adjourn. If that documentation you sent me yesterday has been mis-located or mis-directed somewhere, then I will ask my associate to contact you in order that you can provide another copy and any expansion on that, given the comments I've said this afternoon. Does that suit you?

PN77

MR JOHNSTON: Yes, Deputy President. It was our intention to expand on it, so perhaps a written expansion on that would be appropriate, sir, to assist the Commission, yes.

PN78

THE DEPUTY PRESIDENT: It might suffice and it might avoid the necessity for another formal hearing.

PN79

MR JOHNSTON: That would be in all our interests, I'm sure.

PN80

THE DEPUTY PRESIDENT: Yes, thank you. I am adjourned on that basis.

ADJOURNED INDEFINITELY [1.22pm]