AG2004/1501, Transcript of Proceedings [2004] AIRCTrans 1601 (28 April 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1032

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2004/1501

APPLICATION FOR AGREEMENT ABOUT
INDUSTRIAL DISPUTE (DIVISION 3)

Application under section 170LS of the Act
by Liquor, Hospitality and Miscellaneous
Union - Northern Territory Branch for
certification of Central Australian
Aboriginal Programmes Unit Enterprise
Bargaining Agreement 2004

DARWIN

10.00 AM, TUESDAY, 20 APRIL 2004

PN1

THE DEPUTY PRESIDENT: I will take appearances please.

PN2

MS A. RIGBY: I appear on behalf of the LHMU.

PN3

THE DEPUTY PRESIDENT: Thank you. Go ahead, Ms Rigby.

PN4

MS RIGBY: Thank you. Your Honour, this is an application pursuant to part VIB division 3, S 170LS of the Workplace Relations Act 1996 to certify an agreement between the LHMU and Central Australian Aboriginal Alcohol Programme Unit Aboriginal Corporation hereby known as CAAAPU. The application to have the agreement certified was filed in the Commission on 31 April[sic] 2004. Your Honour, the agreement was made in accordance with s.170LS. The document was circulated for four weeks before a vote was conducted.

PN5

And there was majority support of persons employed at the time whose employment would be subject to the agreement generally approved this agreement. The terms of the certified agreement were explained to all staff affected by the agreement. This was done through numerous meetings. It was a very lengthy process in relation to this particular agreement. The information was also passed through the use of emails and newsletters. The agreement includes procedures preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement (see clause 21).

PN6

The agreement specifies a nominal expiry date. Here we have a slight hiccup. My counterpart in Alice, I did ask him to please put a particular date in. But as he is a little new, he still didn't put a date in, so it is three years from certification of today.

PN7

THE DEPUTY PRESIDENT: All right. Thanks.

PN8

MS RIGBY: The Commission ought to be satisfied. There is no reason why the agreement should not be registered and that it passes the no disadvantage test. If it pleases the Commission.

PN9

THE DEPUTY PRESIDENT: Yes, thank you. Ms Rigby, I just have a few questions on this. The first couple of questions relate to the no disadvantage test. If I can take you to the overtime provision in the agreement at clause 29. And particularly the paragraph that reads "overtime will be paid at the rate of one times the ordinary rate". Does that mean what it seems to mean, Ms Rigby, that overtime is in effect at ordinary time rates of pay?

PN10

MS RIGBY: No. At one times double time, time plus - it should be one by ordinary rate.

PN11

THE DEPUTY PRESIDENT: Yes. Well, one by the ordinary rate would be the ordinary rate would it not? Something multiplied by one is itself.

PN12

MS RIGBY: It should be at double time.

PN13

THE DEPUTY PRESIDENT: Yes. Well, it would seem to me that that is not very clear.

PN14

MS RIGBY: I can see the discrepancy, yes.

PN15

THE DEPUTY PRESIDENT: Let me just leave that for a moment, and take you to the annual leave clause at clause 39 which provides for 30 days annual leave per year, and the award provides for 35 days of annual leave per year. Now I note further, Ms Rigby, that there are one or two other areas and the one that springs to mind is the spread of hours. There is a slight variation between the spread of hours allowed for by the award and a greater spread allowed for by the agreement. I don't think that that in itself is something, given the pay rates that are included in the agreement would offend asfaras the no disadvantage test is concerned. However, it seems to me the overtime provision as it is currently worded - - -

PN16

MS RIGBY: I agree, your Honour. It needs to be clearer.

PN17

THE DEPUTY PRESIDENT: Yes. And the annual leave provision; if I take that on its own - and I will need to be convinced, Ms Rigby, that when this agreement is considered as a whole, that it doesn't represent any disadvantage to those employees whose employment will be covered by its terms given that it would seem, at least on its face, that there is a week's annual leave difference.

PN18

MS RIGBY: There is.

PN19

THE DEPUTY PRESIDENT: Now it may be that there are other advantages in the agreement that you can point me to that would provide an offset to that.

PN20

MS RIGBY: At this time no, your Honour, I can't. I'm not familiar with the agreement as it was written in Alice. I didn't even pick up myself that it was only 30 days compared to 35 in the mother award.

PN21

THE DEPUTY PRESIDENT: I have one other issue as well, Ms Rigby. It doesn't go the question of no disadvantage. It really goes to part 10A of the Act. And that is the provision for union membership which is at clause 55 on the third page along. At clause 55 begins - there is a number of pages at clause 55 - and it is the clause headed "union membership". Now, in my view, that flies very close to the wind asfaras being an objectionable provision pursuant to section 298Z of the Act.

PN22

And you would be aware that 170LU(2)(a) of the Act provides that "the Commission must refuse to certify an agreement if it is satisfied that the agreement contains an objectionable provision". I note that the provision promotes, or purports to promote union membership, rather than compel union membership. And it is simply that some of the wording, in my view, tends to get really pretty close to the wind; particularly the last paragraph. Now in respect of that I may be prepared to accept a suitably worded undertaking, Ms Rigby, that the use of that particular provision of the agreement would not be to compel union membership, which as you know, would be a breach of part 10A of the Act. But merely as it seems to state, to promote the benefits of membership to employees and prospective employees. And to go on to state that the union is cognisant of the requirement of part 10A of the Workplace Relations Act and would at all times comply with those requirements. But that is matter as to whether the union is prepared to proffer such an undertaking.

PN23

MS RIGBY: It is very close to part 10A isn't it?

PN24

THE DEPUTY PRESIDENT: Yes. In the circumstances, Ms Rigby - - -

PN25

MS RIGBY: The union would have no problem deleting that last paragraph altogether.

PN26

THE DEPUTY PRESIDENT: That is taking the union membership paragraph out? The trouble with that, Ms Rigby - - -

PN27

MS RIGBY: Is that it would have to go back to the vote.

PN28

THE DEPUTY PRESIDENT: - - - is it would have to go back to a vote. Yes. That would change the agreement substantially. We might just go off the record for a moment.

OFF THE RECORD [10.12am]

NO FURTHER PROCEEDINGS RECORDED