AG2004/1101, Transcript of Proceedings [2004] AIRCTrans 1683 (4 May 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 1648
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/1101

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by United Water International Pty Limited and
Others for certification of the United Water
Employees' Certified Agreement 2004

ADELAIDE

10.59 AM, FRIDAY, 23 APRIL 2004

PN1

MR T. MARKS: I appear for United Water along with MS A. MURPHY.

PN2

MR J. WILDER: I appear on behalf of the CEPU Electrical Commission and also the LHMU and the AMWU, who apologise for not being able to attend.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Wilder. Mr Wilder, I understand that Ms Buckler from the LHMU is going to endeavour to attend the Commission shortly.

PN4

MR WILDER: Yes, I believe so.

PN5

MR M. THORPE: I appear for the Community and Public Sector Union in this matter.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thorpe. I can advise the parties at the outset that I have read the - - -

PN7

MR FLEETWOOD: Senior Deputy President, can I make an appearance?

PN8

THE SENIOR DEPUTY PRESIDENT: Sorry, yes.

PN9

MR J. FLEETWOOD: I appear on behalf of the Association of Professional Engineers, Scientists and Managers Australia.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Fleetwood. My apologies for overlooking you. I can advise the parties that I have read both the statutory declarations and the agreement. I think it appropriate that I foreshadow to the parties that if I look back over the last 3 years, this would probably be very close to an agreement that I would describe as being the most convoluted in terms of its wording and its structure. It is an agreement that, on my read, I would have to consider that it has the potential to be read in a number of different ways and to be the source of some confusion and some uncertainty.

PN11

I need to foreshadow to the parties at the outset that, whilst I have a few brief questions about the process whereby the agreement was reached, I have a number of questions about the agreement itself. Those questions may in fact take me back to the process insofar as I will need to be satisfied that employees who voted in favour of the agreement, both had the agreement explained to them and were capable, given the structure of that agreement, of genuinely agreeing with it. So it might be best if I deal first of all with the initial process questions. Mr Marks, can you advise me of when it was that the agreement in its final form was made available to the employees?

PN12

MR MARKS: The agreement was made available to employees on 1 March.

PN13

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Can you advise me of how and approximately when the agreement was explained to employees? In that regard, I refer to question 6.6 in the statutory declaration.

PN14

MR MARKS: The agreement was explained to employees in a series of worksite meetings - - -

PN15

THE SENIOR DEPUTY PRESIDENT: And those meetings - - -

PN16

MR MARKS: - - - 13 work site meetings that took place between 4 March and 11 March, and both field-based employees were brought back into the depot to enable the agreement to be explained to those people and office-based persons and plant-based persons were also released from work to enable them to attend. So there were meetings from 7.30 am in the morning until 3.30 pm in the afternoon to enable a very large turnout of people to those meetings. As well as those meetings, there was a newsletter issued, and at the meetings a standard template presentation was given to employees covering some 15 slides to explain the agreement.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. I note, once again, in terms of the answer to question 6.6 in the statutory declaration that the voting slips were printed in English, Italian and Greek, Mr Marks.

PN18

MR MARKS: That is correct.

PN19

THE SENIOR DEPUTY PRESIDENT: The answer to question 6.3, with respect to persons from a non-English speaking background, indicates that this is not applicable. Am I to presume from that that the parties are advising me that there are no persons from a non-English speaking background covered by the agreement?

PN20

MR MARKS: No. There are persons from a non-English speaking background covered by the agreement. What we can't tell you is the number, because we have no method of collecting that data, but what we do know, as a fact of running our business, is that we have people where English is their second language; and over the course of the three enterprise bargaining agreements at United Water, we have taken efforts to make sure that people - predominantly these employees are either Greek or Italian - we have taken efforts to make sure that the agreement is explained to those people and, if there are questions from those employees that there are English or Greek-speaking people at the work site, to help them to understand and to answer those questions that might come up.

PN21

This is - I say the workforce has not changed manifestly in the last 8 years and this is the third agreement that has been explained to those employees.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Marks. Do any of the unions want to comment on the questions I have asked of Mr Marks relative to the process whereby the agreement was reached? I look to you first, Mr Fleetwood, given that I overlooked you earlier.

PN23

MR FLEETWOOD: No, I don't wish to add anything, Senior Deputy President.

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Thorpe?

PN25

MR THORPE: If I might add, Mr Senior Deputy President, with regard to the CPSU, I would advise that our profile and membership of the organisation are mainly clerical, professional type people, and language is not a problem. As far as the process on explanation, most of the staff, or I know all members have ready access to the HR area, they work in the immediate vicinity. So if the Commission is concerned about people not having easy access to understand either through the employer or through the unions the implications of the agreement, I would like to allay those concerns.

PN26

So far as the CPSU is concerned in consulting with membership, electronic email is the predominant method. We had consultative meetings at work sites at Greenhill Road, northern and southern, very poorly attended. People were quite happy to rely on the advice that came from the union that I could understand and gave their affirmation that they supported the agreement. They understood the agreement to be mainly a modification of existing agreements, so that, in effect to save trees, to use the colloquialism, to save printing enormous amounts of documents and the distribution and reprinting those matters that had not changed, the agreement that was presented to them was, in effect, a rollover of old agreements plus the variations of additional agreements.

PN27

Sir, I would give confidence to the Commission that the CPSU and its members were well aware of that intention and voted freely and of their own volition on that matter.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thorpe. Mr Wilder, given your multiplicity of hats?

PN29

MR WILDER: No, sir.

PN30

THE SENIOR DEPUTY PRESIDENT: I propose to ask Mr Marks a number of questions about the agreement. Can I take it that all of the union officials have a copy of the agreement?

PN31

MR WILDER: No, sir, I don't have a copy.

PN32

THE SENIOR DEPUTY PRESIDENT: I shall loan you a copy from the Commission's file, Mr Wilder. I should perhaps forewarn the parties that I do have a number of questions. In this regard I have particular sympathy for your position, Mr Wilder, where you are representing a number of unions. I will ask Mr Marks my questions, which don't invite him to rewrite the document, but they do go to my desire to clarify the intention of the parties and, as I said at the outset, they potentially give rise to questions about the extent to which employees understood the agreement prior to voting on it.

PN33

In the event that the questions that I ask are not capable of being answered by you, then I will indicate at the outset that I am very happy to give any of the parties the opportunity to ponder upon those issues and respond within a very limited time frame. But you will need to be forewarned that it might be best if I, rather than loaning you that copy of the agreement, donate it to you - - -

PN34

MR WILDER: Thank you very much, sir.

PN35

THE SENIOR DEPUTY PRESIDENT: - - - so that you can note on it the various clauses about which I have questions. I am taking it that all of the other union officials have a copy of the agreement.

PN36

MR MARKS: Indeed, sir.

PN37

THE SENIOR DEPUTY PRESIDENT: Mr Marks, once again I stress that my questions are not going to invite any party to rewrite the document; they will just go to issues of clarification. Am I to understand that clause 5 proposes, in effect, the adoption of what I will call the 1999 agreement?

PN38

MR MARKS: Perhaps if I could, by way of background, just give you a very short history of how the awards and agreements have evolved. The business commenced in 1996. At the time it had an award and a certified agreement, which was a transitional agreement, so the award was essentially, for all intents and purposes, the document that expressed the conditions of employment. The first enterprise agreement had a clause in it which required the parties to redraft the award, and that was not done, but rather the 1997 enterprise agreement effectively redrafted the award and consolidated what was four or five parts to an award into a single enterprise agreement. The effect of the '97 agreement was to override all of the provisions of the award, except where there was an inconsistency in the awards to have some life, but effectively it had no life at all.

PN39

The '97 agreement then became the '99 agreement, so it had some elements added to the '97 agreement in terms of what was negotiated in '99, but the '99 agreement, for all intents and purposes, overrides the relevant award. In the meantime, I think in about 2000, the award was restructured under the guidance of the Commission, so the interim award was upgraded with the assistance of the Commission under the allowable matters principle, but the '99 award still has the effect of overriding the conditions in the award. The award is there simply because we require to have an award.

PN40

THE SENIOR DEPUTY PRESIDENT: Except that if I look at the 1999 agreement, clause 8 of that agreement establishes that the agreement is to be read in conjunction with the award, except to the extent of inconsistency.

PN41

MR MARKS: That is true, I am not disputing that, but what I am saying from a practical point of view is that the enterprise agreement covers the field. So the '99 enterprise agreement - and I don't know if you have seen a copy of it - but the '99 agreement - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, I have a copy with me, because it is impossible to read this proposed agreement without looking at that 1999 agreement.

PN43

MR MARKS: That is correct.

PN44

THE SENIOR DEPUTY PRESIDENT: So that I should understand then that the intention of the parties, expressed in clause 5, is to adopt the 1999 agreement and, to the extent necessary, the award referenced in that agreement.

PN45

MR MARKS: Correct.

PN46

THE SENIOR DEPUTY PRESIDENT: But, in effect, to jettison in its entirety the 2001 agreement.

PN47

MR MARKS: That is right. The 2004 agreement totally overrides, removes, deletes, the 2001 agreement. So the hierarchy of determining a condition of employment at United Water is to start with the 2004 agreement to reference back to the 1999 agreement and to reference back now to the revised 2001 award.

PN48

THE SENIOR DEPUTY PRESIDENT: If I then take you down to clause 7 - the no extra claims provision - am I to understand that clause correctly in that the parties accept that additional claims may be made with respect to clauses 10, 12, 13 and 14 of the 1999 agreement?

PN49

MR MARKS: Those four clauses in the '99 agreement are clauses that allow some local facilitation of conditions of employment, if I understand them correctly.

PN50

THE SENIOR DEPUTY PRESIDENT: Clause 10.3 envisages that there may be variations made to the 1999 agreement.

PN51

MR MARKS: Under enterprise flexibility provisions.

PN52

THE SENIOR DEPUTY PRESIDENT: Am I to read that correctly in that I would understand that if an issue arises under the guise of enterprise flexibility, it may represent an extra claim that could be countenanced such that this agreement might then not cover or preclude a variation on that basis?

PN53

MR MARKS: That is correct.

PN54

THE SENIOR DEPUTY PRESIDENT: And if I looked at clause 12 of the 1999 agreement, is it correct for me to conclude that where a change which might have significant effects is proposed by United Water, then that change might give rise to a variation of this agreement in accordance with clause 7 of this agreement?

PN55

MR MARKS: That is correct.

PN56

THE SENIOR DEPUTY PRESIDENT: And if I looked at clause 13 of the 1999 agreement, which sets out the objectives of the agreement, am I to understand that if an objective or an issue arises relative to those objectives it might give rise to a claim which would not be precluded by this agreement?

PN57

MR MARKS: The same logic would follow.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you. And the same with clause 14?

PN59

MR MARKS: Correct.

PN60

THE SENIOR DEPUTY PRESIDENT: Perhaps before I ask a question about clause 8, I note Ms Buckler's attendance.

PN61

MS BUCKLER: My apologies, Senior Deputy President.

PN62

THE SENIOR DEPUTY PRESIDENT: I understand you were caught up in another matter before a different Commission. Perhaps for your benefit though, Ms Buckler, what I am doing is going through a number of questions about the agreement with Mr Marks. My questions obviously don't invite him to redraft the document, but they go to my understanding of the intention of the parties.

PN63

I have earlier commented that I am concerned that this agreement is of such a complexity that it gives rise to a very real question in my mind as to both the nature of the explanation provided to employees about the agreement, but also the extent to which people were genuinely able to make the agreement. I am proposing at this stage to work through all of the questions that I have with Mr Marks on the basis that if I don't hear anything contrary from the unions I will assume that the unions are all in agreement with his replies.

PN64

Mr Marks, can I then take you to clause 8, which relates to wage increases for 2003? First of all, the second paragraph of that clause provides for a 3.5 per cent or $24.50 per week increase, whichever is the greater. Is the 3.5 per cent calculated on the September 2003 increase, that is, including the 1.15 per cent?

PN65

MR MARKS: That is correct.

PN66

THE SENIOR DEPUTY PRESIDENT: And in the same way the further increase - - -

PN67

MR MARKS: They all compound.

PN68

THE SENIOR DEPUTY PRESIDENT: They are all based on whichever is the current rate?

PN69

MR MARKS: Yes. In fact, at some point in this hearing I can hand up a wages schedule which will - - -

PN70

THE SENIOR DEPUTY PRESIDENT: It might be an appropriate time that you do that now. I will mark that as UW1 and I propose to retain it on the Commission's file for future reference.

EXHIBIT #UW1 WAGES SCHEDULE DOCUMENT

PN71

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 9, and in particular 9E? Within what time frame are guidelines to be established for salary packaging provision?

PN72

MR MARKS: Clause 9 is in fact an identical clause to a clause that was in the 2001 Agreement.

PN73

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN74

MR MARKS: So guidelines exist, but in any event there - just bear with me a moment. In any event clause 25EB implementation gives the company a 6-week window from the date of certification to communicate the terms of the enterprise agreement to managers, supervisors and team leaders to ensure that the various parts of this agreement are implemented consistently throughout the duration of the agreement. So if for some reason those guidelines which are currently contained in the HR manual, a copy is provided to all of the unions, and no changes are made to the HR manual unless we consult with the five trade unions. If there was a need to change those provisions, there's a window of 6 weeks to do that.

PN75

THE SENIOR DEPUTY PRESIDENT: That human resources manual is readily available to all employees?

PN76

MR MARKS: Yes, it is.

PN77

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 10, in particular 10A, how, for the purposes of the no disadvantage test that I'm required to apply, do you say to me that I should assess that particular provision?

PN78

MR MARKS: The first thing to say is that at page 5 of the agreement in clause 10E(2)(f) that a disadvantage - a no disadvantage provision underpins the individual discussions between the company and an employee, and that has been a keenly debated issue in this round of negotiations, with the advocacy from the trade unions and their members to argue that the no disadvantage test must be applied and must be applied in this way. Employees - typically the consolidated salary provisions apply to employees who work in treatment plants and who work in what is called networks where there is a significant amount of work that is done outside of normal working hours.

PN79

Over the course of this business, a large amount of data has been collected on a plant by plant, work site by work site basis to enable both the company and indeed the employee to understand the pattern of work and the consolidated salaries are typically made up of an employee's base salary, which is never really an issue in dispute. They all have a classification level and that can be sourced, made up of allowances, and they are easy to understand and to calculate. All of the employees - well let us say the vast majority of employees that have a consolidated salary, also have a roster pattern of some sort, so a treatment plant for example has an on-call roster.

PN80

Frequency might be one in four, so 13 times a year that employee is on call. So they know that, all the employees at that work site know that and the consolidated salary agreement will indicate that frequency. Having worked out that frequency, they also know that in a treatment plant, that they come to work on a Saturday morning for 4 hours and they come to work on a Sunday morning for 4 hours. So again though, that is predictable and known. In addition to the Saturday and Sunday work, they also have in some work sites calls to their home, whereby they tend to a call through - it ultimately comes through a laptop computer.

PN81

For that, they receive a higher on call allowance. So it does not matter what the frequency is, because that is wrapped up in that allowance. They may be called back to work, but again, they know and we know what that pattern is, and every time they are called back to work, they fill out a particular form so that we continue to update the records, so we make sure that the pattern reflects the actual situation on the ground. Finally, the consolidated salary agreements have a provision in there called extraordinary overtime. So if something happens outside of those predictions, then there is a discussion between the employee and their supervisor, and an extraordinary overtime can be paid and in fact is paid.

PN82

If there is a grievance regarding a consolidated salary, then the grievance provision of this agreement applies to that grievance and it will be dealt with in the normal process of employee supervisor, ultimately involving the Commission, if such a grievance is unable to be resolved. I think the overriding fact is that consolidated salaries are not mandatory. The employee has to agree to the consolidated salary, or the consolidated salary does not go forward.

PN83

THE SENIOR DEPUTY PRESIDENT: The reference to no disadvantage contained in 10E should be taken as a reference to no disadvantage as against the award or their existing working arrangements? How should I take that?

PN84

MR MARKS: The no disadvantage is against the terms of the 2004 Enterprise Agreement and if you like, the underpinning '99 Enterprise Agreement, and the 2001 award, insofar as conditions of employment are concerned. I don't - there is some judgment then as to the frequency of say, a call out which it is impossible on an individual by individual basis to 101 per cent guarantee that that future pattern is going to be the same as that past pattern, but what we have put in place is (a) the opportunity to monitor those patterns, (b) the opportunity for extraordinary overtime when the predictions are obviously manifestly wrong, and (c) a grievance procedure.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you. If I look then at 10E(1), am I to understand then that the core CSA document will be drafted at some stage prior to October 2004?

PN86

MR MARKS: That is correct.

PN87

THE SENIOR DEPUTY PRESIDENT: With particular reference to the last part of that subclause, is there an opportunity for consultation, or consideration of those policies on the part of persons who may not be members of any union?

PN88

MR MARKS: The consultation process for the HR manual - any changes to the HR manual include managers and supervisor who are all custodians of that manual, and their employees, so I'm just having a look at - there are some 39 manuals and therefore there will be 39 plus the trade unions which are another 5. There will be 44 copies of proposed changes to this section for consultation, and they will remain open for consultation, from memory, for a 3-week period. Feedback will come back and then consideration will be made what the change should be and so there is, in answer to your question, yes, there is an opportunity.

PN89

THE SENIOR DEPUTY PRESIDENT: Clause 14 on page 7 relates to individual employment agreements. How should I understand that provision?

PN90

MR MARKS: The individual employment agreements were negotiated as part of the 19, sorry, part of the 2001 Agreement, so they have been in operation since 2001. They primarily relate to persons who are senior professionals, or senior technical officers within the company. They are a formal agreement which guarantees an annual review mechanism. Either party can opt out of those - that agreement and return to the conditions that are contained - to all of the conditions that are contained in this enterprise agreement, the underlying enterprise agreement and the award, and there is to be no disadvantage to an employee when you take into account the totality of that employee's terms and conditions of employment.

PN91

The actual reality of this clause is it enables these employees to go through a performance review which may reward them with a higher payment than they would otherwise be entitled to. That's the primary - - -

PN92

THE SENIOR DEPUTY PRESIDENT: That clause is limited only to the persons who are designated as senior employees.

PN93

MR MARKS: That is correct.

PN94

THE SENIOR DEPUTY PRESIDENT: Is there an agreed definition of senior employees or is it something entirely at the discretion of United Water?

PN95

MR MARKS: I think it would be fair to say that there was an understanding between the CPSU and APESMA of what a senior employee means. There are no individual employment agreements relating to any other respondent because their membership would not be at that level of the organisation.

PN96

THE SENIOR DEPUTY PRESIDENT: The next question I have relates to clause 15. Now, I understand that clause to be saying that notwithstanding that the provisions of clause 6 of this agreement define the application of the agreement of the basis of the 1999 classification structure, clause 15 then proposes changes to that structure. Is that a correct understanding?

PN97

MR MARKS: Again I just have to go back a little bit in history. The original United Water Award, the metal trades classifications have their origins in the State Government Instrumentalities Award and they were lifted in their entirety from the State Government Instrumentalities Award into our award. Between 1996 and 2001, the State Government restructured and rewrote the definitions of the Metal Trades, and we adopted that criteria in 2001, and those classifications formed an attachment to the 2001 Agreement, and this agreement simply brings that 2001 attachment forward to apply to 2004 and through to the life of this agreement.

PN98

THE SENIOR DEPUTY PRESIDENT: Let me make sure I've got that clear. Clause 6 of this agreement defines the application of this agreement to the classifications covered by the 1999 Agreement. Clause 5 of this agreement disregards in its entirety the 2001 Agreement. Clause 15 of this agreement says that, with regard to the metal trades classifications, the 2001 Agreement should apply - but that that agreement, or that classification structure will be reviewed during the life of this agreement.

PN99

MR MARKS: Yes, and that classification structure is attached to the 2004 Agreement as appendix A.

PN100

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN101

MR MARKS: Yes, it will be reviewed during the life of this agreement.

PN102

THE SENIOR DEPUTY PRESIDENT: Is it the intention of the parties to encapsulate the outcome of that review in the form of a variation to this agreement?

PN103

MR MARKS: Either in a variation to this agreement and/or to become part of the 2006 Agreement.

PN104

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 17 relates to the 9-hour break. Is it appropriate then that I would effectively read the provisions of clause 28.3 of that 1999 Agreement so as to simply insert 9 hours, whereas 8 hours pre-existed.

PN105

MR MARKS: That is correct.

PN106

THE SENIOR DEPUTY PRESIDENT: Clause 18 relates to the rest period after multiple disturbances. It talks of a paid rest break. Is that paid at ordinary time rates?

PN107

MR MARKS: Yes. Yes, it is.

PN108

THE SENIOR DEPUTY PRESIDENT: And clause 19.2(a) talks about an unreasonable hour. Given the structure of the agreement, should I take it that an unreasonable hour is an hour in excess of 11 pm?

PN109

MR MARKS: I think you could take it as 11 pm, although there may be situations where it could be earlier, depending on the start time of an employee.

PN110

THE SENIOR DEPUTY PRESIDENT: I see. If I then look at 19.2(b), and in particular the sentence that reads:

PN111

In the event that the incoming work is too much for the on-call crew to cover, United Water will make arrangements to complete the necessary work requirements which may include recalling an employee or employees back to work.

PN112

Am I to understand from that that the parties agree that there ultimately is a capacity to call people back, notwithstanding the restrictions imposed by that clause 19?

PN113

MR MARKS: The restriction proposed by that clause 19(b) relates to what is called the on-call crew. The on-call crew is a crew that is rostered in advance to be on call for a week. There are, in most instances other crews that are not rostered on in that particular week. So that reference is to calling a crew that is not the on-call crew.

PN114

THE SENIOR DEPUTY PRESIDENT: And relative to clause 19(d), am I to understand then that the provisions of clause 28.4 of the 1999 agreement, which refer to a minimum payment at the appropriate rate, is simply replaced by the concept of 3 hours pay at double time?

PN115

MR MARKS: That is correct.

PN116

THE SENIOR DEPUTY PRESIDENT: Clause 21 relates to allowances. It talks of a 4 per cent increase, effective from the same date as the wage increase each year. In 2004 there are in fact two wage increases, one in February and one in November. So when should I understand the 4 per cent increase to allowances applies in 2004?

PN117

MR MARKS: To both wage increases.

PN118

THE SENIOR DEPUTY PRESIDENT: So there would be an 8 per cent increase?

PN119

MR MARKS: That is correct.

PN120

THE SENIOR DEPUTY PRESIDENT: If I can take you to clause 21.3 and to the last paragraph in that sub-clause, how does that base rate increase relate to the increases that are established in clause 8.1?

PN121

MR MARKS: The field work allowance for the construction and maintenance stream is contained within the wage rates for the construction and maintenance group. If you just go to UW1, which was handed up this morning, and go to the second page, there's an explanatory note.

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 22.1 relates to the sick leave bank. Am I to understand that sick leave bank would come into effect from the certification of this agreement?

PN123

MR MARKS: The sick leave bank was introduced as part of the 2003 agreement - sorry, the 2001 agreement - and has therefore been in place and continues in place, so there's - - -

PN124

THE SENIOR DEPUTY PRESIDENT: So the words:

PN125

...in recognition of this, United Water will introduce a sick leave bank with the following provisions...

PN126

Are in fact intended to reflect that a sick leave bank exists as a result of that 2001 agreement?

PN127

MR MARKS: That is correct.

PN128

THE SENIOR DEPUTY PRESIDENT: Presumably the good health rebate scheme, established in 22.2, is something that comes into effect only as a result of this agreement, is that correct?

PN129

MR MARKS: That is correct; and applies from 1 July 2004.

PN130

THE SENIOR DEPUTY PRESIDENT: Clause 22.4 relates to requirements for a medical certificate. It references a change to clause 33.4 of the 1999 agreement. How should I understand that change?

PN131

MR MARKS: The '99 agreement had 4 days that could be taken without a doctor's certificate as either for single days, two lots of 2 days or any other combination between those two limits. This agreement removes the option of taking the 2 days - that is the first change - so the days have to be taken without a doctor's certificate as single days, not as multiple days. The second change relates to sick days taken either side of a weekend. The '99 agreement required a doctor's certificate for days taken either side of a weekend, and this agreement removes that need.

PN132

THE SENIOR DEPUTY PRESIDENT: Clause 23 relates to labour hire conversion. It commences with the words:

PN133

United Water employs labour hire contractors for periods of up to 6 months.

PN134

During that 6-month period is United Water employing the labour hire employees or is it contracting with a labour hire company?

PN135

MR MARKS: It is contracting with a labour hire company.

PN136

THE SENIOR DEPUTY PRESIDENT: So that, in effect, the employment offer that is referenced later in that clause is an offer of employment such that the person who I will call a labour hire contractor would be changing from being an employee of that labour hire firm to an employee of United Water?

PN137

MR MARKS: That is correct.

PN138

THE SENIOR DEPUTY PRESIDENT: Clause 24 talks of the training and development manual. Am I to understand that the intention of the parties in that regard is that that manual may be changed during the life of this agreement with respect to skills and competencies?

PN139

MR MARKS: This is a provision that will primarily apply to professional engineers, professional scientists and other professionals employed by United Water, and is likely to see some further attention given to the way in which we manage career and professional development for that category of employee, and those changes will be reflected in the training and development manual, and the two organisations with an interest in that area, along with the general work force with an interest in that area, will be consulted.

PN140

THE SENIOR DEPUTY PRESIDENT: Clause 26 relates to the dispute settlement procedure. If I can refer you to 26.7, what happens if the parties are unable to agree on a mediator? Perhaps I should be more specific. Should I understand that the provisions of clause 26.8 would allow the Commission to arbitrate upon the appointment of an agreed mediator in the absence of agreement to that effect, notwithstanding that the mediator appointed by the Commission may be itself?

PN141

MR MARKS: Clause 26.8 clearly allows the Commission to arbitrate on any matter in this agreement with the agreement of the parties. In the alternative, the Commission would have a right, as a conciliator, under 26.7 to conciliate around the question of the appointment of a mediator, and, you are quite correct, that mediator could be the Commission. So the Commission could have a role as conciliator, the Commission could have a role as arbitrator and the Commission could have a role as mediator.

PN142

THE SENIOR DEPUTY PRESIDENT: Can I then take you to the consultative committee charter, which I think is appendix C? Clause 4 of that charter sets out an alternative somewhere between 4.3 and 4.4. Who determines which of those two arrangements would apply?

PN143

MR MARKS: I'm sorry. That also comes out of the 2001 agreement, if I can just consult that.

PN144

THE SENIOR DEPUTY PRESIDENT: Perhaps I will make it easier. It might make it easier, Mr Marks, if I raise with you the next question before you answer that one. Clause 14 of that charter references the attached EB process model 2001. I don't actually see that attached, and that gives rise to a question such that should I understand that the intention of the parties is that that consultative committee charter should be read in concert with the relevant provisions of the 2001 agreement, notwithstanding that that agreement is not otherwise referenced or relied upon in terms of this agreement?

PN145

MR MARKS: There is an appendix A, which is attached to the appendix C of the 2001 agreement, which is a list of the names of employees. I don't know that that helps me answer the question. If we go back to 2001 - I think my friends have identified a table which is the front page - - -

PN146

THE SENIOR DEPUTY PRESIDENT: I do not have the 2001 agreement.

PN147

MR MARKS: If we go to the 2004 agreement, appendix B is the enterprise bargaining process model.

PN148

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN149

MR MARKS: I believe that what has happened in the preparation of these documents is that appendix A at page 2 that is referred to should in fact read appendix B.

PN150

THE SENIOR DEPUTY PRESIDENT: I see. So the reference in appendix C, 4.4, to appendix A should read appendix B?

PN151

MR MARKS: That is correct.

PN152

THE SENIOR DEPUTY PRESIDENT: Then how does that help me in terms of the question that I asked about clause 14 of appendix C?

PN153

MR MARKS: I'm sorry. Could you just repeat that question?

PN154

THE SENIOR DEPUTY PRESIDENT: Clause 14 states that the communication process is in accordance with the attached EB process model 2001. Should I understand that to be appendix B?

PN155

MR MARKS: Appendix B, yes.

PN156

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Marks. I address my next question generally to the unions. Is there any area of disagreement with the responses that Mr Marks has provided to my questions? I will take it that everybody is in agreement.

PN157

MR THORPE: Sir, if I may, perhaps to give the Commission some rest and some reassurance. Similar to Mr Marks, I am one of the few people in this room who has been around since about the genesis of the company, and it has been a difficulty in trying to establish a document which retains core conditions in terms of - poor conditions in terms and conditions of employment, but yet vary that subsequent to it. Now I can remember at the time going back in - I think I would refer back to '97/'99 when there was some very vigorous debate between the parties on the vehicles that we should actually use to facilitate that, insofar as there was the award restructuring process I think you may well remember.

PN158

I can understand the concern of the Commission today in the ambiguities that may be appearing before the Commission. If it helps the Commission, I can say, particularly on behalf of the CPSU - and I don't think it would be unreasonable to say on behalf of my good friends in the unions at that time - that clearly the intent of the structure that is in place today reflects the intent at that time, if that helps the Commission at all.

PN159

THE SENIOR DEPUTY PRESIDENT: Since you are on your feet, let me make a couple of brief observations. The questions that I've asked go to the need that I clarify with you that you are satisfied that, notwithstanding some uncertainties inherent in this document which have given rise to my question, we have in this instance a situation where a valid majority of the persons to be covered by the agreement, who are represented by your union, have genuinely made the agreement on the basis of an explanation of the terms of that agreement.

PN160

MR THORPE: I could answer that with regard to those provisions in this agreement which would reflect to my membership, if I can use that term, sir. As for the other unions, I would have to defer to them.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes. I will ask the other unions the same question in a moment.

PN162

MR THORPE: But I could give that commitment to this Commission, sir.

PN163

THE SENIOR DEPUTY PRESIDENT: Secondly, let me make an observation that I won't repeat for the other unions. What the parties write into documents of this nature is very largely a matter of their own business. The concern that I am flagging to the parties now has two critical elements to it. First of all, you have a document of such complexity that to add too much complexity to it in the future, I consider that you are quite possibly going to run into difficulties on the issue of establishing to the Commission that the agreement was genuinely made, simply because of the level of complexity associated with it.

PN164

Do not take it the wrong way, but you and Mr Marks, together with myself, are all growing older. If the custodianship of the intellectual content of this agreement rests with you, then there is, from a practical perspective as well as an obligation under the Act, a potential issue associated with the level of complexity of the document on that question of whether or not it was an agreement that was genuinely made.

PN165

The second observation I would make is that the agreement establishes a dispute resolution provision in accordance with the Act which envisages that the Commission might be called upon as a last resort. The provisions of section 170LW of the Act establish a discretion available to the Commission in that regard. That discretion is such that I am putting all the parties on notice that if, in a couple of years time, I am given a replacement to this agreement which either maintains or indeed extends the level of complexity, you will need to present some argument to me as to why it is the Commission should approve its involvement in such a dispute resolution process.

PN166

Because to put it in very colloquial terms, you have here a monster and whilst the monster might be contained in a cage now, I am alerting the parties to the potential risk that it might escape at some stage.

PN167

MR THORPE: Thank you, sir

PN168

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Fleetwood, can I take it that you are in a position to similarly advise me that you are satisfied that a valid majority of the persons - members of your union, have genuinely made the agreement in the context of the various questions I have asked of Mr Marks?

PN169

MR FLEETWOOD: Yes, Senior Deputy President, I am able to give you that commitment.

PN170

THE SENIOR DEPUTY PRESIDENT: Ms Buckler?

PN171

MS BUCKLER: Yes, Senior Deputy President, I can give that commitment.

PN172

THE SENIOR DEPUTY PRESIDENT: Thank you. And lastly, Mr Wilder, wearing your two hats, are you in a position to similarly advise me?

PN173

MR WILDER: Yes I am, Senior Deputy President.

PN174

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the information provided to me today, I am satisfied that the agreement was reached through a process consistent with the Act. I am similarly satisfied that the agreement is consistent with the Act. It is an agreement that meets the requirements of the no disadvantage test; it contains the necessary dispute resolution provisions; is of a duration envisaged by the Act and does not contain provisions which are contrary to the Act.

PN175

I will certify the agreement with effect from today. The certificate to that effect will be forwarded out to the parties within the next few days. It will detail the various clauses about which I have sought clarification. It will not detail the answers that I have been given because those are recorded on the transcript of these proceedings if it is necessary to have regard to them. I congratulate the parties on reaching an agreement of this complexity and sincerely hope that you are able to put it into effect such that it benefits both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [12.04pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #UW1 WAGES SCHEDULE DOCUMENT PN71