AG2004/2946, Transcript of Proceedings [2004] AIRCTrans 2159 (9 June 2004)

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ADMINISTRATOR APPOINTED

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 1799

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BARTEL

AG2004/2946

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by The Australian Workers' Union - Greater
South Australian Branch and Another for
certification of the District Council of Cleve,
(AWU) Enterprise Bargaining Agreement No 5 2004

ADELAIDE

10.55 AM, MONDAY, 31 MAY 2004

PN1

MR L. DEGENHARDT: I represent the employees of the Cleve District Council on behalf of the Australian Workers Union. We are seeking to have this application - - -

PN2

THE COMMISSIONER: Before you go on, I will just get the appearance from the other side.

PN3

MR DEGENHARDT: I'm sorry.

PN4

MS T. BORG: I represent the District Council of Cleve, if it pleases the Commission.

PN5

THE COMMISSIONER: Yes, thanks, Ms Borg. Yes, Mr Degenhardt.

PN6

MR DEGENHARDT: Commissioner, this application is by the Australian Workers Union and another. We are seeking to have this agreement ratified under section 170LS, and on behalf of the employees and the District Council of Cleve this is virtually a roll-over agreement. The only change would be that we have gone for a parity above the award, which is in clause 23, where it says, "Wage adjustments," and "will maintain 14 per cent above the Local Government Award at all times." That is due to the fact of the CPI increases, and that 14 per cent will remain in force for the duration of the agreement.

PN7

THE COMMISSIONER: What does that actually reflect in terms of an initial increase for the workers?

PN8

MR DEGENHARDT: Well, the workers, after a series of meetings, have decided that the CPI increases, Commissioner, were eroding away their benefits, and we believe that the 14 per cent above the award gives the employees an annual increase of around about $25 per week, and over 3 years that reflects about $75 to $80, and - - -

PN9

THE COMMISSIONER: But in terms of an initial increase? I mean, I gather that any future increases will be based on whatever the award moves by through safety net adjustments.

PN10

MR DEGENHARDT: Yes, that is right. When variation of the awards is finalised by the Commission, it will be then 14 per cent above that initial award rate.

PN11

THE COMMISSIONER: But initially it is estimated that it is around $25 per week initial increase.

PN12

MR DEGENHARDT: That is right, yes.

PN13

THE COMMISSIONER: All right. Now, there was just an issue in relation to clause 19 and clause 20, which are the dispute settling procedure and the enterprise agreement disputes clause respectively. Both of those matters refer to a process which ends with reference to the South Australian Industrial Relations Commission. Now, that is not a possible thing to do under a Federal agreement.

PN14

MR DEGENHARDT: Okay. Actually, my colleague, Tina, rang me on Thursday about that, Commissioner. We were told by Senior Deputy President O'Callaghan 2 years ago that we had to refer to one or the other, and that was the instructions that I gave to the Cleve District Council.

PN15

THE COMMISSIONER: Okay. Perhaps I will hear from Ms Borg on that. My understanding was that if it is a Federal agreement and there's a dispute settling procedure under a Federal instrument, that it needs to be dealt with by the body to whom the agreement is - - -

PN16

MR DEGENHARDT: Commissioner, we had a similar with another council on the West Coast, and we requested that we have both the Federal and the South Australian industrial system in it, and we were referred to that we could only have one, and we had to name that particular - - -

PN17

THE COMMISSIONER: I am not sure. It may have been that what was being addressed by SDP O'Callaghan at that stage was simply saying that you have got to identify who the procedure is going to, or otherwise you will end up with an argument, rather than him indicating that the SAIRC was a body to whom disputes could be referred under a Federal agreement. But I might take that one on notice, because, having said that, I'm not entirely sure now that you have raised it. I might need to check that out myself. Was there anything further, Mr Degenhardt?

PN18

MR DEGENHARDT: No, thanks, Commissioner. That is all I have to say.

PN19

THE COMMISSIONER: Right, thank you. Yes, Ms Borg.

PN20

MS BORG: If it pleases the Commission. The District Council of Cleve also viewed this as a roll-over agreement, and would certainly support its certification. In terms of the dispute resolution clause, I understood, as did my friend, that as long as one of the jurisdictions was referred to that was something that could be certified, and that also was as a result of a case with Senior Deputy President O'Callaghan, which I believe actually ended up doing just that. It actually ended up referring to the State jurisdiction, so we would take that on advisement.

PN21

I have talked to the council about it, and obviously this is a technicality they probably don't fully understand, but have said that whatever the Commission finds to be the most appropriate jurisdiction they are happy to go with.

PN22

THE COMMISSIONER: One of the issues about that is that the State Commission's jurisdiction to deal with Federal matters is a bit of a concern, and if it is exercising a State jurisdiction then it is limited in what it can deal with - - -

PN23

MS BORG: Can deal with, I would tend to agree.

PN24

THE COMMISSIONER: - - - relative to the Federal Commission. What I might do is I will take that on notice and I will give, if you like, an in principle certification today; and then I will check that out, and if everything is fine then I will issue the certificate. If there are any problems, then I will refer it back to the parties if any changes are needed. Hopefully, there won't be, but I just have a bit of a concern about that, so I will check that out.

PN25

MS BORG: Thank you, Commissioner.

PN26

THE COMMISSIONER: With that proviso - that is, that I will just check the dispute settling procedure in clause 19 and the procedure for dealing with enterprise agreement disputes in clause 20 - I am certainly satisfied that the agreement meets all the statutory requirements: that it was filed within 21 days, that it contains a dispute settling procedure, that the life of the agreement is less than 3 years, and that the employees genuinely approve the making of the agreement.

PN27

Subject to that one proviso, I would indicate that I will certify the agreement. Pursuant to section 170LT of the Act, the agreement will operate by agreement between the parties from 23 May 2004 and will have a nominal expiry date of 23 May 2007, the agreement is binding on the District Council of Cleve and the AWU in respect of its members employed by the council, and once I am satisfied about that particular matter I will issue a certificate, and, if not, then I will advise the parties and perhaps call the matter back on.

ADJOURNED INDEFINITELY [11.05am]