AG2004/6199, Transcript of Proceedings [2004] AIRCTrans 3298 (23 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 13067

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

AG2004/6199
AG2004/6200

APPLICATION FOR DETERMINATION OF
DESIGNATED AWARD FOR CERTIFIED
AGREEMENT

Application under section 170XF of the Act
by South Coast Medical Service Aboriginal
Corporation for determination of designated
award for certified agreement

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by South Coast Medical Service Aboriginal
Corporation for certification of the South
Coast Medical Service Aboriginal Corporation
Certified Agreement (2004-2007)

SYDNEY

11.03 AM, WEDNESDAY, 11 AUGUST 2004

PN1

THE VICE PRESIDENT: Appearances thanks?

PN2

MR F. MATTESICH: If your Honour pleases, I appear for the South Coast Medical Centre, and with me, MR C. ARDLER, who is the CEO and MS F. SPEECHLEY who is an employee representative.

PN3

THE VICE PRESIDENT: Thank you very much, Mr Mattesich. In relation to the section 170XF application it seems to me that that's an unnecessary application because the applicant is named as a respondent in schedule 1 of the Health Services Union of Australia Aboriginal and Torres Strait Islanders Health Services Award 2002, so I'll do nothing further with that particular application and that file will be closed.

PN4

In relation to the primary application for the certification of the agreement, Mr Mattesich, I have some concerns about the no disadvantage test which I'd like to just canvass with you and we can work out how to go from here. Obviously at the end of the day I think it's an agreement that ought be certified particularly if the employees are happy with it but the Act requires me to apply the no disadvantage test. One of my associates has prepared a table, a copy of which is being handed down to you and if we could just run through it. To the extent that it's inaccurate, of course, please feel free to point that out.

PN5

The hours of work are effectively the same. The meal break is the same. The progression up the scale in the award appears to be something which is more readily defined than what it is in the agreement. That of course is a matter that can be dealt with by way of an undertaking by the Corporation that it will approach progressions in a way that's no less favourable than the award which I assume that the Corporation will be happy to give. The wage scales demonstrate an advantage in the agreement over the award.

PN6

MR MATTESICH: Do you want me to comment as we go?

PN7

THE VICE PRESIDENT: Yes, feel free.

PN8

MR MATTESICH: On the salary structure, your Honour, there is one item that wasn't readily defined. For the organisation's point of view the process in the agreement may not be an immediate issue. They're embarking on a salary structure virtually immediately but for the purposes of identifying what the salary scales are at the moment they've actually transposed what they are and put those in the agreement.

PN9

THE VICE PRESIDENT: Okay.

PN10

MR MATTESICH: In terms of how people will move a separate salary structure will be in the process of one of the objectives immediately. If your Honour wishes - - -

PN11

THE VICE PRESIDENT: It seems that under the award there's for practical purposes an automatic progression up the scale and no automatic progression provided for in the award or effectively automatic progression. Obviously if people are - I think the progression is automatic to the extent that performance is satisfactory under the award and because of the large range in salaries in the award it's very clearly conceivable that people could find themselves better off under the award than under the agreement in terms of automatic progression or effectively automatic progression under the award but not so under the agreement.

PN12

The overtime position is significantly better under the award than it is under the agreement because of the time and a half and double time provisions and no equivalent provision in the award. The uniform allowance is a small matter but the award has it. There's no provision in the agreement. The travelling allowance is satisfactory. The on call allowance is effectively the same. Again the recall allowance in the award is significantly better given that - I don't know the extent to which people get recalled but if people are recalled on any sort of regular basis they'll find themselves in a significantly better position under the award than under the agreement in that respect.

PN13

The personal leave for longer term employees, 21 days under the award and effectively 15 days under the agreement means that depending upon the structure of the work force that's again an area where the award may be significantly better than the agreement. Study leave, a minor disadvantage in the agreement but that's really neither here nor there. Dispute settlement I don't think bears significantly upon the equation although it's still a non monetary matter which can be brought to account. The provision in the agreement appears to allow access to the Commission, albeit only for conciliation purposes but only if both parties agree. Termination is better in the agreement than it is in the award.

PN14

The usual approach in a circumstance like this is for the Commission to ask the applicant to select a random group of workers typically just by choosing in alphabet order the first 10 employees and then do a calculation for say a month as to what they would receive under the award and what they would receive under the agreement having regard to the hours they worked in that month and that then gives a sense of whether or not on balance it is all satisfactory and I'm disposed to ask you to do that. I appreciate that it's a bit of a drama. There's no need for you to come back.

PN15

In the event that that analysis demonstrates that the agreement is superior for the first 10 alphabetically named employees in a selected month - the month of July would be an appropriate month, the pay periods that fall within July. Obviously you want to do it on pay periods rather than in the calendar month because the pay periods may fall over and that makes the calculations difficult. So that the best way to proceed is for that calculation to be done for it to be faxed to my chambers and if it shows that the agreement is more beneficial than the award then there's no need for you to come in and it can just be certified in chambers. If it doesn't then we'll need to unfortunately drag you back. I appreciate that this is a pain in the neck but unfortunately that's what the legislation requires me to do. Is there any pressing urgency in terms of getting the thing certified?

PN16

MR MATTESICH: No, your Honour.

PN17

THE VICE PRESIDENT: In that case you can take your time. Do you want a couple of weeks or a month?

PN18

MR MATTESICH: I think we'll probably embark on that straight away but I was going to make a comment that the view was on balance it should not be a disadvantage. There are some items in there that haven't been picked up and that is that there is a system of - for tax purposes salary equation can be actually discounted down and employees are - - -

PN19

THE VICE PRESIDENT: This is a salary sacrifice arrangement in relation to - - -

PN20

MR MATTESICH: Gross pay, so there is an advantage on that aspect of it.

PN21

THE VICE PRESIDENT: That is something that you'll need to note in the analysis.

PN22

MR MATTESICH: We'll do a full analysis on that. In terms of the overtime - - -

PN23

THE VICE PRESIDENT: If there's a significant amount of overtime worked or any significant amount of recall then - that's really, I think, my primary concern. I note that the driver has a lower bottom end in the agreement than the award but presumably there's very few drivers - - -

PN24

MR MATTESICH: Involved.

PN25

THE VICE PRESIDENT: Yes, so that when one does the on balance exercise the fact that there might be a single driver who would be marginally worse off is not going to be neither here nor there.

PN26

MR MATTESICH: We'll do the analysis and we'll include those comments which may not be obvious on the face of the agreement. The only item, I think, that was, and you've brought that up and that is on the actual movement within the salary scale. I've had discussions with the CEO and the staff that that's one of the tasks that needs to be done fairly quickly and that is a salary progression policy or procedure.

PN27

THE VICE PRESIDENT: If that's the only issue at the end of the day I think the better way is to deal with that by way of an undertaking that it will not be more disadvantageous than the award rather than requiring the organisation to make a firm decision now about what it's doing. I'm less concerned about that and more concerned about whether or not the overtime and recall may have an impact that means that on balance the agreement is less favourable than the award. But, as I say, if you undertake the analysis say with the first 10 alphabetical named employees for the two pay periods substantially covering July under the award and under the agreement and it demonstrates that the agreement is better than the award then I'd be more than satisfied.

PN28

MR MATTESICH: In terms of numbers, is it a percentage that you're looking for to give you a balanced - there's only 24 employees.

PN29

THE VICE PRESIDENT: 24 employees; make it eight, the first eight.

PN30

MR MATTESICH: 30 per cent.

PN31

THE VICE PRESIDENT: Yes. That ought not be a terribly difficult task. I imagine one person should probably be able to get it done in a day or two.

PN32

MR MATTESICH: Yes, a spreadsheet with the categories and do the - - -

PN33

THE VICE PRESIDENT: Yes, thank you. So what if I adjourn it for two weeks? As I say if it's completed - if you want more time you can have more time. If when it's completed and you've faxed it through it's clear that there's no problem then there's no need for you to come back. I'll just certify the agreement in chambers. I'm satisfied that the other requirements of the Act have been met. The dispute resolution procedure is, I think, less effect rather than more effective as dispute resolution procedures go, but the Full Bench in the Ampol decision has made it clear that there's no requirement for some external resolution of the dispute as a pre-condition to satisfaction of the requirement in the Act to have a dispute settling procedure. So I'm not disposed to require you to do anything in relation to that. In summary, I'll adjourn it for two weeks. Mr Ardler, is there anything you want to say?

PN34

MR ARDLER: No, your Honour.

PN35

THE VICE PRESIDENT: I'll adjourn the matter for two weeks. I'll expect a spreadsheet which compares the first eight alphabetically named employees for two pay periods substantially in July - you can select the pay periods - which sets out a calculation of what those eight employees would have received under the award and what they would have received under the agreement if its terms applied. As I say, if that demonstrates that they're on balance better off then there's no need for you to attend on the next occasion and I'll just deal with it in chambers.

PN36

MR MATTESICH: Especially it's easy on monetary terms but when it comes to less obvious things like sick leave and so forth if those people - - -

PN37

THE VICE PRESIDENT: No, it's only the money at the moment.

PN38

MR MATTESICH: Only the salary, that will be easier then.

PN39

THE VICE PRESIDENT: So it's really to assess the impact of overtime and recall.

PN40

MR MATTESICH: Recall and salary.

PN41

THE VICE PRESIDENT: Fine, thank you. I will adjourn the matter until 25 August 2004 at 9.30 am. If it's necessary to have a further hearing on that day it will be by video conference because I'll be in Melbourne that week. However, my expectation is that we won't need to see you again.

PN42

The matter is adjourned as indicated.

ADJOURNED UNTIL WEDNESDAY, 25 AUGUST 2004 [11.17am]