AG2004/3394, Transcript of Proceedings [2004] AIRCTrans 4284 (4 November 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1073

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2004/3394

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 Nhulunbuy Child Care Centre
Enterprise Agreement 2004

DARWIN

1.45 PM, TUESDAY, 26 OCTOBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: I will take appearances please.

PN2

MR J. BURKE: If the Commission pleases, I appear on behalf of the LHMU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Burke.

PN4

MR R. BLOHM: I appear on behalf of Nhulunbuy Child Care Centre.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Blohm. I've read the agreement and the statutory declarations filed. Mr Burke, is there anything further?

PN6

MR BURKE: The LHMU has nothing further to add to those documents, Commissioner.

PN7

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Mr Blohm?

PN8

MR BLOHM: Your Honour, I would ask that the Commission certify this matter under 170LS. The agreement was made after a series of meetings between staff and the management of the Child Care Centre to replace their previous agreement. After the first draft was put to the staff, they rejected it and asked that the management committee revisit a whole number of claims, which they did. An amended draft was put to the staff on 3 September and a ballot was called on 1 October. They allowed a fairly lengthy period because there were some staff absences at the time.

PN9

When the ballot was counted it was voted seven for and one against. And that was out of a possible number of 10 staff members. Perhaps if I could just point out a couple of the benefits within the agreement, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN11

MR BLOHM: The workers at the Child Care Centre will achieving roughly a hundred dollars per week pay increase which is around about 22.5 per cent above the award. This is in recognition of the high cost of living that occurs on the Gove area or at Nhulunbuy. We also included the mechanism to maintain wage parity over the life of the agreement. Some improved access to long service leave as an incentive to retain staff. Some small increases in the allowances, improved conditions for casuals and we also inserted an additional increment level for level 5 which was not in the award, so just to provide consistency through the award. I, again, ask the Commission to certify this agreement.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Mr Blohm. This is an application for certification of the Nhulunbuy Child Care Centre enterprise agreement 2004, an agreement made pursuant to section 170LS of the Act. The parties to the agreement are the Liquor, Hospitality, Miscellaneous Union, Northern Territory Branch and the Nhulunbuy Child Care Centre management committee employers. I'm satisfied that having regard to the material filed and the submissions of Mr Blohm and Mr Burke that the agreement satisfies each of the requirements of section 170LT of the Act. Further satisfied that nothing in the agreement prevents certification of the agreement having regard to section 170LU of the Act. Further, I'm satisfied that the agreement deals with matters pertaining to the relationship between employer and employees within the meaning of section 170LI of the Act having regard to the High Court of Australia decision in Electrolux of September of this year and the more recent decision of Vice-President Ross in print PR952656.

PN13

In that regard I've carefully considered each of the provisions in the agreement, but in particular, those within part 5, award compliance and union related matters. I'm satisfied that clause 26, "time and wages records", is incidental and ancillary to the employment relationship maintaining the terms of the agreement and supporting the effective operation of substantive provisions. I'm satisfied also that clause 27, "staff meetings, union meetings, conferences", pertains to the employment relationship.

PN14

Substantive provisions in clauses 27.1 and .2 provide in effect leave from normal duties for particular purposes prescribed and is of the nature of leave, a matter which pertains to the employment relationship. Clause 27.3.5 imposes limitations upon employer's capacity to direct attendance at meetings, conferences and prescribes a payment of allowance in relevant circumstances. They are again matters pertaining to the employment relationship. Clause 27.6 is definitional and a necessary machinery provision.

PN15

Clause 28, "union membership", is not of the nature of a provision found by Vice-President Ross in Ballantynes to be not of the requisite relationship, paragraph 170. The clause as a whole simply recognises the role of the union in the development and implementation of the agreement and in its terms and effect is distinguishable from the provision similarly titled but differently expressed, dealt with by Vice-President Ross.

PN16

Clause 29, "union noticeboard" is an ancillary or incidental matter pertaining to the employment relationship being ancillary to the union role in ensuring compliance of the terms of the agreement reflective of the union role in the "disputes procedures" within the agreement. Clause 30, "job delegates", is in comparable terms to that considered by Vice-President Ross in Ballantynes and found to be a matter pertaining to the employment relationship. The clause and substance provides for leave which is a matter pertaining to the employment relationship.

PN17

Clause 31, "posting the agreement", is clearly a machinery, an administrative clause associated with the agreement. I'm satisfied therefore that there is no provision within the agreement which does not pertain to the employment relationship. Accordingly, there is no term of the agreement which would prevent certification. Accordingly, I will certify the agreement in the terms entered into between the parties. The agreement shall come into force from 26 October 2004 and will remain in force until nominal expiry date agreed between the parties, 30 September 2006. I thank the parties for their submissions. I will now adjourn.

ADJOURNED INDEFINITELY [1.52pm]