AG2004/1014, Transcript of Proceedings [2004] AIRCTrans 616 (13 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1380

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/1014

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by City of West Torrens and Another for
certification of the City of West Torrens
Enterprise Agreement (Municipal Officers) 2003

ADELAIDE

10.05 AM, WEDNESDAY, 4 FEBRUARY 2004

PN1

MR W. ROSS: It is the first time for me, I apologise. Bill Ross, I am the group manager corporate of the City of West Torrens representing the interest of West Torrens Council.

PN2

MR D. PAYNE: I appear on behalf of the Australian Services Union if the Commission pleases.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I have read both the statutory declarations and the agreement itself. The initial question that arises, having considered the statutory declarations, is that it appears that the agreement was voted on or approved by a valid majority on 23 December 2003 but was not filed in the Commission until 15 January 2004, which would put it outside of the time limit set in section 170LM of the Act. The capacity, Mr Ross, exists for me to extend that timeframe but I will need to know why it is that the application was lodged late in the Commission and I will need some confirmation that there was no significant change in the work-force over that 2-day period. Can you assist me in both of those respects?

PN4

MR ROSS: I certainly can. Do I need to stand?

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, you probably should.

PN6

MR ROSS: I can certainly assure you that there were no significant changes to the work-force at the West Torrens Council over that period. The reason for the delay, it is notoriously - it is a holiday period and I think the people that were largely involved with the documentation were involved in taking leave, including myself, and that would explain why there was a delay in the document being lodged here. I would certainly seek leave for the extension that you referred to on that basis.

PN7

THE SENIOR DEPUTY PRESIDENT: When you say there was no significant change in the work-force, was there any change at all?

PN8

MR ROSS: I could not say for certain, there may have been - there may have been a resignation or two in that period but if there was a change it would certainly have been of a minor nature. There would not have been anything of any significance that had occurred.

PN9

THE SENIOR DEPUTY PRESIDENT: Can I presume then that the vote that occurred on 23 December resulted in endorsement of the agreement by such a majority that the resignation of a person over that period in question would not impact on the outcome?

PN10

MR ROSS: That is certainly the case. It was an overwhelming majority in support of this necessary documentation.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Payne, are you in agreement with the information provided to me by Mr Ross, or do you have any different view?

PN12

MR PAYNE: No, sir. I am in agreement with Mr Ross and I am quite prepared to place on transcript that there was - the delay was not deliberate and there was definitely no mischief intended. So with that, sir, it was the Christmas period and backwards and forwards and people were missing, that is the reason why the time did go beyond that area. We would also be seeking the Commission exercise its rights under 111(1)(r)(ii) extend the lodgement time.

PN13

THE SENIOR DEPUTY PRESIDENT: Very well. I shall do that pursuant to section 111(1)(r) of the Act I will extend the time frame for lodgement of the application. Now the second question relates the date upon which employees were provided with a copy of the agreement. Paragraph 5.7 in the statutory declaration indicates that employees received either an electronic or a hard copy of the proposed agreement 2 weeks' prior to voting. Mr Ross, are you able to tell me the date upon which employees would have received that copy of the agreement?

PN14

MR ROSS: The agreement, as it was being developed, was available in a common directory on our computer network for all staff to view progressively and for the entire period that preceded the vote, that documentation was there. All staff had access to it and it was drawn to their attention throughout the course of the process. So - - -

PN15

THE SENIOR DEPUTY PRESIDENT: So hard copies were not sent out to all employees but all staff were advised and had access to the electronic version. Is that a fair summary?

PN16

MR ROSS: That is correct.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Payne, do you agree with that response?

PN18

THE SENIOR DEPUTY PRESIDENT: Very well. I will advise the parties on that basis that I am satisfied with the process that was followed in reaching this agreement was consistent with that specified in section 170LJ and to some extent LT of the Act. Now, Mr Ross, I am going to ask you a few questions about the agreement itself. My questions do not invite you to redraft the document in any way. They go toward establishing the intention of the parties about a number of provisions to which I shall have regard. Mr Payne would be aware that he has the opportunity to jump up and tell me whether he wants to add or detract from anything you say. Can I take you first of all to clause 6.4, this refers to local area workplace agreements? Am I to understand that the intention of the parties is that any local area workplace agreement would be lodged in the Commission as a proposed variation to this agreement?

PN19

MR ROSS: That is absolutely correct.

PN20

THE SENIOR DEPUTY PRESIDENT: The agreement contains in a number of clauses, perhaps commencing in clause 12 references to various programs or policies adopted by the Council. In clause 12.1 the reference is to a continuous improvement program. Am I to understand that wherever a program or a policy is referenced in the document then those programs or policies are documented, that they are readily available to all employees and that they may be changed during the life of the agreement?

PN21

MR ROSS: I say, yes, to all of those questions. We had this information readily available as the agreement was on our computer network and staff have very easy access to the information. The documents do change during - will be changing during the course of this agreement.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, just for the sake of clarity. In clause 13 references are made to the performance agreement review program, the Council study assistance program, once again they are examples of where programs are referenced. I am assuming that as such the same answer applies?

PN23

MR ROSS: That is correct.

PN24

THE SENIOR DEPUTY PRESIDENT: Clause 19 details hours of work. 19.1(c) excludes from that particular clause departments such as library services who are regularly working outside of the ordinary hours of work. The Act requires that I consider the agreement in the context of what is called the no disadvantage test. If clause 19 does not apply to departments such as library services, then what prescription does apply to regulate hours of work for those employees?

PN25

MR ROSS: In the absence of a LAWA they fall back to the award conditions.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 19.4(a) refers to the appropriate penalty rate as described in the award. I would understand that reference to mean that the penalty multiplier would be adopted and applied to the wage rate specified in this agreement?

PN27

MR ROSS: Yes. That is correct. We would expect all overtime conditions in the award to apply.

PN28

THE SENIOR DEPUTY PRESIDENT: Clause 20, and in particular 20.1 and 20.2, gives rise to a question as to how I should understand those provisions in the context of the prescriptions set out in clause 19.3. Can you help me in that regard?

PN29

MR ROSS: These provisions were introduced as a part of a - as a component of family friendly courses that were introduced by the staff reps and that were participating in the negotiation process.

PN30

THE SENIOR DEPUTY PRESIDENT: So am I to understand that the employees as part of those flexible working arrangements might agree, provided it is by mutual agreement and confirmed in writing on starting for example, times that are outside of the span of hours?

PN31

MR ROSS: These provisions were designed to give greater flexibility where it was mutually acceptable to both sides, to both the employer and the employee and there was a mutually agreed process for that to occur.

PN32

THE SENIOR DEPUTY PRESIDENT: You see, I am just trying to clarify the intention of the parties. What I do not want you folks to do is to come back to me at any point during the life of this agreement and hence, I am wanting some clarification on whether or not an employee - for argument's sake might agree on a starting time that suits the employee and the employer, but is commencing outside of the span of ordinary hours which is referenced in clause 19.

PN33

MR ROSS: I think the intention of the parties was to stay within the normal span of hours; after 7.30, until 6.30 pm.

PN34

THE SENIOR DEPUTY PRESIDENT: But to provide flexibility within that span?

PN35

MR ROSS: Within that span of hours, yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 32.8 references the Council's employee code of conduct and again I am working on the premise that that is documented, readily available to all employees and may be changed?

PN37

MR ROSS: Yes, it is.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you. In the same way, the reference to the policy and guidelines in the dispute resolution procedures in clause 34?

PN39

MR ROSS: Clause 34?

PN40

THE SENIOR DEPUTY PRESIDENT: 34.1 refers to the Council's policy and guidelines relative to individual grievances.

PN41

MR ROSS: Yes. We do have policies and guidelines and they are readily available to all the staff.

PN42

THE SENIOR DEPUTY PRESIDENT: Right. Clause 34.8 sets out the various stages, or is one of the various stages referenced in the dispute resolution process. Am I to understand that an employee who may not be a member of the ASU or indeed any other union has the capacity to be represented by a person or organisation of their choice?

PN43

MR ROSS: After 34.8?

PN44

THE SENIOR DEPUTY PRESIDENT: 34.8 says:

PN45

That if the concern is not resolved at stage one an employee and/or union representative will meet with the relevant manager or group manager.

PN46

The question I am asking goes to a possible situation in that if an employee is not a member of the ASU or indeed any union, can they be represented by an organisation or a person of their choice?

PN47

MR ROSS: It does not really say, but certainly from our perspective we would have no objection to that being the case.

PN48

THE SENIOR DEPUTY PRESIDENT: 34.10 provides that an unresolved matter might be referred to the Australian Industrial Relations Commission or an external mediator for conciliation and/or arbitration. Does there exist the possibility that the parties would not be able to agree on who should be asked to assist in the resolution of a dispute by way of conciliation and/or arbitration, that is the parties cannot agree on whether an independent person ought to be asked to undertake that function or whether it should be referred to the Commission?

PN49

MR ROSS: I think if it got to this stage we would be more than prepared to accommodate either option at the preference of the individual that was in dispute with us.

PN50

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. 35.5 refers to the use of stipulated safety equipment. I take it that management have the right to stipulate the requisite safety equipment?

PN51

MR ROSS: Yes. Yes, they do. We take that responsibility very seriously.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 37 refers to journey accident insurance. Are you able to advise me of the amount of that insurance cover and the duration of the cover? You see the clause presently says, as it presently stands, simply the Council will provide insurance coverage. It does not appear to specify the amount and the duration of the cover.

PN53

MR ROSS: I don't - I think we had a standard arrangement that is common across many local councils but I don't have specific knowledge of the nature of the insurance cover.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes. By all means, have a brief discussion.

PN55

MR ROSS: I can provide specific information to the Commission on the amount involved in this case. Certainly the intention is that this insurance will apply for the life of this agreement.

PN56

THE SENIOR DEPUTY PRESIDENT: I see. But you could provide me with some information that goes to the duration of the cover and the amount of that cover?

PN57

MR ROSS: I am fairly sure that we renew it on an annual basis and have been carrying this insurance - - -

PN58

THE SENIOR DEPUTY PRESIDENT: It is not so much the renewal, it is a question of if an employee is injured in a circumstance which is covered by this particular insurance cover, then the question that I am asking goes to the amount of money that they would then receive and the duration for which they would receive that money?

PN59

MR ROSS: I see what you saying. I would need to get that information to you and I can certainly do that some time today.

PN60

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Mr Payne, can I take it that you are in agreement with all of Mr Ross's responses to my questions?

PN61

MR PAYNE: You can, Senior Deputy President.

PN62

THE SENIOR DEPUTY PRESIDENT: If Mr Ross was to send to you his proposed response to my last question about journey accident insurance cover, would you be able to endorse that response fairly quickly.

PN63

MR PAYNE: Yes. We would do it immediately.

PN64

THE SENIOR DEPUTY PRESIDENT: All right. I will indicate to the parties on the basis that I am satisfied about the approach followed in reaching the agreement, I am also satisfied that the agreement meets the requirements of the Act necessary for certification, is of a duration envisaged by the Act, contains the necessary dispute resolution provisions, does not contain provisions which are contrary to the Act, and on the basis of the information provided to me meets the requirements of the no disadvantage test.

PN65

I will certify the agreement with effect from the date upon which I receive confirmation from the parties about their shared position on the effect and operation of clause 37 of the agreement. That certificate would be forwarded out to the parties shortly after I receive that information. It will detail the various clauses about which I sought clarification but it will not specify the responses that I have received because those are recorded on the transcript of the proceedings for today. The information to be sent to me relative to clause 37 will be retained on the Commission's file.

PN66

I congratulate the parties on reaching this agreement and look forward to not seeing you between now and when the agreement is replaced by its next version. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [10.25am]