AG2004/1735, Transcript of Proceedings [2004] AIRCTrans 906 (16 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2260

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

AG2004/1735
CA44 of 2004

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LS of the Act
by South East Queensland Water Corporation
Limited and Australian Municipal Administrative
Clerical and Services Union re SEQWATER - Salaried Employees Enterprise Certified Agreement 2004 to 2006

BRISBANE

9.24 AM, MONDAY, 23 FEBRUARY 2004

PN1

THE COMMISSIONER: Well, as we all know, this is a joint sitting of both the Australian Industrial Relations Commission and the Queensland Industrial Relations Commission. Could I take the appearances, please?

PN2

MR G. MUIR: Gill Muir, and with me, MR WAYNE HARDY, and we're appearing this morning for the South East Queensland Water Corporation in both matters.

PN3

MS M. ROBERTSON: I appear on behalf of the Australian Services Union in relation the Federal matter.

PN4

THE COMMISSIONER: Very well. Thank you, Ms Robertson.

PN5

MR D. BROANDA: On behalf of the Australian Workers Union of Employees Queensland on the Queensland matter.

PN6

THE COMMISSIONER: Very well. Thank you, Mr Broanda. Mr Muir?

PN7

MR MUIR: Yes, thank you, Commissioner, and I would say on behalf of the parties to both agreements we appreciate you attending to this matter as a joint sitting. It has been a tradition. Commissioner, there is just one amendment I could make to the salaried staff. That was my error. We ended up with two clause 5.6s. I have spoken to your associate and I do have some amended pages here. It doesn't alter the number of pages, in fact, and it doesn't alter the numbering of the clauses in terms of the principal numbering, and if I could just tender that to you, on the basis that if we could just simply amend. The current 5.6 which deals with annual leave loading becomes 5.7, and then the superannuation clause becomes 5.8.

PN8

I think one of the problems, Commissioner, there were so many various drafts that somewhere along the line we just - I just overlooked that. Commissioner, also in regard to the Salaried Employees Enterprise Certified Agreement 2004 to 2006, it was filed slightly out of time beyond the 21 days. The reason for that is that I was waiting to receive the AWU agreement too so we could file them both at the same time, and I understand the AWU official who was acting, called Mr Ludwig, at the time became ill and there is - in effect, there was no one to sign the document till Mr Ludwig came back. That's the AWU one. So I would ask, in accordance with the Act, that's 170LS(2), that you do exercise your discretion.

PN9

I am aware of a decision by McCarthy, Deputy President, where in dealings with an out of time matter, Print PR442, he said that some of the criteria to consider were the reasons for the delay, whether the delay was deliberate, if the deliberate the motivation for the delay and the mischief intended, and the possible repercussions as a result of the delay. We would say that there was no intention to delay the matter and the reason for the delay was simply that the AWU official who was due to sign it became, I understand, seriously ill and there was nobody authorised by the AWU to do so until Mr Ludwig returned about a week after. So, Commissioner, I would ask that you exercise your discretion favourably with respect - in regard to the Salaried Employees Agreement.

PN10

Commissioner, there are statutory declarations filed in regard to the Federal matter, one by Mr Peter Burrows who is the Chief Executive Office of the South East Queensland Water Corporation Limited, and also we are in receipt of a statutory declaration filed by Mr Ian Buckley on behalf of the ASU. I'll let Ms Robertson talk to that. So, therefore, in regard to the Federal matter, we believe that, subject to your determination on the outside the 21 days limit, that that agreement satisfies the Act. It does provide an - official terms for the employees. It is part of a continuum of enterprise bargaining that the South East Queensland Water Corporation engages in every two to three years, and it was the practice or the request of the parties that the matter be heard - or both matters be heard together. Subject to any questions or comments you would make on the Federal matter, Commissioner, I would ask that you would certify it.

PN11

In relation to the AWU matter, that's the State agreement, there is a - in accordance with the State practice, there is a statutory declaration in accordance with the State Act and regulations as attachment B to the State agreement, and that is also made out by Mr Peter Burrows, again as the Chief Executive Officer, and I would point out in both matters reference is made to SEQWATER, which is the trading name of the Corporation. We believe that, again, everything that the Act requires has been done. Both agreements, I would add, were passed by a majority of the employees. In terms of the State Act, in paragraph 18 of Mr Burrow's statutory declaration, he attests to the fact that equal remuneration has been met and that the no disadvantage test has been satisfied in accordance with the State law.

PN12

Again, without going into the terms of the agreement and unnecessarily delaying the Commission, we say that both of them - the AWU agreement provides very favourable terms which has been accepted by the AWU and the employees concerned, and I would ask also that you certify that. Thank you.

PN13

THE COMMISSIONER: Very well, thank you. Ms Robertson?

PN14

MS ROBERTSON: Thank you, Commissioner. In the circumstances, I've little to add to the comments made by Mr Muir, except to say that the ASU supports the certification of this agreement. Thank you.

PN15

THE COMMISSIONER: Very well, thank you. Mr Broanda?

PN16

MR BROANDA: If the Commission pleases, firstly, the AWU supports the submissions of Mr Muir and we can confirm, Commissioner, on the matter of the delay that the circumstances outlined by Mr Muir are the reason, I guess, for the delay in our signing of the document. The AWU submits the agreement meets all the provisions of the Industrial Relations Act 1999. In particular, it contains a dispute resolution procedure at clause 8.8. It was voted on and supported by a valid majority of employees and we rely on the affidavits supplied at attachment B in support of those submissions and, on that basis, commend the agreement to you for certification. May it please the Commission.

PN17

THE COMMISSIONER: Very well, thank you. Mr Muir, I have two questions for you.

PN18

MR MUIR: Yes, thank you, Commissioner.

PN19

THE COMMISSIONER: Can I take you to clause 3(a)(i)? If we look at that paragraph, the last sentence says:

PN20

Once made, the terms of the written contract of employment shall prevail over the terms of the award and this agreement.

PN21

My understanding of the construction of this document is that, in the event that the person signed such a contract, this document ceases to apply to that person.

PN22

MR MUIR: I'm sorry, Commissioner. What clause number was that again?

PN23

THE COMMISSIONER: It's clause 3(a)(i). It's headed "Written Contract of Employment".

PN24

MR MUIR: Yes. I'm instructed by Mr Hardy that is - your interpretation is the correct interpretation.

PN25

THE COMMISSIONER: So are we stating that that sentence has no work to do because a person who signs one of these contracts isn't covered by this agreement, in any event?

PN26

MR HARDY: To the extent that if the person wishes to withdraw from the contract at any time, there's a provision that they may withdraw from the contract and revert to the conditions of - - -

PN27

THE COMMISSIONER: Yes, I understand that, in which case the agreement would then commence to apply. But this is dealing with while there's a live contract, it says once the terms of the written contract of employment

PN28

Once made, the terms of the written contract of employment shall prevail over the terms of the award and this agreement.

PN29

Well, the fact is that the employee, by signing the contract, is no longer covered by this agreement.

PN30

MR HARDY: That's correct. Yes.

PN31

THE COMMISSIONER: Okay. And the other question I have is at the same clause but (iv) is that:

PN32

An employee who accepts a promotion to level 5 has no discretion about remaining within the terms of this agreement.

PN33

Is that right, that a person must accept the terms of this contractual arrangement?

PN34

MR MUIR: Yes. In terms of (iv) that is correct. Yes.

PN35

THE COMMISSIONER: Is the contract that's envisaged a collective contract? I just don't know how you force someone to have a contract unless it's some sort of collective instrument. How do you say they will accept this contract?

PN36

MR MUIR: Well, I guess on the basis that the contract contains beneficial terms and the offer, as it does say there in (iv):

PN37

A current employee on classification 5 or above who accepts an offer of such written contract or employment - - -

PN38

THE COMMISSIONER: But (iv) doesn't give them the discretion. They don't - they can't accept such an offer. If they're promoted to level 5 they - it comes with a contract.

PN39

MR MUIR: Yes. That is correct.

PN40

THE COMMISSIONER: I mean, I can give you an example. What say someone just philosophically is opposed to individual contracts and wants to stay under the award and the Agreement?

PN41

MR MUIR: Well, I guess if we take it to that extent, then they would not pursue - if they were fully aware of the terms of this agreement, they would not pursue classification 5 and above, or not accept an offer to that.

PN42

THE COMMISSIONER: I wouldn't like to be arguing that in the Federal Court. I wouldn't like to be arguing that the reason they didn't receive a promotion and have been discriminated against because they sought to retain the benefits of an award or an agreement.

PN43

MR MUIR: Yes, I understand the point you make, Commissioner. This was very accurately debated with the actual employees concerned and I'm not aware - Mr Hardy can correct me - that anybody actually raised an issue about it. There was discussion about these contracts, but I'm not - the point you take on board - you've made will be taken on board. I don't think we're in any position this morning to change the document that's drafted. That's all.

PN44

THE COMMISSIONER: And I'm not going to ask you to.

PN45

MR MUIR: No.

PN46

THE COMMISSIONER: Because, to me, the words pass the no disadvantage test.

PN47

MR MUIR: Yes.

PN48

THE COMMISSIONER: It's how they're administered might be interesting and of interest to the Federal Court should a matter ever proceed to that jurisdiction.

PN49

MR MUIR: Yes. I'll bring it to the attention of the Chief Executive Officer, Commissioner, and I'm sure that Ms Robertson will raise the matter with Mr Buckley.

PN50

THE COMMISSIONER: In any event, I'm satisfied that it's open to people to reach this agreement. As I say, I'm more concerned about what should happen if a person wanted to remain covered by a certified agreement rather than this written contract. But that's a matter of administering the words, as opposed to what is actually in the words.

PN51

MR MUIR: The point you make is quite valid, Commissioner. I would hope the matter never reaches the Federal Court.

PN52

THE COMMISSIONER: Very well. Thank you, Mr Muir. Well, in relation to these two agreements I'm satisfied that they do meet the requirements of the respective legislation under which they're made. I'm also satisfied that the relevant administrative functions and steps that are necessary of parties making such applications have been met. I therefore intend to certify both of these agreements. They each will operate - commence to operate from today and each of them will carry a nominal expiry date of 31 December 2006. I adjourn the Commission.

ADJOURNED INDEFINITELY [9.38am]