AG2005/203, Transcript of Proceedings [2005] AIRCTrans 1061 (2 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11366-1

SENIOR DEPUTY PRESIDENT DUNCAN

AG2005/203

APPLICATION BY NORTHERN TERRITORY TOURIST COMMISSION
s.170LK - Agreement with employees (Division 2)
(AG2005/203)

DARWIN

2.04PM, THURSDAY, 21 APRIL 2005

PN1

MR A SAUNDRY: I am an Industrial Relations consultant. I seek leave to appear on behalf of the Northern Territory Tourist Commission. With me are two of the elected employee representatives to the enterprise bargaining committee, MS J HINDLE and MR B CAMPBELL.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Saundry. As in so far as that is necessary, leave is granted.

PN3

MR SAUNDRY: Your Honour, yesterday I notified your associate that today's submission would actually go to seek approval to withdraw the application for certification of the agreement rather than to address a number of obstacles to the certification that were notified to me following the listing of the hearing for today. Your Honour, the decision to seek a withdrawal of the application is not one that has been taken lightly. By way of background, this is in fact the third section 170LK agreement that the Tourist Commission would have been entering into. It is my view that the process that we have refined and developed over those years is actually very effective.

PN4

Unfortunately, where we have fallen down is in the documentation of the agreement that we have actually reached. So it is more there than I would say in process. Your Honour, this was due to a number of circumstances, not the least of which was that at least three, and I think closer to four people, who had carriage of the process, and with the Northern Territory Tourist Commission, that was initially the human resources manager, who resigned to move on to greener pastures, then a lady who stepped into the breach, and I guess was a little bit anxious and quick, because she was very heavily pregnant with birth pending. Then, a third person, and then, finally, with the appointment very recently of a new human resources manager.

PN5

It seems that effectively I need to take a lot of the blame because I should have slowed the process down so that the editing was more thorough. However, we went ahead with the notification of intention to certify and a vote in accordance with the specifications of the Act. Some 149 employees were given the opportunity to vote. 81 of those voted, 63 voted for and 18 against which I would see as a majority of some 78 per cent. Having received the news that the proposal was well accepted, Amy apprised me of a situation where, during the 14 days, she had agreed to make a slight change which would clarify the accrual of certain employees who chose to take a different increase and a higher level of annual leave.

PN6

That decision was notified in the statutory declarations and it was my intention that we would seek to have that recognised as a clarification rather than variation because we did not take the step of restarting the voting process. Since the application was lodged there have been a number of other deficiencies that were found by the new human resources manager. One of those was a typing error where a classification of NTHC2 should have in fact been NTHC1. She raised the fact that many of the old classifications had not been replaced in the body of the agreement as opposed to the classification schedule by the correct classifications although you would link to them because they were replacements.

PN7

It transpires that we didn't alter the page number referencing and I would say the straw that broke the camel's back was the concept of what is termed TEC, total employment compensation, which is a basis upon which we had agreed we would calculate bonuses that employees can receive under clause 410 of the enterprise agreement. The issue was that there was some confusion as to what is total employment compensation and what is total employment cost. We had agreed that the previous basis which was worked on PAYG was perhaps not equitable for somebody who had salary sacrifice arrangements and their bonus calculation. Or, for that matter, who had commuted salary to additional annual leave would in fact, by percentage, be receiving an inequitable amount of bonus.

PN8

Having discovered this, we called a meeting of employee representatives to discuss those issues with them and to suggest that we in fact make a submission to withdraw the application to certify, to give us the opportunity to produce a document which would be more reliable rather than one which we knew had great propensity for misinterpretation and dispute. Now, that meeting was not attended by all employee representatives ..... both of these at the one time. But following that meeting, an email was issued. Now if I can hand up two exhibits, that would be a decision that I will refer to later on, and the other, a copy of the email.

PN9

THE SENIOR DEPUTY PRESIDENT: It is not really necessary to mark the decision, Mr Saundry.

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PN10

MR SAUNDRY: Your Honour, that meeting was not attended by all of the employee representatives. It was really representatives of those whose constituents work in Darwin. So, following the in principle decision, an email issued detailing many of the concerns to each of the elected employee representatives that are on the enterprise bargaining committee and I am advised that we have unanimous consent on the part of the elected employee representatives to seek a withdrawal of the application to certify today and to go through a process to reflect in our documentation exactly what the intent is without any ambiguity.

PN11

Your Honour, in relation to the law, I rely on the authority of a recent decision of a Deputy President McCarthy wherein at paragraphs 14 and 15 he considered what I think is a similar application and I would suggest perhaps not so compelling as the argument that we have put here today. But essentially exercised the power conferred under section 98 of the Act to accept the practicality of withdrawal of the application over the non-discretionary powers in section 170LT(1) which require a decision to either certify or not to certify upon application. Your Honour, we say that our own case is consistent with the decision or perhaps I should read or give you time to read?

PN12

THE SENIOR DEPUTY PRESIDENT: I have read it.

PN13

MR SAUNDRY: Thank you. Consistent with the decision of Senior Deputy President McCarthy, the submission is for withdrawal of the application. It is not for withdrawal of the agreement. The intent of the agreement that we have reached with the employees, still stands. And there is no argument there. Your Honour, I think we need to consider the situation of employees and the possibility of disadvantage to employees if we were not to, if we were to have the request to withdraw approved.

PN14

Your Honour, we would say that, at this present time, the rates of pay have already been implemented and that the Tourist Commission will make an undertaking here on the record that they would treat the intent of the agreement that was reached as though it were a common law contract and that in fact no employee would be disadvantaged by the withdrawal here today if it is approved. We would say that it is more practical in the circumstances and compelling that we get this document right, rather than leave the known propensity for subsequent misinterpretation and therefore disputation.

PN15

The only alternative, I would perhaps suggest that is also open - even though it was my original intent to suggest that the variation covered in the statutory declaration perhaps didn't conflict with section 170LK(8) - it would be open for a finding that the agreement couldn't be certified because we had not gone back through the voting process. And of course there is also the other question, the extension of time. It is amongst all of this we in fact didn't get the application in until a little late, and in fact we didn't then even have sufficient time to get all of the statutory declarations from all of the elected employee representatives.

PN16

We have done since and would normally have presented them here today. So, we say in all the circumstances, we respectfully submit that withdrawal of the application in order to get the documentation right is the most practical solution to the problems the parties are confronted with. Your Honour, that leaves me with one other issue and that is that we have also lodged the section 170XF application for determination of a designated safety net award. My understanding of law there is that that application wouldn't be heard unless there is an application for certification. So, it seems to me that in all the circumstances it would be perhaps best to, if you could approve the withdrawal of both applications and then we would make both again in the near future. But in closing, I apologise for taking up the time of the Commission with matters that were very avoidable and should have been avoided, but ask that you would consider the submission favourably. Thank you.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Saundry. Ms Hindle, do you want to add anything to what has been said?

PN18

MS HINDLE: No thanks, your Honour. I think he covered it.

PN19

THE SENIOR DEPUTY PRESIDENT: Covered it?

PN20

MS HINDLE: Yes.

PN21

THE SENIOR DEPUTY PRESIDENT: Mr Campbell?

PN22

MR CAMPBELL: I agree with that. He has covered everything.

PN23

THE SENIOR DEPUTY PRESIDENT: Very well. And one thing you can confirm. The other employee representatives are of the same mind as yourselves, that what Mr Saundry has outlined should occur?

PN24

MS HINDLE: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. I am of the view that to accept, and I use that word quite deliberately, withdrawal in this case is appropriate. I am satisfied from what Mr Saundry has said, that there is no prejudice to any of the employees affected by the agreement and I note also that the employee representatives have presumably played a part in the negotiation of the agreement originally consent to the withdrawal. The circumstances are different from those contemplated in the earlier Full Bench decisions of Australian Nursing Federation v Karinga Hostel incorporated and indeed others all of which are concerned, as far as I can establish, in section 170LJ applications which have two distinct parties.

PN26

The parties in this 170LK of course are the employees themselves and the employer and the agreement is actually made by the employer. I think the situation is straight forward. In that regard withdrawal is within the power of the groups who are represented here today. I accept the withdrawal. I agree with Mr Saundry that for convenience it would be suitable for the section 170XF application be re lodged when the time arrives for the agreement itself to be re lodged for certification. I don't think there is anything more that needs to be done, Mr Saundry.

PN27

MR SAUNDRY: Thank you.

PN28

THE SENIOR DEPUTY PRESIDENT: I adjourn this matter indefinitely. I adjourn the Commission until 2.30.

<ADJOURNED INDEFINITELY [2.19PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

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