AG2005/3492, Transcript of Proceedings [2005] AIRCTrans 1245 (6 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11653-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/3492

APPLICATION BY DISTRICT COUNCIL OF MALLALA & LAGUE, MARK
s.170LK - Agreement with employees (Division 2)
(AG2005/3492)

ADELAIDE

10.00AM, MONDAY, 23 MAY 2005

PN1

MR G J HILL: I appear on behalf of the District Council of Mallala.

PN2

MR M A LAGUE: I appear on behalf of the employees of the District Council of Mallala.

PN3

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

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Payne, I have received advice from the ASU to the effect that it seeks to be bound to the agreement in accordance with section 170M(3) of the Act. Now, Mr Hill, is there any dispute over that?

PN5

MR HILL: Your Honour, the section 170M(3)(c) and (d) seem to provide little discretion on the part of the Commission, providing that the organisation can satisfy the Commission of certain matters as shown under subsection (d)(i), (ii), (iii). It would seem to me that if the Commission is satisfied of those particular points, in terms of the order which might arise from these proceedings, they can be determined that the agreement binds the organisation.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, but from the employer's point of view is the employer in a position to agree that the ASU has at least one member whose employment would be subject to the agreement and whom the ASU is entitled to represent?

PN7

MR HILL: Yes.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And Mr Payne, I am working from the basis that Ms McEwen's letter is correct in that at least one member, subject to the agreement, has requested the ASU to give notification that it should be bound by the agreement?

PN9

MR PAYNE: That is correct.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I have read the agreement and I have read the statutory declarations. Mr Hill, can I take you first of all to the notice of election. Do you have that there?

PN11

MR HILL: Yes, it was attached as an annexure to the statutory declaration.

PN12

THE SENIOR DEPUTY PRESIDENT: It is an attachment to the statutory declaration, yes. And in particular can I take you to the third paragraph.

PN13

MR HILL: Yes?

PN14

THE SENIOR DEPUTY PRESIDENT: With particular reference to the last sentence in that paragraph, what can you say to me then about the distinction between the indication that if an employee who is the member of a union requests that union to represent them then the employer is required to meet and confer, but the paragraph continues to say that the negotiations however, will be conducted between staff representatives and management representatives.; do the two manage to sit comfortably together in your opinion?

PN15

MR HILL: I think there probably is a distinction there, your Honour. I think the, without referring to the particular part of the Act, I think the requirement there is that if an employee requests the union to act on their behalf and represent their interest, there is an obligation for the employer to confer with the union in relation to those matters. Now, the actual negotiations in terms of the matters to be included in the agreement, however, were to be conducted and were conducted between the staff and their nominated or appointed representative, employee representatives, and the CEO. Now, had the union or had an employee or had the union sort to confer on any of the matters that would have been facilitated and accommodated. But it was not requested.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you. The response to question 5.10 of the employer statutory declaration.

PN17

MR HILL: Your Honour, I was going to take the opportunity to clarify and address your Honour on that particular matter in the statutory declaration.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, I am happy to hear from you.

PN19

MR HILL: Now, I must admit when I saw the 17 weeks and worked that back, it did not take it back to the end of December. But I have since had discussions with the employee representative and apparently the document which was accessed at that time - - -

PN20

THE SENIOR DEPUTY PRESIDENT: This is as at end of December?

PN21

MR HILL: Yes, was essentially the document you have in front of you now, but there were three items as I am instructed, which were subsequently changed and were presented in the final document to the employees for their vote on 3 May this year. Now, those particular matters, your Honour, were the clauses dealing with the parties bound and the signatories to the clauses of the agreement.

PN22

Essentially they believed that they had a final document but it did not reflect the 170LK arrangements which they had contemplated. What it had, was a roll over from the provisions of the previous agreement and the signatories which required the signature of Anne McEwen from the ASU and the parties bound where it stated that the parties were the council and the union, whereas in fact everybody was aware and had negotiated on the basis that it was an agreement between the staff and the council.

PN23

So they were considered the two administrative type requirements. There was a third one which I am advised. The agreement, which was available to staff at the end of Decision, included a provision required by management or by the CEO that the annual leave loading would be paid in December, I believe. Now, that was not something that the employees themselves wanted and as part of the document which went to the meeting on 3 May that was excluded from the agreement. The CEO gave way, if you like, to the wishes of the staff and excluded that particular point and essentially, the status quo on that remains.

PN24

THE SENIOR DEPUTY PRESIDENT: Well, there are two issues that arise then, Mr Hill. The first is that if I look at the notice of intention to which I have already referred you, that notice is dated 10 September 2004.

PN25

MR HILL: Correct.

PN26

THE SENIOR DEPUTY PRESIDENT: It would appear, if I am understanding what you are telling me correctly, that the agreement changed at least twice after that date. That there were changes made subsequent to that date, and then that there were changes made subsequent to the end of December.

PN27

MR HILL: Yes, I think what has happened, your Honour, is that from 10 September when that notice was issued, 2004 when that notice was issued, there were ongoing negotiations regarding the enterprise agreement between the CEO and the staff. As at the end of December, what was essentially the final document was presented to staff but no vote taken until 3 May. Now, in between that time there were the two - between the end of December and May, there were the two changes made which gave effect to the character of the 170LK agreement. And there had been the request by staff that the provision relating to annual leave loading be withdrawn from the agreement, which was agreed to be the management.

PN28

THE SENIOR DEPUTY PRESIDENT: Well, if I can take you then to section 170LK(8) which requires or states that:

PN29

If a proposed agreement is varied for any reason after the notice is given, the steps in subsections (2), (3), (5) and (7) must again be taken in relation to the proposed agreement as varied.

PN30

Now, it appears from what you are outlining to me that I should understand that there was an ongoing iterative process, healthy discussions between the employer and employees which resulted in employees understanding that they could vary the agreement by negotiation and ultimately coming up with a document that people were happy with. But whilst that process is admirable and desirable, the issue that is bugging me is that section 170LK(8) appears to be set out in somewhat mandatory terms. So I am not sure that that process is consistent with those terms.

PN31

MR HILL: I mean, I can understand the position your Honour's in and I do understand that.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. Well, one way round this sort of problem that I have applied in the past, Mr Hill, is that I can take you through the agreement or the issues that I have with the agreement now, and there are not very many of them, but indicate to the parties that I would not be a in a position to certify the agreement until such time as the requirements of section 170LK were met. If the parties then went back and repeated that process in accordance with the requirements of that section and provided me with revised statutory declarations and a new agreement if they make any changes to it, together with advice that they sought to rely upon the information provided to me today, and all of that information was enough to allow me to conclude that the Act or the requirements of the Act had been met, then I would certify the agreement from the date upon which I receive that material, without the need for a further hearing.

PN33

MR HILL: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: I am putting that to you as one way around the problem, you might come up with other solutions and I do not want to discourage you from doing so but I cannot think of any others.

PN35

MR HILL: No, I think we are on all fours there, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Now, Mr Lague, can I just clarify first of all, you were elected as an employee representative, is that the case?

PN37

MR LAGUE: That is correct, your Honour, yes.

PN38

THE SENIOR DEPUTY PRESIDENT: How did that occur?

PN39

MR LAGUE: That occurred back in September last year when I asked all the employees when we had our first meeting, back in August I should say, and there was discussion about putting a letter to the employer to let them know that we were starting the process for this new bid. Then the following meeting after that we talked about who was going to represent the employee group and it was decided that I would represent them, but just to confirm that I said that I would send an email out to all the employees of the council to ask them if they would vote and whether or not I would be the representative for them, because that was the general discussion from the meeting. The responses I got back from them was 13 - there were 16 at that time voted in favour of me being the employee representative.

PN40

THE SENIOR DEPUTY PRESIDENT: Very good, thank you. Now, do you agree with what I understand to be Mr Hill's position in that there were in effect, two sets of changes made to the agreement subsequent to the notice of intention being issued on 10 September? There were a set of changes that were made prior to December, or prior to the end of December, which reflected a negotiation process, and then there were another set of changes which resulted in changes to the persons bound and the signatory clauses and the annual leave loading clauses.

PN41

MR LAGUE: Yes, your Honour. In fact, the agreement that was provided to the employees back in December was basically the agreement that we have got here today apart from a few minor changes. And the other one, of course, is the final quantum that was decided on as a result of all that. That is the other one that was confirmed at the end.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN43

MR LAGUE: But we did actually have a meeting, as Mr Hill pointed out, back in April in regards to the agreement that we had received at that particular point in time. It was noticed that following day that there was two issues with it, one being the parties to it and one being the leave loading. We followed that up with a meeting on 3 May, just before the statutory declarations were signed, which I have got agreement as per the minutes of the meeting that particular day on 3 May, that all 12 employees vote in favour that they accept the EB document as it was received and the minor changes to the clauses in the EBA received on 14 April was accepted. The 12 employees voted in favour of that, and that all 12 employees accepted the document that we received that morning, just which had those two changes in there and that all employees finally accept again that Mark Anthony Lague represent and sign on behalf of all the employees.

PN44

THE SENIOR DEPUTY PRESIDENT: As an employee, is it the case that you received though, only one notice of intention to make the agreement? That was the 10 September 2004 document.

PN45

MR LAGUE: Yes, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: I see. Now, what I have pointed out to Mr Hill is that it is in that regard that the process has been deficient in terms of the Act. Section 170LK provides the only avenue under the Act for an employer to reach a collective agreement with employees without the need for union involvement. As such, the Commission has looked at the provisions of that section in a reasonably strict manner. The section does not allow the discretion to overlook a particular component of the process. So what I am recommending to Mr Hill is that in effect, the process is repeated; a new notice of intention is issued, you could rely upon the same terms of the agreement, if the parties wish, or you could change those terms depending on the questions I am about to ask. And I would need to be provided with a revised statutory declaration from both yourself and from the employer, together with a copy of the agreement in its final form, and advice to the effect that you will be relying upon the answers provided to me today. Are you happy with that approach?

PN47

MR LAGUE: Yes, thank you, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Can I suggest that either you or Mr Hill might recommend that third paragraph in the notice of intention be modified slightly just to avoid any confusion in the process?

PN49

MR HILL: Yes, thank you your Honour. We will do that.

PN50

THE SENIOR DEPUTY PRESIDENT: The potential for confusion arises in terms of the extent to which the last sentence might be construed as contradicting the earlier part.

PN51

MR HILL: Yes, excluding the - yes.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Now, Mr Payne, as a union seeking to be a party bound to this agreement, do you want to add anything more to this issue of section 170LK? Or are you happy with the approach that is being proposed?

PN53

MR PAYNE: Nothing further to add in that, sir. I think the appropriate process will be undertaken now. Being a regular visitor to this Commission and knowing the thoroughness the Commission goes through this area, there was some correspondence in our file at work that indicated that maybe section 170LK(8), there were some issues with it, sir, but you have certainly fleshed all those out and I think it is appropriate that we do need to comply with the provisions of the Act.

PN54

I only had a couple of things that I, whilst on my feet, I thought I may mention to the Commission. I was not quite sure, not having a copy of the statutory declaration, when Mr Lague was indicating that there was a final meeting on 3 May with regard to acceptance of the agreement and that the whole 12 employees agreed to accept the agreement, I am not quite sure, I thought there was more than 12 employees covered by this agreement. So I was just wondering where the other people were that were proposed to be bound by the agreement, if they were consulted with, or if there was any issues in that area, sir. Thank you. If the Commission pleases.

PN55

THE SENIOR DEPUTY PRESIDENT: Mr Hill, my understanding is that there are 19 employees to be covered by the agreement, is that the case?

PN56

MR HILL: That is correct, your Honour. I understood from what the employee representative was saying was that the number 12 was related to the initial vote in respect of the appointment of the employee representative. Did I misunderstand that?

PN57

THE SENIOR DEPUTY PRESIDENT: That was my understanding too. Mr Lague, can you clarify that position at all?

PN58

MR LAGUE: In relation to that 12, that number 12 is the 12 people that were present at that particular meeting.

PN59

THE SENIOR DEPUTY PRESIDENT: I see.

PN60

MR LAGUE: It was called for that meeting. There is 19 employees - - -

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, the issue becomes a little academic in that the parties will need to vote again, the employees will need to vote again. All right, thank you. Now, do all the parties have a copy of the actual agreement document?

PN62

MR HILL: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: My questions in these instances normally do not invite the parties to rewrite the document at all. However, in this case, the parties have that option should they choose to do so, because the agreement will need to be taken back to employees with the requisite notice of intention and 14 day requirements being met.

PN64

Mr Hill, I was going to ask for some clarification on the title of the agreement. Given that it is a section 170LK agreement, the title identifies the ASU.

PN65

MR HILL: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: Given that I do not understand there to be any dispute over the ASU being made a party bound, that may well answer my question, but I thought I would give you the opportunity to comment in any event.

PN67

MR HILL: Yes, your Honour, I do not think from the council's point of view that that is going to create any real difficulty, and particularly seeing that the union representative sought to be joined as a party to the agreement.

PN68

THE SENIOR DEPUTY PRESIDENT: Clause 3.10 defines member as:

PN69

an employee who is a member of a union party to this agreement.

PN70

This issue arises a little later in the agreement but can you confirm to me that the employer treats employees who are members of a union in exactly the same way as it treats employees who are not members of the union?

PN71

MR HILL: I can give that assurance, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 9 deals with consultation and employee relations. I am just going to seek some clarification about clauses 9.5 and 9.6 in the context of this being a section 170LK agreement. But as I am understanding the position of the parties, it is to the effect that notwithstanding the basis upon which certification is sought, the employer recognises the role of the ASU as the representative of at least one employee. Is that the case?

PN73

MR HILL: That is correct, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Clause 14 deals with performance reviews and employee development; 14.59 refers to the council's annual business plan. Should I understand that to be a document which is readily available to the employees?

PN75

MR HILL: That is something I would have to - I am not aware of, your Honour. And whether or not Mr Lague might be able - - -

PN76

THE SENIOR DEPUTY PRESIDENT: Mr Lague might be able to help us out.

PN77

MR HILL: - - - to help me out there.

PN78

MR LAGUE: Yes, that is correct. It is freely available.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 15 deals with dispute resolution. Mr Hill, should I understand that if an employee is not a member of the ASU or indeed not a member of any union, the capacity exists for them to be represented by a representative of their choice?

PN80

MR HILL: That is correct, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: If I can then take you to the second last paragraph in that particular clause; how should I understand that paragraph in the context of this agreement?

PN82

MR HILL: That is the second last paragraph?

PN83

THE SENIOR DEPUTY PRESIDENT: In clause 15.

PN84

MR HILL: Yes. Again, your Honour, I would say that the negotiations would occur between the employee and their nominated employee representative or other representative.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 16 deals with employment. I take you to 16.2 which deals with reclassification and to the last paragraph. Again, should I understand that the words "any member" in effect are applied so that they refer to any employee?

PN86

MR HILL: Correct, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: Clause 18 refers to a code of conduct. Is that available in documented form to all employees? And may it be changed over the life of the agreement?

PN88

MR HILL: Perhaps I will defer to Mr Lague.

PN89

THE SENIOR DEPUTY PRESIDENT: Mr Lague again.

PN90

MR LAGUE: Yes, your Honour, it is available to all employees and a copy has been given to all employees.

PN91

THE SENIOR DEPUTY PRESIDENT: Thank you. Now clause 20 deals with sick leave and family leave. It is identified in the statutory declarations as a reduction in terms applicable under the award; how is that the case?

PN92

MR HILL: I think, your Honour, that the award - I have got a copy of the award, I think. Yes, it refers to five days, maximum aggregate of five days per annum without a certificate instead of three.

PN93

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN94

MR HILL: I am sure that is the case, your Honour.

PN95

THE SENIOR DEPUTY PRESIDENT: Clause 26 it would normally have given rise to a question about the role of that particular type of clause in a section 170LK agreement, but I do not need to go back over that ground.

PN96

MR HILL: No.

PN97

THE SENIOR DEPUTY PRESIDENT: Given the position adopted by the parties. Clause 28 deals with flexible hours of work and again, that is identified as a reduction in terms applicable under the award. Does that apply simply in terms of the flexibility arrangements, that reduction in terms?

PN98

MR HILL: Yes, although the span of hours is - just bear with me a moment, your Honour. Yes, it would apply only to the flexible hours arrangements from 28/3 onwards, by the looks of it. Where the span has been increased and the number of ordinary hours per day can be up to ten hours.

PN99

THE SENIOR DEPUTY PRESIDENT: Clause 30 deals with meal allowance. That too is identified as a reduction in terms. Should I understand that simply because of the annualisation of the allowance?

PN100

MR HILL: As I understand it, your Honour, and I may need this to be confirmed by Mr Lague, that the meal allowance is actually being absorbed into the rates of pay. So in terms of it being annualised I am not sure whether that is strictly correct in that sense, but it is being determined on an annual basis and accounted for. As I understand it, the parties have absorbed that into the agreed rates of pay.

PN101

THE SENIOR DEPUTY PRESIDENT: How does that work then, Mr Hill, in that there would surely then need to be some estimate made of the number of occasions each year when employees would be entitled to a meal allowance.

PN102

MR HILL: Perhaps Mr Lague might be in a better position on that one, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: Mr Lague?

PN104

MR LAGUE: Certainly. This, your Honour, was actually one of the items that were given up, as it were, as part of the agreement, in that where employees work overtime and they are entitled under the award to receive a meal allowance as part of their remuneration we - and then of course there is the administration costs of it to the council in regards to having to put that through with the pay as applicable for that particular fortnight or whatever, so we thought it would be a good thing as part of a quantum that we receive for this agreement, as part of this agreement, for the council to not have to worry about it. And that was a way of - a give for the employees to the employer. Absorbed as part of the quantum received.

PN105

THE SENIOR DEPUTY PRESIDENT: I see. Was there any estimate made of the actual number of occasions when an overtime meal allowance would normally be payable?

PN106

MR LAGUE: It is very minimal. It is normally payable to those employees who attend council meetings, so it is mainly the senior managers that were involved in this particular case.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes.

PN108

MR LAGUE: Plus a secretary at the night. But it was voted on as part of our negotiations with the employees that we would give that up as part of this agreement.

PN109

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Hill, clause 31 deals with the disciplinary process, 31.3 talks of a problem solving conference. Should I understand then that an employee would not be dismissed prior to the convening of that problem solving conference?

PN110

MR HILL: Yes now, your Honour, that was part of the award going back many, many years ago and has obviously been retained as part of that process. I mean, simply that is the requirement, that there would be a conference prior to the actual dismissal. Although I note in paragraph 2:

PN111

The council, however, reserves the right under the award to apply summary dismissal in cases where it is considered warranted.

PN112

Now, that tends to run across 31.3 to a degree.

PN113

THE SENIOR DEPUTY PRESIDENT: See, I did not write it.

PN114

MR HILL: No.

PN115

THE SENIOR DEPUTY PRESIDENT: I am just asking you to tell me what the parties intended.

PN116

MR HILL: Again, your Honour, I can only indicate that that would be the interpretation one would have to place on it. And again, Mr Lague might have some comment on that.

PN117

THE SENIOR DEPUTY PRESIDENT: Mr Lague, do you want to comment on that particular provision?

PN118

MR LAGUE: No. At this point in time we did not have an issue with that particular clause.

PN119

THE SENIOR DEPUTY PRESIDENT: So I should apply it literally on the basis that there will be a problem solving conference prior to termination of employment?

PN120

MR LAGUE: Yes, your Honour.

PN121

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Hill, clause 32 deals with occupational health and safety and welfare. At 32.3 reference is made to the council's UV protection policy and at 32.3 reference is made to the council's occupational health and safety and welfare policies and practices. Should I understand that all of those policies exist in a documented form, that they are readily available to employees and that they may be changed over the life of this agreement?

PN122

MR HILL: That is correct, your Honour.

PN123

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Mr Hill.

PN124

MR HILL: Thank you, your Honour.

PN125

THE SENIOR DEPUTY PRESIDENT: Mr Lague, do you want to add anything to any of Mr Hill's responses other than those you have already commented on?

PN126

MR LAGUE: Yes, if I could, your Honour?

PN127

THE SENIOR DEPUTY PRESIDENT: Yes.

PN128

MR LAGUE: In relation to 20.1 which was the sick leave, that was actually referred to earlier on. Just go to that particular clause. Just as clarification with that, in the award as it was stated that it was five days, single days that employees are allowed to take during the year without a medical certificate, that was actually an item put forward by the employees to help out the employer in regards to only allowing the employees three single days during the year as part of this agreement. That was actually given by the employees.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes.

PN130

MR LAGUE: Other than that, your Honour, I have no further comment.

PN131

THE SENIOR DEPUTY PRESIDENT: Nothing further? Thank you.

PN132

MR LAGUE: No, thank you.

PN133

THE SENIOR DEPUTY PRESIDENT: Mr Payne, do you want to comment at all?

PN134

MR PAYNE: Yes, Senior Deputy President. I just had some clarification points. Unfortunately, I had not had a copy of the document prior to it being put to the employees for voting on, sir. These are just clarifications, they may help the Commission as well. Clause 13.9, sir, was not quite sure in 13.9 what the two - I am not sure what the difference is between the first, second quality indicators and the reference to the second quality indicators in there. I found it a bit confusing when I was reading it, sir.

PN135

THE SENIOR DEPUTY PRESIDENT: One are quantity indicators and one are quality, one group are quality.

PN136

MR PAYNE: Quantity and quality, well that answers my question, sir. I had not read it properly.

PN137

THE SENIOR DEPUTY PRESIDENT: Are there any others you - - -

PN138

MR PAYNE: There was only one other one, sir, it was one that you raised in a lot of issues in other enterprise agreements that were in these areas, is 16.2, sir. That we had been changing the ASU, when I say we, the ASU had been changing in a lot of the agreements that were with councils with respect to the reclassification, sir. It is the last paragraph in 16.2 where it implies:

PN139

Any member not satisfied with the determination may choose to access the dispute resolution/grievance procedure before choosing to access a board of reference constituted under 3(3) of the award.

PN140

As indicated by this Commission before, sir, used to - would seek whether it was council's intention that an employee if there was arbitration, conciliation and arbitration, whether the people could then access a board of reference if they were not satisfied with the outcome.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes. How would the council see that operating? Are there two tiers of dispute resolution with the board of reference being the final tier?

PN142

MR HILL: The award, your Honour, provides an appeal from the board of reference to the Australian Industrial Relations Commission. There is no reverse sort of appeal arrangements, if you might put it that way.

PN143

THE SENIOR DEPUTY PRESIDENT: But the dispute resolution procedure envisages that an unresolved matter might ultimately be referred to the Commission for arbitration.

PN144

MR HILL: It does.

PN145

THE SENIOR DEPUTY PRESIDENT: If you track that through, it might mean that a matter, a disputed reclassification, be the subject of conciliation, ultimately arbitration, then back to a board of reference before finally concluding with another round of arbitration. And I think it probably more likely that a Commission member would say relative to the first potential involvement of the Commission that they are unlikely to wish to exercise the section 170LW arbitral powers. But, do you agree with that?

PN146

MR HILL: Yes.

PN147

THE SENIOR DEPUTY PRESIDENT: That potential for confusion exists?

PN148

MR HILL: When they talk about the dispute resolution/grievance procedure, maybe they could be clearer, your Honour, because it does lead to - potentially lead to a situation with a cat chasing its tail.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes.

PN150

MR HILL: Now, what I think the parties mean by that is that there would be shop floor discussions between the parties with a view to local resolution, but failing that the parties have the option of going to the board of reference or to the Commission, either/or. I think that in practice and in terms of our understanding, that would be the case.

PN151

THE SENIOR DEPUTY PRESIDENT: In terms of the council's view, can I take it then the council would not be seeking arbitration of a matter whilst the option of the board of reference continued to exist?

PN152

MR HILL: I think that the councils generally take the view, and I think this would be the case here too, your Honour, and it is provided for in the award, but once you go through the local negotiations or discussions that you can choose to go directly to the Commission, if that is your choice, or you can go to the board of reference, which is a less formal type of review body and with a further right of appeal in that case against the board of reference to the Commission. I think if you go directly to the Commission then your appeals are as normally set out in the Act.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Payne, is there anything further?

PN154

MR PAYNE: There is only one further, Senior Deputy President, that was in the definitions clause 3.14. And as I had not indicated before, sir, understanding fully that this is an LK agreement, it is not the preferred option of our organisation and LK agreements are in place in these areas, but in acknowledging that on transcript, sir, I also understand that the provisions of the Act indicate that this is a process that can be pursued by the parties and it is not for me to argue here today, sir, whether it should be or should not be.

PN155

My query is regarding being concerned with clause 13.14, my understanding on what I have heard today, the single bargaining unit that meets with management consists of Mr Lague and the CEO. And throughout the document the single bargaining unit has some onerous tasks with regards to disputes and so forth, and Mr Lague, as the finance manager, and the CEO, whether it was the intention of council that that would be the party that acted as the single bargaining unit throughout the life of the agreement and with regards to all of the references that are made with regards to that committee, sir.

PN156

THE SENIOR DEPUTY PRESIDENT: Mr Hill might be able to comment. I can only observe that what the parties write into the agreement, provided it is consistent with the Act, is fundamentally their call. But Mr Hill might be able to help.

PN157

MR HILL: Your Honour, the definition there of single bargaining unit, it means that it is a consultative forum, representative of employees and management. Meetings are required for the purposes of a range of functions and renegotiating, reviewing, monitoring the agreement, considering issues and disputes arising out the agreement and fulfilling any other role or function which may be assigned to it in the agreement.

PN158

Now, my understanding from the council's point of view on this is that issues and matters varied from time to time and the consultative arrangements and the personnel to be involved in that consultation process might vary from time to time. It is as simple as that, your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: Does that help, Mr Payne?

PN160

MR PAYNE: Yes, thank you.

PN161

THE SENIOR DEPUTY PRESIDENT: Mr Hill, I am going to adjourn the matter on the basis that we have talked about, namely that the parties can go back and repeat the process outlined in section 170LK. The option exists for changes to be made to the agreement at the discretion of the parties. If I am provided with a revised agreement and revised statutory declarations and advice about the extent to which I can rely on the information provided to me today, and can subsequently certify the agreement, I shall do so from the date upon which I receive that material.

PN162

I would propose on the basis that there is no objection from the employer, to simultaneously make an order in accordance with section 170M(3) of the Act so as to make the ASU a party bound to the agreement. I take it that you are happy with that approach?

PN163

MR HILL: Yes your Honour.

PN164

THE SENIOR DEPUTY PRESIDENT: If on the material provided to me there was any doubt about the certification, then I will reconvene this hearing to see whether we can sort through the issue.

PN165

MR HILL: Yes.

PN166

THE SENIOR DEPUTY PRESIDENT: Can I also suggest that in addition to the modification to the notice of intention we have already discussed, that it might be prudent to send a copy of whatever you are sending to the Commission to Mr Payne, so as to avoid the potential for confusion.

PN167

MR HILL: Quite okay, your Honour.

PN168

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Lague, are you happy with that approach?

PN169

MR LAGUE: Yes. your Honour.

PN170

THE SENIOR DEPUTY PRESIDENT: Please make sure that you do not send anything back to me within the next 14 days , you'll then know you have a different form of problem.

PN171

MR LAGUE: Certainly, your Honour.

PN172

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Payne, are you happy with that approach?

PN173

MR PAYNE: Yes, sir.

PN174

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [10.48AM]