AG2005/3497, Transcript of Proceedings [2005] AIRCTrans 1268 (8 June 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11681-1

COMMISSIONER DANGERFIELD*

AG2005/3497

APPLICATION BY ELECTRANET PTY LTD (TRADING AS ELECTRANET SA) & AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION-SOUTH AUSTRALIAN AND NORTHERN TERRITORY BRANCH AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3497)

ADELAIDE

9.27AM, WEDNESDAY, 25 MAY 2005

PN1

MR B SPENCER: I appear for ElectraNet.

PN2

MR T MURRAY: If it please the Commission, I represent the ASU in this matter. Also appearing with me sir is Mr Shane O'Loughlin, our workplace representative from ElectraNet.

PN3

MR E GRUE: May it please the Commission, I appear on behalf of the Association of Professional Engineers, Scientists and Managers, Australia.

PN4

MR R DONNELLY: If it please the Commission, I'm representing the Electrical Trades Union which is the electrical division of the CEPU.

PN5

THE COMMISSIONER: Thank you. Yes, Mr Spencer?

PN6

MR SPENCER: Thank you, Mr Commissioner. We're here to seek certification of the ElectraNet Pty Limited Enterprise Bargaining Agreement 2004 under section 170LJ being an agreement between ElectraNet, the ASU, the CEPU and APESMA. The agreement applies to employees of ElectraNet covered by
The South Australian Power Industry Award 2002. Negotiations on this agreement commenced in May 2004 and involved ElectraNet representatives, union officials and work place representatives. Staff were kept informed throughout the process through regular newsletters from the CEO after virtually every meeting. Twenty one newsletters in fact were issued to staff.

PN7

There were regular staff briefing meetings held. Six meetings of staff were held in the period 28 June 2004 to 28 April 2005 to brief them on the contents of the enterprise agreement and the new pay structure that was incorporated into the agreement. Workplace representatives and union officials attended those meetings so that they could address any issues raised by their members. The last three presentations to staff on 22 February, 24 March and 28 April this year, were joint management and union meetings.

PN8

Just some comments on the key features of the agreement. The term of the agreement is to 31 July 2006. It provides under clause 16, pay increases of 4.5 per cent on the first pay period after 30 June 2005 and 4.5 per cent on the first pay period after 30 June 2006. It includes in clause 7 a statement under our bond of the preferred way of working together in the organisation and in clause 9 some change initiatives that will improve the operation of the organisation. Clause 12 outlines the results of the remuneration review that have been conducted and introduces a new 8 grade pay structure in appendix 1(c) to replace the existing 11 grade structure which is described in appendix 1(a) and the wages structure in appendix 1(b).

PN9

It also includes the introduction of a new job evaluation process and clause 12.4 outlines the process for transfer into the new pay structure from 2 July 2005 and includes provisions that ensure that no employee is disadvantaged in that transfer. Likewise in clause 12.5, it deals with the preservation of existing rights of progression in the pay scale, once again to ensure that no employee is disadvantaged. Finally, in clause 12.6 where it outlines the absorption of allowances previously paid there is a loading provided for should the pay rise on transfer not fully compensate for the loss of allowances to ensure once again that employees are not disadvantaged. Finally, in clause 19 there's a disputes and issue resolution procedure that ultimately gives the power to the Commission for conciliation or arbitration.

PN10

In summary, the agreement provides benefits to employees and ensures that their pay and conditions are not reduced. It provides efficiency gains for the organisation and promotes cultural change. To ensure that employees understood the agreement and had access to it and were able to vote in an informed manner, all staff were advised that the agreement was placed on the intranet on 12 April and all staff have access to the intranet. They were also advised at that time that a vote would be conducted in the week commencing 26 April 2005. On 15 April staff were advised again that the meeting had been arranged for the vote and that that was to be conducted on 28 April.

PN11

On 28 April we held a final briefing session with management and unions explaining the agreement and that was followed by the vote on the agreement. Unions conducted the vote with their members and management representatives conducted the vote with non union members. An overwhelming majority of employees who attended the vote, voted in favour, accepting the agreement. Application for certification of the agreement was lodged by ElectraNet on 9 May 2005 by means of form R27 application and accompanied by the form R28 statutory declaration signed by the CEO, Ian Stirling, together with copies of the agreement. Commissioner, I submit that we have complied with the requirements of the Act and therefore seek certification of this agreement.

PN12

THE COMMISSIONER: Yes, Mr Spencer. Just a couple of minor questions or clarifications, page 12 of the agreement, clause 11, just over half way down:

PN13

This commitment does not apply to contractors or sub contractors to ElectraNet.

PN14

and secondly:

PN15

Personnel engaged on contracts for service.

PN16

I'm just wondering what's the difference between contractors and personnel engaged on contracts for service?

PN17

MR SPENCER: The contract for service was just to make sure we covered all aspects of the contract work that was let by the organisation was not covered by this position. So it basically was just elaborating that a contract for service and the work performed by contractors are much the same.

PN18

THE COMMISSIONER: Yes. It's not a substantive point at all but I was just wondering, I suppose contractors or sub contractors, that could mean the corporate entity and personnel is perhaps the individuals.

PN19

MR SPENCER: Yes. Occasionally you may have people that are engaged to provide a service, not as a temporary employee.

PN20

THE COMMISSIONER: Yes. The other one, just page 17, clause 17, the clause is headed Consumer Price Index CPI Safety Net, I think. Shouldn't the reference in the fourth line of that clause where it says:

PN21

ElectraNet will apply an additional payment of up to 2 per cent if CPI over the normal life of this agreement is in excess of the total combined quantum increase identified in clause 9 of the certified agreement pay increases of this agreement.

PN22

MR SPENCER: In fact it should be clause 16.

PN23

THE COMMISSIONER: Clause 16, "Enterprise bargaining pay agreement increases" shouldn't it?

PN24

MR SPENCER: That's right.

PN25

THE COMMISSIONER: That's not a major issue. You might even simply want to - I think everyone would agree that's clearly a clerical mistake, if we can call it that, if you just want to provide a replacement page perhaps - page 17, I think it's obvious that it's clause 16 if you want to provide a replacement page I think that will cover that.

PN26

MR SPENCER: We can provide that today.

PN27

THE COMMISSIONER: Thanks for that. Mr Murray?

PN28

MR MURRAY: Thank you, Commissioner. Sir, our members have been consulted and fully agreed to the terms and conditions of the proposed agreement. Our members did have access to a copy of the agreement for some 14 days prior to the vote being taken and, sir, I would concur with the previous submission and seek the certification of the agreement. I also advise the Commissioner, sir, that I was actually interstate when the agreement was signed and there's been a bit of a communication mix up. I was under the impression our statutory declaration had been provided to the Commission but it hasn't. I can however indicate that I can hand deliver that to the registrar tomorrow, if the Commission pleases.

PN29

THE COMMISSIONER: Yes, that will be fine. I can approve it subject to that, Mr Murray. We will need that of course before we issue any certification but I don't imagine that would be a difficulty.

PN30

MR MURRAY: Thank you.

PN31

THE COMMISSIONER: Thanks for that. Yes, Mr Grue?

PN32

MR GRUE: May it please the Commission, I'd like to concur with the previous submissions. The association's provided a statutory declaration and supports the application and believes that the application meets the statutory requirements of the Act and believes that the agreement is a positive outcome after a long period of negotiation, particularly in relation to the new salary structure and pay rates.

PN33

THE COMMISSIONER: Thanks, Mr Grue. Mr Donnelly?

PN34

MR DONNELLY: Yes, sir, I concur with the previous three submissions that were put forward. The statutory declarations were given to your associate this morning. I apologise for the lateness of that, sir, but from the ETU point of view we believe that everything in the Act has been abided by. The members, the ETU members had at least 14 days to look at the document and a majority of ETU members voted in favour of the document so we'd ask the Commission to certify it.

PN35

THE COMMISSIONER: Yes. I checked that statutory declaration of Mr Gerritty, just as the submissions are being made this morning and that's all in order. Mr Donnelly, I just point out to the parties that the key things that the Commission looks for in the statutory declarations are that all questions are answered and that there is consistency between the answers, there's not some people saying one thing and other people saying another, and all the statutory declarations here are consistent, not identical, so that helps.

PN36

The Commission, I can indicate for the record, has before it an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ of the Act. I've considered the application and the terms of the agreement, the subject of the application. Firstly, I can indicate that I'm satisfied that the terms of the agreement in every respect pertain to the relations between the employer and the employees in conformity with section 170LI of the Act. They pertain to those relations in their respective capacities as such as employer and employees. I could perhaps just indicate that I had particular note in this regard to clause 20 of the agreement, the Union Recognition clause and the ElectraNet terms and conditions attachment 1, clause 2.12.2 Noticeboards and clause 2.13 Union Workplace Representatives, but in my view those provisions comply with section 170LI so I have no issue there. As indeed do all the other provisions.

PN37

The application before the Commission is supported by statutory declarations from Ian Stirling, Chief Executive Officer of ElectraNet Pty Limited, the employer in this matter, Ed Grue, Director, South Australia APESMA and Mr Gerritty, Branch Secretary of the CEPU. Those declarations are in order and I note that the ASU by Mr Murray will be providing a statutory declaration which should be straight forward and that will be provided within the next 24 hours. Having heard from the parties today in relation to this application to have the agreement certified under Division 2 of Part VIB of the Act, I firstly note that the South Australian Power Industry Award 2002 is the relevant award for the purposes of the no disadvantage test. Having compared the terms of the agreement with those of the award I'm satisfied that the agreement passes that test.

PN38

I note that the agreement at clause 12 of attachment 1, provides for a dispute resolution process. It includes procedures for preventing and settling disputes between the parties as required by the Act. The Commission is satisfied that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate having regard to the needs and circumstances of the relevant employees. Accordingly, subject only to the lodgement of that statutory declaration from Mr Murray, the Commission certifies the ElectraNet Pty Limited Enterprise Bargaining Agreement 2004 to be operative from today's date, 25 May 2005 and in accordance with clause 4 I note that it will remain in force until 31 July 2006 being a date that in accordance with the Act is not more than three years after the date on which the agreement comes into operation.

PN39

As I normally indicate in these matters, the necessary documentation confirming certification will issue from my office over the next few days after we've received that statutory declaration. I think that covers everything, unless there's anything further from anyone for the record? Nothing further, then I dispose of the hearing of this matter.

<ADJOURNED INDEFINITELY [9.42AM]