AG2005/4982, Transcript of Proceedings [2005] AIRCTrans 1669 (9 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12353-1

COMMISSIONER SMITH

AG2005/4982

APPLICATION BY ESK WATER AUTHORITY & CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, TASMANIAN DIVISIONAL BRANCH AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/4982)

LAUNCESTON

9.54AM, WEDNESDAY, 27 JULY 2005

PN1

MR E TIERNAN: I appear on behalf of Esk Water.

PN2

MR M DI PRETORO: I appear on behalf of the Community and Public Sector Union, State Public Services Federation Group, Tasmania branch.

PN3

MR B WHITE: If it pleases the Commission, I appear on behalf of the Construction, Forestry, Mining, Energy Union, Tasmanian Branch, and I have a letter from Mr Shaw from the Australian Services Union - - -

PN4

THE COMMISSIONER: Asking you to appear for them?

PN5

MR WHITE: Yes.

PN6

THE COMMISSIONER: Now's your chance, Mr White.

PN7

MR WHITE: Thanks, Commissioner.

PN8

THE COMMISSIONER: Mr Tiernan?

PN9

MR TIERNAN: Commissioner, good morning as well. We've been through a process of consultation with our staff and with our unions, in relation to negotiating an enterprise agreement. The process has been for over a period of four or five months, and we've made a number of minor changes to the agreement and all parties are happy with the outcome.

PN10

THE COMMISSIONER: Right, there’s a couple of questions I've got in mind. We just need to change the parties bound, but I don't see that as much of a problem. We don't bind state branches of unions, we bind the union, so it’s the slip rule. We can get another page to fix that. It's not a problem. So instead of saying CPSU SPSF Group Tasmanian Branch, it will just be CPSU, the Community and Public Sector.

PN11

MR TIERNEY: We actually have two entities.

PN12

THE COMMISSIONER: Do you?

PN13

MR TIERNEY: Yes, the CPSUs state branch is the SPSFT Incorporated and when we are in the federal arena, we are actually the SPSF Group, Tasmanian branch as part of the federal, so there’s actually two separate entities.

PN14

THE COMMISSIONER: Yes, but you're not registered. The SPSF Group isn’t registered. The CPSU is registered, isn't it? I think so.

PN15

MR TIERNEY: I'm not sure Commissioner, ok.

PN16

THE COMMISSIONER: And the same with the Tasmanian branch. It's the actual registered entity that's got to be party. I don't want anybody at some stage saying, "Oh, no, that’s not party bound, you know they haven't got any rights".

PN17

MR TIERNAN: Okay.

PN18

THE COMMISSIONER: So, I think it would be easy to do, just a new page that talks about Esk Water Authority. The ASU doesn't need to change. CPSU Communities Sector Public Union and the CFMEU. We’ll just delete the Tasmanian part.

PN19

MR TIERNEY: Okay.

PN20

THE COMMISSIONER: Because you are binding the union as a whole. Is that all right?

PN21

MR WHITE: Just a query Commissioner?

PN22

THE COMMISSIONER: Sure.

PN23

MR WHITE: This is the first time this has -

PN24

THE COMMISSIONER: Arisen?

PN25

MR WHITE: We’ve never had it brought up with us before.

PN26

THE COMMISSIONER: Well, I'm always concerned to make sure that you can enforce your rights. It was actually raised in a decision that I had to issue the other day. Curiously, with the CEPU missing, it could be a bit of an issue between the electrical branch and the communications branch. I couldn't understand it, so I had to do a full arbitration on the matter with AIG, and it was the question of whether branches of Divisions could be actually bound, and the issue was, no, it's the union that is the identity that's registered in the federal Commission, that's bound. If you are concerned at any stage to make sure that it narrows down to your body in the states, you can have the scope of the agreement - the scope of the agreement will apply to members of, for example, the Tasmanian branch.

PN27

MR WHITE: Yes.

PN28

THE COMMISSIONER: So that the actual party is bound, you've got to get the legal entities.

PN29

MR WHITE: All right. Thank you, Commissioner.

PN30

THE COMMISSIONER: Another question. Both parties have acknowledged the employer's respondency to the City of Launceston Award 2002. Are you party to that award?

PN31

MR TIERNAN: No, Commissioner, we're not.

PN32

THE COMMISSIONER: I didn't think you were. So we haven't got an XF determination?

PN33

MR TIERNAN: Sorry- - -

PN34

THE COMMISSIONER: So, that’s no, too. Section 170XF of the Act. You'll have something to report to your ASU colleague, Mr White.

PN35

MR WHITE: I certainly will.

PN36

THE COMMISSIONER: Section 170XF is a provision that requires the Commission to determine which award will apply for the purpose of the no disadvantage Test. If you are not bound by an award, then I am obliged to make an XF determination to say that’s the award that will apply for the purposes of their negotiation. Within the Commission, there are two trains of thought. The first train of thought is that the XF determination has to occur first, before you can begin negotiating, because you don't know what the no disadvantage Test is.

PN37

The second train of thought is, well it can be done at the time of certification. For your benefit, I'm on the second train of thought. So it can be done at the time of certification. That leaves us with another problem, and that is if you have a look at 6.2 and 6.3 of your agreement, 6.2 of your agreement says "for the life of the agreement, the agreement will operate to the exclusion of the award", and then 6.3 of the Agreement says "you read the award in conjunction with the agreement". The two don't sit happily together. It's either going to be read in conjunction with the agreement, or the award becomes irrelevant.

PN38

Now, the problem you've probably got is, you probably don't have an award to which you respond, do you? Is there a federal award? There’s not. That’s why you picked the City of Launceston award.

PN39

MR WHITE: If I may, however, Commissioner, and- - -

PN40

THE COMMISSIONER: You see the problem?

PN41

MR WHITE: I see the problem, I didn't play any part in the negotiations as we relied pretty heavily on our delegate in this matter. And our secretary Tony Benson is involved in it as well. We know that this award is not bound by the City of Launceston Award. The reason why that was, I think that was in a previous agreement, and the reason for that, our understanding of it anyway - - -

PN42

THE COMMISSIONER: This is another one that nobody's raised with you.

PN43

MR WHITE: That’s right, it's never been raised beforehand, and the employees being ex-City of Launceston or municipal- - -

PN44

THE COMMISSIONER: MEU.

PN45

MR WHITE: - - - employees come under that award, so it was just transferred, with them, even though we realise it shouldn't have been done that way.

PN46

THE COMMISSIONER: You could probably have some sort of say in this.

PN47

MR WHITE: But, I can see it at 6.2 and 6.3, and I suppose I should have to get rid of one, but not having played in any part in negotiations- - -

PN48

THE COMMISSIONER: There might be some capacity to overcome the problem that you're looking out, without necessarily getting rid of one, but this goes to the point that I was making earlier, Mr White, is that when people make agreements, they are normally in love. When they fall out of love and they want to enforce their rights, you then start handing over buckets of money to lawyers, and this is just Greenfields excitement for lawyers. So, we'll need to have a look at that.

PN49

There is only one other matter that I had, that I'm sure you can help me with, and that is, 8.1.4, Variation to Normal Hours. Now, I've read that - correct me if I'm wrong - as being that, where the employee and the employer agree you can vary the working hours within the spread, but you can't vary the spread of hours.

PN50

MR DI PRETORO: That was my understanding of it as well, Commissioner.

PN51

THE COMMISSIONER: I just need to clarify that.

PN52

MR TIERNAN: Can we just clarify what you mean by spread, Commissioner?

PN53

THE COMMISSIONER: Well, the spread of hours is normally - and I have to go back to the- if you take an ordinary day worker, the spread is sometimes 6 am to
6 pm, and people can vary their working hours within that spread, so you might start at nine or you might start at seven, or whatever, you can vary the working hours. If you vary the spread, you are starting to, well - I become curious, let’s put it that way, because the spread is where you start to talk about overtime, where you start to talk penalty rates, there’s a whole range of things that fixes on the spread. Now, when I read it, I read it as not changing the spread of hours, simply giving you flexibility as to rostered starting and finishing times within the spread. That’s as I read it. Yes, that right?

PN54

MR TIERNAN: Yes.

PN55

THE COMMISSIONER: Terrific. Well, they are the only things that I have. What I'll do now, we'll go into conference and discuss the best way of going forward with your agreement. We'll go off the record.

<NO FURTHER PROCEEDINGS RECORDED