AG2004/8270, Transcript of Proceedings [2005] AIRCTrans 192 (28 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10044

COMMISSIONER BARTEL*

AG2004/8270

s.170LS - agreement about industrial dispute (division 3)

APPLICATION BY CITY OF MOUNT GAMBIER AND OTHERS
(AG2004/8270)

ADELAIDE

3.10PM, THURSDAY, 13 JANUARY 2005

PN1

MR HILL: May it please the Commission, I appear for the City of Mount Gambier, Hill GJ.

PN2

THE COMMISSIONER: Thanks Mr Hill.

PN3

MS DONAGHY: May it please the Commission, Donaghy F, from the Australian Services Union appearing in this matter.

PN4

THE COMMISSIONER: Thank you.

PN5

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

PN6

THE COMMISSIONER: Thanks Mr Grue.

PN7

MR HILL: Thank you Commissioner. Commissioner this is an application by the City of Mount Gambier and the Australian Services Union for certification of an enterprise or certified agreement under section 170LS of the Workplace Relations Act. Commissioner the agreement is essentially - just as a bit of background - is essentially a rollover agreement, there are some changes included, but they tend to be pecuniary type updating of reference to the agreement and things of that nature. A couple of new parts are under - I've noted - under clause 20.10 which deals with up skilling opportunities, 27.6, which deals with the identification of various classes of employee and what their entitlements may be under the corporate or..... reimbursement provisions.

PN8

THE COMMISSIONER: Yes.

PN9

MR HILL: On close examination it's also noted Commissioner, that from the prior agreement that the references to payroll deductions have been excluded.

PN10

THE COMMISSIONER: Yes.

PN11

MR HILL: So that hopefully may make our tasks - respective tasks - a little easier today - - -

PN12

THE COMMISSIONER: We'd like to think so, but - - -

PN13

MR HILL: Commissioner, the statutory declaration's been supplied to the Commission, the vote was - on the agreement - was I understand, unanimous in support of the agreement, it was taken on 7 December last year. From the Council's point of view we would say that the agreement meets all the certification provisions of section 170LS of the Workplace Relations Act and we would be seeking its certification as of today's date, noting that the agreement is for a period of two years, running - sorry it's for a period running to 31 December 2006. Now, the wage increases provided for are under clause 47 and provide for a 4.5 per cent increase on salaries from 1 December 2004 and a similar increase from 1 December 2005, 4.5 per cent.

PN14

Having put that to you Commissioner, if there's any questions you have in relation to the agreement, I'd be happy to try and deal with them.

PN15

THE COMMISSIONER: Okay, well look I guess there's two matters that arise. Having not a lot of work to do earlier this week I spent some time going through the agreement.

PN16

There's obviously a number of clauses that have been the subject of deliberation by Ballantyne and also under Electrolux, and I'd indicate that in all respects bar one, I'm satisfied that they're matters pertaining to the relationship between the employer and the employees or incidental or in the nature of machinery provisions, et cetera. There's two issues that I want to raise with you, one is salary sacrifice. Now, I note that this is a common provision, I accept that as I'm sure it's been in every other agreement that's come up and I've probably certified a lot of them, but as you are probably aware, that's a matter that's the subject of full Commission deliberation in Schefenacker and the other agreements, and that decision hasn't been handed down yet.

PN17

Now that was originally rejected by a single member of the Commission, but I understand that before the full Commission no party is challenging that it is in fact a matter pertaining to the employment relationship. Notwithstanding that, my view is that it's not appropriate for me to express any view on that or to take any action in relation to that clause while it's subject to full Commission consideration. Now hopefully that will be handed down fairly shortly. I'll just outline the issues and then I'll give you both parties an opportunity to respond to that. So that's one issue.

PN18

MR HILL: Yes.

PN19

THE COMMISSIONER: So that's one issue. The other issue - and look I'd indicate that from my own perspective I can't actually - in my view, I think salary sacrifice is a matter pertaining, but obviously I'll be guided by the full bench on that.

PN20

MR HILL: Yes.

PN21

THE COMMISSIONER: The other matter which does cause me some concern is the Journey Insurance matter. Now as far as I can see that hasn't specifically been considered in Electrolux or Ballantyne, that's clause 46 of the agreement. So perhaps I'll just leave it there for now and perhaps hear from the parties. I had a course of action in mind but I'll perhaps hear from the parties first in relation to those two matters.

PN22

MR HILL: Okay, well look perhaps on the first matter, salary sacrificing Commissioner, I note that the salary sacrificing is in relation to superannuation and specifically only permits the making of additional contributions to the local government superannuation scheme. The issue of superannuation is certainly a matter that would be, in my submission, which pertains to the relationship between employer and employee.

PN23

THE COMMISSIONER: And I think that matter has in fact been considered - - -

PN24

MR HILL: Superannuation perse

PN25

THE COMMISSIONER: Yes.

PN26

MR HILL: And in that context the salary sacrificing in counsel's submission, would be that it is a matter incidental to that relationship. Ancillary to or incidental to - if it was for example salary sacrificing to something other than superannuation, or something other than that could be held to be pertaining to the relationship between the employer and employee, then certainly I would take that point. But I think there is an argument, a strong argument, that salary sacrificing to superannuation is ancillary or incidental to that matter pertaining to the relationship.

PN27

THE COMMISSIONER: Well look, personally I don't have a problem with that.

PN28

MR HILL: Yes.

PN29

THE COMMISSIONER: The issue is more one of protocol and obviously the full bench deliberating. Now, if it's deliberating in relation to matters other than salary sacrifice, in ..... that that is matters that aren't relating to the employment relationship, then obviously I don't have a problem and this clause would be different from the one under consideration.

PN30

But look maybe - on the subject of what the other parties tell me, that might be a matter I'll need to just check up.

PN31

MR HILL: Perhaps just another point on that, I'm aware that through the Federal Commission and in fact the - a number of the local government agreements, that issue has arisen but it's generally been - arisen in the context of salary sacrificing to other areas.

PN32

THE COMMISSIONER: Other than - - -

PN33

MR HILL: As against superannuation. So perhaps I'll leave that clause at that level - - -

PN34

THE COMMISSIONER: Yes, all right, well look that's a matter I'll look into a bit further as well.

PN35

MR HILL: Now the other matter you raise is Journey Insurance.

PN36

THE COMMISSIONER: Yes.

PN37

MR HILL: And it's a question really as to whether or not it's a matter which pertains to the relationship between the Council - as the employer - and the persons covered by the agreement as employees. And I suppose in some respect, it could be analogist to the arrangements in terms of compensation and worker's compensation and the like, where there is those requirements to ensure under the contract of employment, where a contract of employment is in place.

PN38

Now, whether the argument as far as income protection is concerned, extending that type of coverage into private arrangements can also be drawn in this matter. I think that today's purposes I would - while I'm on my feet I would raise that argument.

PN39

THE COMMISSIONER: Yes.

PN40

MR HILL: And that point. But at the end of the day I'll leave that one with you Commissioner, and my friends.

PN41

THE COMMISSIONER: All right. Thank you Mr Hill. Yes, Ms Donaghy?

PN42

MS DONAGHY: Thank you Commissioner. Commissioner, look we support the submissions of Mr Hill in this matter and would ask that the agreement be certified. It - in the ASU's view - it does contain all clauses that do pertain to the employee/employer relationship, or are ancillary or pecuniary clauses. This agreement actually took quite some time to finalise, and it wasn't through negotiation over conditions; it was because the parties tried very, very hard to make sure that they would be putting before you an agreement that would be certified. The only thing I'd add in terms of salary sacrifice to what Mr Hill said, I'm happy to be corrected on this, but I believe that in the recent Federal Court, Wesfarmers - no actually I think it was on the Schefenacker ANF appeal, that salary sacrifice was found to be - was found to pertain - that that was one part of the decision that they didn't reserve that they actually put that through.

PN43

In any event in terms of salary sacrifice for superannuation, with the ANF - Schefenacker and ANF provision, I know that it is not salary sacrifice in terms of superannuation. In fact Senior Deputy President O'Callaghan said if it's for superannuation it's fine, but he then would not say that salary sacrifice for things other than superannuation do pertain and that it was that matter that was under appeal. But we'll be guided by your Honour on this.

PN44

THE COMMISSIONER: All right, well look I'll need to look into that as well. So if we go back to the .....

PN45

MS DONAGHY: And in terms of the Journey Insurance, I don't really have anything to add, other than what Mr Hill said, it certainly has been a feature of many agreements that we haven't had trouble with and so we felt quite confident in including that in the agreement.

PN46

In terms of the process, we believe that we - that that process has met the requirements of the Act. There was a lot of consultation with employees and it received unanimous support. So we would ask to be certified thank you.

PN47

THE COMMISSIONER: Right, yes Mr Grue?

PN48

MR GRUE: Commissioner, as a relatively minor player in this matter, APESMA simply concurs with the submissions of my friend from the ASU, and Commissioner, I'm advised that APESMA has provided the required stat dec and believes the requirements of the Act have been met Commissioner.

PN49

THE COMMISSIONER: Look, what I might do is just adjourn the matter for a couple of days. I'll go back and just check out the ..... of the original decision of SDP O'Callaghan and also whether that was the subject of any comment on the appeal. And in that time if the parties want to make any further submissions in relation to clause 46 then that opportunity will be provided.

PN50

MR HILL: Yes. Yes I think that's a good - - -

PN51

THE COMMISSIONER: Yes, look it's a hard matter to just - - -

PN52

MR HILL: Perhaps give us the opportunity to have a look at it - - -

PN53

THE COMMISSIONER: - - - just address off the top of your head.

PN54

MS DONAGHY: Commissioner will you just accept some written - further written submissions if there's something that we - - -

PN55

THE COMMISSIONER: Yes, and if the collective - single submission or individual submissions, in fact just any information you want to put in support of clause 46, being a matter pertaining. And look I'll receive those and then I'll either issue a certificate if I'm satisfied and if not then I'll contact the parties.

PN56

MR HILL: Okay.

PN57

THE COMMISSIONER: Thank you.

<ADJOURNED INDEFINITELY [3.26PM]