AG2005/5986, Transcript of Proceedings [2005] AIRCTrans 2277 (3 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13226-1

COMMISSIONER DANGERFIELD

AG2005/5986

APPLICATION BY TRANSADELAIDE & COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-ELECTRICAL DIVISION SOUTH AUSTRALIAN DIVISIONAL BRANCH AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5986)

ADELAIDE

1.36PM, WEDNESDAY, 19 OCTOBER 2005

PN1

MR D JOHNS: I appear on behalf of TransAdelaide.

PN2

MR R HANCOX: I appear of behalf of Australian Rail, Tram and Bus Industry Union.

PN3

MR R DONNELLY: I appear on behalf of the CEPU.

PN4

MR J BRAITHWAITE: I appear on behalf of the Australian Workers' Union

PN5

THE COMMISSIONER: Mr Johns?

PN6

MR JOHNS: Thank you, Commissioner. Commissioner, the parties appear before the Commission today seeking certification of the TransAdelaide Infrastructure Certified Agreement of 2005 pursuant to section 170LJ of the Workplace Relations Act 1996. The previous enterprise agreement has nominally expired and it is intended that this agreement will replace that nominally expired agreement. The agreement submitted for certification by the Commission will cover employees involved in the infrastructure operations of TransAdelaide located at Mile End who are covered by the Rail Industry TransAdelaide Award of 2002 and this award is recognised at clause 7.1 of the agreement.

PN7

In relation to the no disadvantage test, I submit that the proposed agreement satisfies that test as it does not contain any terms inconsistent with the Workplace Relations Act of 1996, and it does not provide terms and conditions of employment that would be considered less favourable than the underlying safety net award.

PN8

The nominal expiry date of the proposed agreement is 31 December of 2005 which is clearly not more than three years after the date on which this agreement will come into effect. Clause 24 of the proposed agreement specifies the procedures for the prevention and settlement of disputes between the employer and the employees whose employment will be subject to this agreement.

PN9

The agreement was made in accordance with section 170LJ of the Act and I submit that a valid majority of people whose employment will be subject to the agreement supported the agreement. The terms of the agreement were discussed with the employees and the employees were able to ask questions relating to the agreement directly with TransAdelaide. Copies of the agreement were posted to each employee's home address 14 days before the conduct of the ballot is required by the Act. The application was filed with the necessary statutory declarations within the 21 day time limit as specified under the Act.

PN10

In conclusion, sir, I commend the agreement to the Commission and I ask that it be certified as from today's date subject to you having matters that you wish clarification there is nothing further that I wish to submit at this time, if it pleases the Commission.

PN11

THE COMMISSIONER: I might come back to a few matters in a moment, Mr Johns, but I will hear from the others in the meantime.

PN12

MR JOHNS: Very good, Commissioner.

PN13

THE COMMISSIONER: Mr Hancox?

PN14

MR HANCOX: Certainly, Commissioner, we support the application by TransAdelaide to certify the agreement and for the operative date to be as from today.

PN15

THE COMMISSIONER: Mr Donnelly?

PN16

MR DONNELLY: Yes, sir, we support the application and we would request that the Commission certify the agreement from today and you have a statutory declaration signed by the secretary, R J Geraghty. Thank you, sir.

PN17

THE COMMISSIONER: Mr Braithwaite?

PN18

MR BRAITHWAITE: The AWU supports the submissions to be put before you, a statutory declaration has been forwarded to the Commission which outlines the fact that the terms and the requirements of the Act have been met and would seek the Commission's certification of the agreement from today's date, if the Commission pleases.

PN19

THE COMMISSIONER: Thanks, just a few things about the agreement, running through it. Clause 5.2 and 5.3, again, I note the nominal expiry date of this agreement being 31 December and that the parties should according to 5.3, well, they should commence discussions prior to the nominal expiry date to renew the agreement or commence negotiations on a new agreement so presumably those discussions will be underway relatively shortly.

PN20

In regard to some of the other aspects, I did pay particular close attention to clause 19, supplementary staffing, which first of all clause 18 which I think is really more a consultative provision then anything about the use of contractors. In regard to clause 19, I think the wording can be improved next time around and given the fact that this is a holding agreement in effect which is only for a short period of time, I understand what the parties are getting at here. I mean, I think what the parties are trying to achieve in clause 19 is one of those where the wages of supplementary staff are not to undercut employees and in that sense it pertains in the sense of section 170LI, but the way in which it is drafted, for example, from clause 19.3, .4, .5 it talks about a supplementary employee will be classified and paid pursuant to this agreement, well, there is a sense they can't be classified and paid pursuant to this agreement because they are not bound by this agreement if you know what I mean. They will receive annual leave entitlements based on the terms of their employment; they will be paid annual leave et cetera.

PN21

I mean a supplementary employee cannot sue pursuant to this agreement. You know what I mean, and the clause is written as though a supplementary employee is bound by the agreement. I know that is not the intention of the parties but it is just awkwardly worded in there, and I guess all I am saying probably Mr Johns and the union representatives as well, I think just pay a bit of attention to the drafting of this in your next agreement. I could, you know, provided some suggestions or there are plenty of suggestions in other agreements of the Commission which supplementary staffing, I just think it is a bit awkward, that's all.

PN22

For example, Mr Johns, take a look at clause 19.7:

PN23

In the event TransAdelaide proposes to retain the supplementary employee beyond the term of their employment or re-engage the person within a period of six weeks the individual is to be made a full-time employee.

PN24

What would you say to a question about how does that pertain to the relations of the employees covered by this agreement and TransAdelaide? What would you submission be as opposed to pertaining to the relations between TransAdelaide and the supplementary employee that was yet to be employed?

PN25

MR JOHNS: Commissioner, speaking to a clause that is in fact a word for word reflection of what is in the former agreement, I would envisage that if the intention was, without having been the drafter of the words, the intention may well have been that because the supplementary employee was intended to come in, do the work and then leave the organisation any extension of decision to re-engage that employee there was an expectation that, if I can just review the preceding paragraphs quickly, Commissioner?

PN26

I think the intention would be somewhere along the lines that the argument is that there would be elements of work which could be argued as ongoing and so that there was some limitations placed upon TransAdelaide as to extensions or re-engagements of people beyond that original agreed period.

PN27

THE COMMISSIONER: You see, I am talking about section 170LI and the Electrolux type issues and my question is simply on the face of it one could look at 19.7 and say, "Well, that pertains more to the relationship between TransAdelaide as an employer and a supplementary employee as a prospective employee of TransAdelaide rather than pertaining to the relationship between TransAdelaide as the employer and the employees covered by this agreement. The supplementary employees are not covered by this agreement, they are not covered. Clause 19 is written in terms as though they are covered, but they are not covered.

PN28

Look, it is a complex issue and probably my question is a bit of a trick question because, look, I am satisfied that clause 19 probably squeaks through, all right, in terms of I think the fundamental purpose of clause 19 is that the employment of supplementary employees by TransAdelaide is not to undercut the wages and conditions and the employment of employees of TransAdelaide directly covered by this agreement. I think that is what the parties are intending by it, they are intending no more, no less than what is in a host of standard supplementary staffing clauses of agreements of this Commission.

PN29

I think that is what you are intending but, again, I am saying that I think the wording is not as neat and trim and easy as it could be.

PN30

MR JOHNS: And my explanation I would have to couch because I don't have the hindsight as to what the parties intended with the drafting of this provision. I would have to couch what I would interpret that being because I couldn't commit TransAdelaide to something that wasn't intended, so I would have to couch it on the basis and understanding and it would not be something that TransAdelaide would want to be held to until I was able to do the research.

PN31

THE COMMISSIONER: I think it probably comes down to this clause was a carry over from a previous agreement that was drafted before the whole Electrolux decision of the High Court and it has just been carried over into this agreement. Now, I think it complies, I am not putting the frighteners on it, I think it complies, but I think you would do a better job of drafting it to make sure it, you know, it complies by the skin of its teeth at the moment, that is what I am saying, but I think it could be improved, the drafting could be improved for future, that is all I am saying.

PN32

MR JOHNS: It is one matter which has fallen through the scanning of the agreement to ensure compliance with Electrolux because, in fact, the union work site rep recognition and training clauses have been changed in this enterprise agreement in the light of Electrolux, Commissioner.

PN33

THE COMMISSIONER: Yes, I see. Look, while you are there, clause 20, and I understand this is a standard clause in some of the TransAdelaide agreements, but I think I have raised this question before somewhere, clause 20.8, for example:

PN34

Where a redeployee is temporarily placed in the public service department or agency, that department or agency will issue the redeployee with protective clothing and or equipment as required.

PN35

I mean, the clause purports to put an obligation on a department or agency that is not covered by this agreement and, of course, to that extent it can't do that, but I guess it is only just really a statement of policy, isn't it, that is all it is, that is the way I am reading it, and presumably where you have a redeployee who is temporarily placed in a public service department or agency, TransAdelaide is still paying their wage and the arrangement you have is, well, TransAdelaide will pay the wage but if they need any protective clothing or equipment for the job that they are in with that other public service department or agency that department or agency will pay for it?

PN36

MR JOHNS: In general terms, yes, Commissioner.

PN37

THE COMMISSIONER: That's what it means?

PN38

MR JOHNS: It was in fact the certification application of the Tram Enterprise Agreement that you did in fact raise this matter, and as I explained at that time there were a number of other agreements that were coming through where we were so through the process either to be at ballot or going to ballot and so as you indicated at that time it was not a showstopper, but it is a statement of policy, but it is the fact that until such time as a redeployee is placed in an ongoing capacity, they are in fact an employee of TransAdelaide but placed in a alternative position.

PN39

THE COMMISSIONER: Yes. Again, it is perhaps more to do with the drafting of the agreement then anything, but this agreement in a number of respects does read as though it is placing obligations on other parties ie., supplementary employees or public service departments or agencies who aren't party to the agreement, but it reads as though there is obligations on them. Now, again, it is just a drafting issue that I think can be tidied up where you go in the future.

PN40

The other general comment I would make and, again, this is a generic comment to this and the other couple of agreements coming up, but your disputes clause 24 I think is, well, there is some aspects of it I just find a little interesting particularly 24.6, 24.7 about the interaction between the conciliation phase and the arbitration phase and I think O'Callaghan SDP made some comments about that in connection with the section 170LW matter that we are going to be dealing with in about 20 minutes time or so. He made some comments, I think, in regard to the section 99 proceedings in that regard and it has now come back to me as a section 170LW matter. Do you recall that?

PN41

MR JOHNS: Definitely, Commissioner. Not wanting to go into the other matters - - -

PN42

THE COMMISSIONER: I think he made some observations that it is an interesting disputes clause and quite independently actually reading this I thought that's an interesting disputes clause, you know, it is just a bit awkward. It is nowhere near as simple as the one that we dealt with in the previous agreement. That is all I am saying, just a comment. It is a valid disputes clause, but I can see you getting yourselves into the odd tangle here with it, but it is valid.

PN43

Again, I think I have asked you this question before, clause 29.2 talks about:

PN44

The organisations of employees reserve their right to pursue transmission of business should it deem it necessary.

PN45

And that simply means I note that there is a transmission of business agreement between the Minister for Transport at the moment and the unions and I think all the unions are saying there is, look, notwithstanding anything in this agreement, we reserve the right to talk further to the minister about that if it becomes necessary, and that agreement you have with the minister is outside this agreement anyway, outside this certified agreement, so I guess there is nothing to stop you doing that at any time, but that is what the intention is, Mr Donnelly, Mr Braithwaite, Mr Hancox?

PN46

All right, well, I don't have any other comments on the agreement. Again, having carefully examined the agreement I am satisfied that this agreement can be said to pertain to the relations of the employer and the relevant employees in their respective capacities as such. Accordingly, I am satisfied that it complies with section 170LI of the Act. The application for certification is underpinned by statutory declarations of Bill Watson, general manager, TransAdelaide, Robert Norman Hayden, national secretary of the ARTBIU, John Braithwaite, branch organisers, AWU and R J Geraghty, divisional branch secretary, CEPU. All those declarations are consistent and are in order. I am satisfied the agreement passes the no disadvantage test and I note in this respect that it is underpinned by the Rail Industry TransAdelaide Award 2002.

PN47

The agreement as we have already noted at clause 24 includes procedures for preventing and settling disputes between the parties. It is clear on the material before me that a valid majority of persons employed at the time generally approved the agreement and that the explanation of the agreement took place in ways that were appropriate having regard to the requirements of the Act.

PN48

Accordingly, the Commission certifies the TransAdelaide Infrastructure Certified Agreement 2005 to be operative from today's date, 19 October 2005, and in accordance with clause 5.2 it will remain in force until the nominal expiry date of 31 December 2005. I note that the provisions of the agreement have in a number of respects been applicable for some time. I think the wages go back to 1 January this year, don't they? Nothing further then from the parties? That concludes the hearing of that matter.

<ADJOURNED INDEFINITELY [1.54PM]