AG2005/7368, Transcript of Proceedings [2005] AIRCTrans 2549 (29 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13660-1

COMMISSIONER DANGERFIELD

AG2005/7368

APPLICATION BY TRANSADELAIDE & AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION-SOUTH AUSTRALIAN AND NORTHERN TERRITORY BRANCH AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7368)

ADELAIDE

1.33PM, MONDAY, 05 DECEMBER 2005

PN1

MR D JOHNS: I appear on behalf of the TransAdelaide.

PN2

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

PN3

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

PN4

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

PN5

MR S JOHNSON: I appear on behalf of the Community and Public Sector Union-SPSF Group, South Australian Branch.

PN6

THE COMMISSIONER: Thank you. Mr Johns.

PN7

MR JOHNS: Thank you Commissioner. Commissioner, the parties appear before the Commission today seeking the certification of the TransAdelaide Salaried, Professional Technical Employees Certified Agreement 2005 pursuant to section 170LJ of the Workplace Relations Act 1996. The previous agreement the TransAdelaide Salaried, Professional Technical Employees Certified Agreement 2001 nominally expired on 31 July 2004 and it is intended that this agreement will replace the nominally expired agreement. The agreement submitted before you today for certification will cover the 150 administrative, professional or technical support personnel within TransAdelaide who are covered by the Salaried, Professional Technical TransAdelaide Award of 2001 and this award is recognised at clause 4 of the proposed agreement.

PN8

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 1996 and it does not provide any terms and conditions of employment less favourable than the parent award. The agreement provides for a 10.5 per cent increase in wages over the life of the agreement with an increase of 3.5 per cent payable from the first full pay period on or after 1 January 2005. A second increase of 3.5 per cent payable under the same conditions from
1 January 2006 and a third increase of 3.5 per cent from 1 January 2007.

PN9

The agreement specifies a nominal expiry date of 31 July 2007, which is not more than three years after the date on which the agreement will come into operation. Clause 30 of the proposed agreement specifies procedures for preventing and settling disputes between the employer and the employees who employment will be subject to the agreement. The agreement was made in accordance with section 170LJ of the Act and we would say that a valid majority of people, that is 85 per cent of the employees whose employment will be subject to the agreement, genuinely approved the agreement.

PN10

The terms of the agreement were discussed at length with the employees and the employees were in fact able to ask questions in relation to the agreement directly with the employer. Copies of the agreement were provided to each employee 14 days prior to the ballot as required by the Act. The application for certification of the agreement was filed with the necessary statutory declarations within the necessary 21 day time limit as specified under the Act. In conclusion sir, I commend the agreement to you and ask that it to be certified as from today’s date. If it please the Commission.

PN11

THE COMMISSIONER: Yes thanks. Mr Johns just while you are there in clause 7.2 just for my benefit, it deals with contractual employment it says there at 7.2.1:

PN12

TransAdelaide in consultation with the organisation or organisation of employees may determine that a position be offered on a contractual basis.

PN13

I presume that by contractual employment there you mean fixed-term contracts, is that correct? It’s not a trick question, I’m just trying to find out what it is because I mean after all every employee is employed under a contract of course – is employed on a contract – but when you say contractual basis is that what you man? Is that a fixed-term contract provision in clause 7.2?

PN14

MR JOHNS: It’s actually been the discussion of matters recently within TransAdelaide. For purposes of certifying this agreement I would concur with your view Commissioner.

PN15

THE COMMISSIONER: Yes, I mean that’s the way I took it but - - -

PN16

MR JOHNS: It’s ambiguus wording. It’s as with the other TransAdelaide enterprise agreements that have come before you the situation was virtually a rollover agreement providing pay increases but apart from correcting some wording abnormalities and providing paid maternity leave little else has been changed.

PN17

THE COMMISSIONER: Okay.

PN18

MR JOHNS: At this late stage we became aware of some ambiguity but it’s something for the next round of enterprise bargaining to address I believe.

PN19

THE COMMISSIONER: Okay, thanks.

PN20

MR JOHNS: Thank you Commissioner.

PN21

THE COMMISSIONER: Yes Mr Hancox.

PN22

MR HANCOX: If the Commission pleases we support the application for certification as from today’s date.

PN23

THE COMMISSIONER: Thank you. Mr Payne.

PN24

MR PAYNE: Yes Commissioner, the ASU would like to quote some transcript that supports the previous submission and the application for certification of the agreement. Also Commissioner, to state that the ASU members and other employees governed by the agreement have been fully consulted with as to the content and the intent of the agreement and have also endorsed the agreement. Employees were also notified that the - of the intention of the parties to apply to the Commission for certification. Therefore Commissioner, given that the agreement and the statutory declarations meet the relevant requirements of the Act as well as having endorsement from TransAdelaide employees we would be urging the Commission certifies the agreement if the Commission pleases.

PN25

THE COMMISSIONER: Thanks and just while you're there Mr Payne I – it’s quite interesting I note that from the ASU there’s a statutory declaration from
Mr Denard the Branch Secretary supporting it. It was the first statutory declaration I’ve had that’s actually been declared before a registered nurse. I must say I went into all sorts of a fluster saying registered nurse, but I can assure you that having checked all this out with some careful investigation by my associate a registered nurse can declare a statutory declaration. Together with a whole heap of other people including chiropractors, dentists, optometrists, patent attorneys, pharmacists, physiotherapists, psychologists, trade marks attorneys and veterinary surgeons and I’ve learnt all that since digging it out so it’s the first one I’ve had.

PN26

MR PAYNE: I’ve just learnt it to Commissioner, it would have been nice if
Mr Denard had let me know. Thank you sir.

PN27

THE COMMISSIONER: Thanks for that. Mr Grue.

PN28

MR GRUE: Commissioner I can advise that APESMA also supports the application for certification and has provided the Commission with a statutory declaration declaring that in its views the requirements of the Act have been met, may it please the Commission.

PN29

THE COMMISSIONER: Thanks for that. Mr Johnson.

PN30

MR JOHNSON: Thank you sir. The CPSU wishes to advise that it supports the application of the agreement from this date and we’ve provided a statutory declaration. Thank you sir.

PN31

THE COMMISSIONER: Yes thanks. This is an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LJ. Firstly I can indicate that I’ve considered the terms of the agreement and I’m satisfied that the terms of the agreement in every respect, pertain to the relations of the employer and the employees in their respective capacities as such and hence, comply with the provisions of section 170LI of the Act. In that regard I particularly note that I’ve had a good look at all the clauses, but clauses 23 and 24 in particular and I’m satisfied that they comply in that respect. I’ve also perused the statutory declarations on file of Bill Watson General Manager TransAdelaide, Robert Normal Haden National Secretary of the Rail Tram and Bus Industry Union, Andrew Denard Branch Secretary of the ASU, Edward Grue Director APESMA and Jan McMahon General Secretary Public Service Union.

PN32

These declarations are all in order. Having heard from the parties today in relation to their application to have the agreement certified under Division 2 of Part VIB of the Act I firstly indicate that I’m satisfied that the no disadvantage test has been passed in comparing this agreement with the underpinning award which is the Salaried, Professional and Technical (TransAdelaide) Award 2001. I note that the agreement at clause 30 includes procedures for preventing and settling disputes between the parties as required. I’m satisfied on the material before me 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.

PN33

Accordingly the Commission certifies the TransAdelaide Salaried, Professional and Technical Employees Certified Agreement 2005 to be operative from today’s date 5 December 2005. I note that the initial wage increase would have already been long since paid I presume.

PN34

MR JOHNS: Commissioner, it is due for back payment.

PN35

THE COMMISSIONER: That is a significant amount of back payment.

PN36

MR JOHNS: Yes Commissioner.

PN37

THE COMMISSIONER: In accordance with clause 4.2 the agreement will remain in force until the 31 July 2007 being a date that is not more than three years after the date in which it comes into operation. Necessary documentation gentlemen will issue from my office over the next few days and unless there’s anything further from the parties for the record, that concludes the hearing of the matter.

<ADJOURNED INDEFINITELY [1.43PM]