AG2005/7870, Transcript of Proceedings [2005] AIRCTrans 2596 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13792-1

COMMISSIONER SMITH

AG2005/7870

APPLICATION BY CONFERENCE OF MAJOR SUPERANNUATION FUNDS PTY LTD & FINANCE SECTOR UNION OF AUSTRALIA-VICTORIAN AND TASMANIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7870)

MELBOURNE

11.01AM, FRIDAY, 16 DECEMBER 2005

PN1

MR R LOWREY: I appear for the Finance Sector Union of Australia.

PN2

MS D BRUCE: I am from the Conference of Major Superannuation Funds.

PN3

THE COMMISSIONER: Thank you. Mr Lowrey.

PN4

MR LOWREY: Commissioner, I don’t have much to say the FSU supports the application before you. We believe it meets all relevant requirements of the Act and I think the information required was all in the paperwork before you and we seek the Commissions endorsement.

PN5

THE COMMISSIONER: Thank you very much. Just one question, do I read it correctly that an employee can work 35 hours a week over any seven days at any time if they agree?

PN6

MR LOWREY: Do you have a clause there sir?

PN7

THE COMMISSIONER: Ten.

PN8

MR LOWREY: Commissioner, the clause is silent on that because they do have weekend - apart from what the award says, they are sometimes required to work at conferences on weekends, but fairly rarely.

PN9

THE COMMISSIONER: That’s what the clause says doesn’t it. You can work seven days a week any hour, any day, as long as you agree. Are you happy with that?

PN10

MR LOWREY: Our members have endorsed it. It’s in a similar wording I believe to the previous agreement, so having not drawn it to my attention as a problem I don’t see problems where they don’t exist sir.

PN11

THE COMMISSIONER: The employer and you’ve agreed, the employer and the employee can agree to anything cant they?

PN12

MR LOWREY: By agreement.

PN13

THE COMMISSIONER: Yes, by agreement.

PN14

MR LOWREY: I can’t see any of our members shooting themselves in the foot.

PN15

THE COMMISSIONER: All right thank you. Ms Bruce.

PN16

MS BRUCE: I’m in agreement.

PN17

THE COMMISSIONER: What do you say about the operation of that clause. What normally happens?

PN18

MS BRUCE: Well, we work long, actually quite long hours in some cases when there is a conference on. We manage conferences for 1,000 people at a time. We get a lot of time off in lieu in place of that, plus payment if - - -

PN19

THE COMMISSIONER: Is the time off in lieu contained in the agreement. Is it in the award probably is it if it operates in conjunction with the award?

PN20

MS BRUCE: Yes.

PN21

THE COMMISSIONER: I see. Do you accept that if a test of the reasonableness or otherwise of the requirements can be brought under the disputes settlement procedure?

PN22

MS BRUCE: Yes I do, it may happen, yes.

PN23

THE COMMISSIONER: It is unlikely that an employee is not going to agree with the manager about working weekends.

PN24

MS BRUCE: They wouldn’t be made to work weekends if that was the case.

PN25

THE COMMISSIONER: No, but it is unlikely that they would disagree.

PN26

MS BRUCE: It is unlikely that they would disagree.

PN27

THE COMMISSIONER: Yes.

PN28

MS BRUCE: It’s a very small company and we all work very well together and put in those hours together.

PN29

THE COMMISSIONER: Yes and it’s important for the business that they do agree, isn’t it.

PN30

MS BRUCE: Yes.

PN31

THE COMMISSIONER: Because if they don’t agree they really don’t fit in do they, because that’s the nature of the business.

PN32

MS BRUCE: Yes, but it doesn’t happen very often, it only happens actually during the conference. The conference - both of our conferences that we run twice a year are on weekdays but we usually work the weekend before.

PN33

THE COMMISSIONER: All right. I’m going to go on an enormous amount of trust because I’ve never seen a union agree to a clause that allows parties to agree - because I can’t put the no disadvantage test on this agreement I’ll trust what you say because the parties can agree to things that might mean that the wage rates you’ve agreed to, if I took out the penalty rates and the like are wholly inadequate. I think there are a number of problems with it and I wouldn’t like to think that it would become the norm in any way that parties think that they can agree to work anytime of the day and on any day.

PN34

That would just simply mean I can’t test it, because you could decide with an employee and employees want their jobs and they want to work with you, they’re unlikely not to agree, even though they might be a little bit unhappy, they are very unlikely not to agree. But I will go with an enormous amount of trust particularly on the basis that you say that if somebody’s apprehensive about the reasonableness or otherwise that’s a matter comprehended by the agreement and can be brought to the Commission for determination. Thank you very much.

PN35

This is an application pursuant to Part VIB Division 2 section 170LJ of the Workplace Relations Act, to certify an agreement to be known as the CMSF Certified Agreement 2005. I’ve heard from the parties and I’ve read the statutory declarations filed. It is not without some great hesitation and having regard to the submissions that I find the agreement passes the no disadvantage test. I’m satisfied that the agreement was made in accordance with section 170LJ and that a valid majority of persons employed at the time whose agreement would be subject to the agreement genuinely approved the agreement. The explanation of the terms of the agreement was appropriate and the agreement includes procedures for preventing and settling disputes between the employer and the employee whose employment will be the subject of the agreement.

PN36

The agreement specifies a date as a nominal expiry date which is not more than three years after the date on which the agreement will come into operation. In approving the agreement I have paid particular attention to the express view of the employer that if an employee believes the demands as to working hours are verging on unreasonable, that is a matter which goes to the proper application of the agreement and can be determined in accordance with the dispute settlement clause contained in the agreement. I am satisfied therefore there are no other reasons as set out in section 170LU of the Act as to why I should refuse to certify the agreement. Accordingly the agreement can be certified with effect from today and it will operate in accordance with its terms. Thank you the matters adjourned.

<ADJOURNED INDEFINITELY [11.09AM]