AG2005/2672, Transcript of Proceedings [2005] AIRCTrans 263 (7 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10282

COMMISSIONER BARTEL*

AG2005/2672

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

APPLICATION BY THE AUSTRALIAN WORKERS' UNION - GREATER SOUTH AUSTRALIAN BRANCH AND ANOTHER
(AG2005/2672)

ADELAIDE

3.16PM, THURSDAY, 27 JANUARY 2005

PN1

MR L DEGENHARDT: I appear on behalf of the Australian Workers' Union representing the employees of the District Council of Kimba

PN2

MS L JAMES: I appear for the employer, the District Council of Kimba, in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms James. Yes,
Mr Degenhardt?

PN4

MR DEGENHARDT: Thank you, Commissioner. On behalf of the Australian Workers' Union for the employees of the District Council of Kimba, we hereby seek certification of this agreement under section 170LS of the Act. We believe that the contents of this agreement have been struck in good faith, there has been very little change to this agreement over the past six years. The agreement seemed to run on. We have made provisions for the classifications and also changed the wage structure from the CPS plus the percentage increases and we believe that the agreement was struck in the best intent of both the employer and the employees.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thanks Mr Degenhardt. Look I had some questions about clause 4 of the agreement and some other matters that perhaps I will hear from Ms James and then I will put those to you. The other thing is that the agreement was filed outside of the 21 day period so I take it that an application is sought to extend the time limit?

PN6

MR DEGENHARDT: Yes, Commission, I have with me a letter that I believe was sent to the Commission from the State Secretary of Australian Workers' Union on 10 January 2005, stipulating the reasons why there was a late lodgement of this agreement and we ask the Commissioner to be lenient because the direct official were not present to get this agreement - or get the application by the certain time of the 21 days.

PN7

THE SENIOR DEPUTY PRESIDENT: Alright, yes, thank you. Thanks, Ms James.

PN8

MS JAMES: Thank you, Commissioner. Yes, the District Council of Kimba concurs that this covers 10 employees and that appropriate consultative processes have been undertaken in terms of all employees being aware of the agreement and the conditions held therein. It's basically a roll over, as we have said before, although we are aware that, there has been a number of other jurisdictional matters arising out of the certification of agreements in the past few months. We are hopeful that the agreement can be certified today. There are a couple of things I would just like to raise with you that are before me, before you ask questions of the Australian Workers' Union. I just wanted to mention, in clause 22 we haven't actually named the Industrial Commission that a dispute might appear before. We certainly have, under clause 21, grievance procedures, we have referred to the Australia Industrial Relations Commission.

PN9

So, too, in clause 23 but there has been a clerical error in not referring any dispute procedures under clause 22 to the Federal Commission, and so we would like to record it on transcript that certainly would be where we would be taking a dispute. And I don't think Australian Workers' Union will concur with that. That's all I have to say and I will hear what you have got to say in terms of the questions to the parties.

PN10

THE COMMISSIONER: Yes, okay. Well, look, just some housekeeping matters. I guess there's a number of appendices attached to my copy of the agreement, none of which, apart from appendix B, seem to serve any purpose.

PN11

MS JAMES: Yes, I am aware of that.

PN12

THE COMMISSIONER: My advice to council was to actually remove those. I am not really sure what the purpose is. Perhaps you would like to talk about that,

PN13

MS JAMES: I found it superfluous to the agreement as well. We could have actually completed appendix C having that faculty already having been awarded but certainly the future ones are a little strange as to what we really mean by that, and perhaps they just want to make it a total document as those safety nets get awarded and included in their file. But, in terms of the certification process, yes, I am not sure about its validity as well.

PN14

THE COMMISSIONER: I mean I accept they obviously can't record cases that haven't been handed down yet, but what's the purpose of them?

PN15

MS JAMES: The purpose would be simply to ensure that an employee is not disadvantaged in terms of safety net wage increases. So, for example, the wage increases plus there's a percentage named in the salary increase clause, $19.00 plus 2 per cent, with two increases and 19 per cent plus a negotiated wage increase. My understanding is that the reason for those appendices is to record what that safety net increase is as they are handed down and to ensure that the employees are not disadvantaged. So, undertaking comparative study of what those salary increases are, what they would have got under the award and what the enterprise agreement provides.

PN16

The plain words of the enterprise agreement doesn't specifically point that out, but the enterprise bargaining committee and parties would be meeting with regard to those safety net adjustments, the CPI increases, undertaking a research comparative study and ensure the employees are not disadvantaged. They would then put it to the CEO that the wage increase should be X or Y and then if there's a dispute around that particular matter, we would then invoke the dispute settlement procedure.

PN17

THE COMMISSIONER: Okay. And if there's no dispute and it's agreed there should be a larger increase, or an increase over and above the $19.00 per week for the third adjustment, then that would before the Commission as a consent variation. That's the intention?

PN18

MS JAMES: I am not sure whether the AWU does want to seek a variation in that matter or whether they want to just approve it in-house.

PN19

THE COMMISSIONER: Yes, alright. What can you tell me about that,
Mr Degenhardt?

PN20

MR DEGENHARDT: Thank you, Commissioner. Yes, the undertaking of the Kimba District Council is that the minimum wage adjustment by the CPI is $19.00, now, if the adjustment is higher, the council would commit to paying the higher rate plus the percentage above the award. That is even in 2005, in 2006 we recommend that the minimum again be $19.00 and plus we would review to see if the $19.00 was passed at the no disadvantage test for the employer so they wouldn't be disadvantaged, and that is an undertaking by the council, that the minimum of $19.00 on every increase.

PN21

THE COMMISSIONER: Okay, so the increase that may arise for the third adjustment would be based on the overall increases since the commencement of the agreement.

PN22

MR DEGENHARDT: Yes, Commissioner.

PN23

THE COMMISSIONER: Okay. So the total of the safety net adjustments under the award compared to the total of the increases under the agreement and if there's any disparity that you would say that variation - - -

PN24

MR DEGENHARDT: That's right.

PN25

THE COMMISSIONER: Okay. Now, in clause 8, wage adjustments, it then goes on and says that the parties shall meet and review the movement in the CPI and, where applicable, make an adjustment to enable an overall increase of 12 per cent for the three year period. Now, is that talking about something different again, that's over and above the amount organised for the third increase?

PN26

MS JAMES: Perhaps I can respond to that. I spoke to the deputy CEO this morning. What he's saying is that they want to make sure that collectively, the wage increases, so that's the $19.00 plus 2 per cent by 3, all adds up to at least 12 per cent so that they are not disadvantaged. So it's an overall 12 per cent wage increase over the three years of the agreement.

PN27

THE COMMISSIONER: And what has the CPI got to do with that?

PN28

MS JAMES: Yes, well, the CPI is used extensively throughout the sector in terms of enterprise agreements so it's quite a common thing for councils to look at the CPI and adjust the wages accordingly.

PN29

THE COMMISSIONER: Okay.

PN30

MS JAMES: So if the CPI is lower than 12 per cent. They would still get 12, that 12 is a fall back.

PN31

THE COMMISSIONER: Okay. And if the, CPI is more than 12 then?

PN32

MS JAMES: They would get the higher - they would have a higher wage increase.

PN33

THE COMMISSIONER: Thank you. So the first two adjustments I understand, then around or before 1 October 2006 there's the $19.00 per week plus a negotiated percentage depending on whether what the actual increases in the award has been over the period of the agreement. Then after that's done, then the parties meet again to check whether the overall increase through the three adjustments has equalled the CPI or 12 per cent, whichever is the lesser?

PN34

MS JAMES: Yes, that's correct.

PN35

THE COMMISSIONER: And the process for those negotiations around those particular figures, how is that undertaken?

PN36

MS JAMES: What do you mean, in terms of the process, how do they go about reporting to - - -

PN37

THE COMMISSIONER: Yes, who's going to actually sit down and tackle these issues?

PN38

MS JAMES: Under the wage increase clause, it talks about the parties so that would be the management representatives and the union representatives would sit down on a group basis, on a team basis, and undertake that analysis.

PN39

THE COMMISSIONER: Okay, that's - - -

PN40

MS JAMES: When I talk about team I am talking about the negotiation team.

PN41

THE COMMISSIONER: Yes and that's the case for the third increase as well.

PN42

MS JAMES: Yes. It relates back to where the deputy CEO said it's more than likely what - they just don't want the employees to be disadvantaged and so when we are talking about that 24 month review, it's more than likely that's going to even review that second wage increase, even though the plain words of the clause don't specify that. But they want to ensure that employees are not disadvantaged overall so the way I read it is that there's actually going to be two reviews. We have talked about the 24 month review but then under clause 8 there's another review in that final six month period.

PN43

THE COMMISSIONER: All right. And just in relation to the extension of time application, has there been any change of the composition of the workforce, or any major change in the composition of the workforce?

PN44

MS JAMES: There has been no change to the workforce or constitution in that period.

PN45

THE COMMISSIONER: All right. The only other question I have was the wages schedule, which is the last page of the attachments to the copy I have here, what are the figures in the second half of that page?

PN46

MS JAMES: The second half? Do you mean the first year, second year, third year?

PN47

THE COMMISSIONER: No, it goes across and I understand it's got the $19.00 and the 2 per cent, $19.00, 2 per cent, $19.00 and then whatever per cent that might be for the third increase. Then it's got two columns in the middle and then it's got first year, second year, three year average, three year increase. What are all those figures? It starts off 335, 545, 321, 527.

PN48

MS JAMES: I think what they have done is they have included EBA - no, this is number five, I was thinking this was EBA number six. Actually, I have absolutely no idea what they are. Is it just the value of the wage increase? If we look at EBA five, year one, year two, year three, it's talking about a weekly wage. I think the next group of columns looks like what the actual increase is on an hourly basis. I am not sure though.

PN49

THE COMMISSIONER: I wouldn't have thought so. It doesn't look quite right because the - - -

PN50

MS JAMES: $3.35, what would $3.35 be?

PN51

THE COMMISSIONER: Because the increases are lower at the top end in some cases.

PN52

MR DEGENHARDT: I think if you look at grade 7, if you go to the $19.00 increase in the first year, it represents 2.74 per cent.

PN53

MS JAMES: That's percentages.

PN54

MR DEGENHARDT: And an overall increase of 4.79 with the 2 per cent.

PN55

MS JAMES: It's the percentage of the wage increase. It's not $3.35 an hour, it's the percentage of the wage increase. So what they're saying is if we look at grade one, year one, that 3.35 is actually the percentage of that $19.00, that $19.00 represents 3.35 and the 5.45 is the extra 2 per cent.

PN56

THE COMMISSIONER: Why isn't that 5.35? Is there some compounding of it?

PN57

MS JAMES: Yes, it would be compounding, yes. It would be compounding.

PN58

THE COMMISSIONER: Okay.

PN59

MS JAMES: Sorry. I do understand it now that we have worked through it, that's what it represents.

PN60

THE COMMISSIONER: All right. Well, look, I think they were the only issues that I had. Now, did you want to keep those appendices in there? The blank ones?

PN61

MS JAMES: I served them papers. Do you want to keep the appendices in with the enterprise agreement? It actually serves no purpose.

PN62

MR DEGENHARDT: Well, I don't think it serves any purpose.

PN63

THE COMMISSIONER: Well, I mean to update them, they would have to come back here for the agreement to be varied to incorporate them.

PN64

MS JAMES: Yes, I know.

PN65

THE COMMISSIONER: I mean, it doesn't detract from the agreement to have them in there but it just doesn't add anything and - - -

PN66

MS JAMES: No, it doesn't and it would like quite odd on the website.

PN67

THE COMMISSIONER: All right. Well, look, I will delete appendix A, appendix C, D and E in the agreement. That's by consent? Yes, so the agreement's amended accordingly. I would also indicate that, given the assurance that the composition of the workforce hasn't changed, that I will extend the statutory time limit pursuant to section 111(1)(r) of the Act. Having done so, I am satisfied that the agreement meets the requirements of certification, that it contains the required dispute settling and other clauses, that it meets the no disadvantage test, that it was approved by a valid majority of employees who genuinely consent to its making, that the agreement is for life which doesn't exceed the maximum prescribed by the Act and that the agreement is about matter pertaining to the relationship between the employer and employees covered by the agreement.

PN68

Pursuant to section 170LT, I therefore certify the agreement. The agreement will operate from 1 October 2004 by agreement between the parties and will have a nominal expiry date of 30 September 2007. I note that the agreements been amended by deletion of appendices A, C, D and E. The agreement will be binding on the District Council of Kimba, the Australian Workers' Union, Greater South Australian branch in respect of its members and the employees of the council who are engaged to work under the Local Government Employees' Award, and a certificate will be issued to the parties in due course.

PN69

MS JAMES: Sorry, just before you say this meeting is adjourned.

PN70

THE COMMISSIONER: Yes.

PN71

MS JAMES: Can I just say that appendix A, that's not - remove that one and I will attach that. That is the wage rate which is sitting at the back of the enterprise agreement and it is referred to in the body of the enterprise agreement as appendix A.

PN72

THE COMMISSIONER: Alright. Well, look, what I might do then is I will delete the document that's called appendix A and I will amend the wages schedule at the back with the heading of appendix A.

PN73

MS JAMES: Thank you.

PN74

THE COMMISSIONER: Are you following us, Mr Degenhardt on that?

PN75

MR DEGENHARDT: Yes.

PN76

THE COMMISSIONER: By consent, yes. All right, so nothing further?

PN77

MS JAMES: No, thank you.

PN78

THE COMMISSIONER: Thank you.

PN79

MR DEGENHARDT: Thank you, Commissioner.

<ADJOURNED INDEFINITELY [3.34PM]