AG2004/8774, Transcript of Proceedings [2005] AIRCTrans 352 (15 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10203

DEPUTY PRESIDENT HAMILTON

AG2004/8774

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY HOBSONS BAY CITY COUNCIL AND OTHERS
(AG2004/8774)
Victorian Local Authorities Award 2001

MELBOURNE

10.51AM, TUESDAY, 25 JANUARY 2005

PN1

MR S WILSON: Mr Wilson from VECCI. I appear for Hobsons Bay City Council, With me I have MR P HUNT who is the director of community services at the city.

PN2

MR M GEORGIOU: I appear for APESMA.

PN3

MS L SUMPTER: I appear for the ASU.

PN4

MR B MEGENNIS: I appear on behalf of the Australian Nursing Federation.

PN5

THE DEPUTY PRESIDENT: Thank you very much. Who would like to start?

PN6

MR WILSON: Yes, thank you, your Honour, I will if the Commission pleases.

PN7

THE DEPUTY PRESIDENT: Before you start, I would like a submission if I could on a number of clauses; 13, right of entry; 6, not employed under AWAs; 14, workplace reps; 15, trade union training; 17.2, salary packaging. That's all right. I am sure you would have thought of all that, given the currency of the issues.

PN8

MR WILSON: Yes.

PN9

THE DEPUTY PRESIDENT: It might be worthwhile methodically working through them.

PN10

MR WILSON: Yes, your Honour. Perhaps if I could start at clause 13, the right of entry, your Honour. Your Honour, we believe that the right of entry provision has been dealt with in a number of decisions. We believe that Vice President Ross in the Ballantyne matter concluded that it was incidental or is incidental or ancillary and we believe that the clause that's present in this agreement, falls within that category and so we believe that it is not an impediment to the certification of this agreement.

PN11

THE DEPUTY PRESIDENT: There are of course other decisions on right of entry apart from Ballantyne which is under appeal before the Full Bench. Is that relevant to this present matter or is that a broader clause relating to right of entry.

PN12

MR WILSON: I suspect it probably is a broader clause, your Honour, I'll check that.

PN13

THE DEPUTY PRESIDENT: Do you suspect that?

PN14

MR WILSON: No, I believe it to be. I think the other decision that is relevant was the Barclay Mole decision of Deputy President McCarthy.

PN15

THE DEPUTY PRESIDENT: What was that decision?

PN16

MR WILSON: That decision again was that it is a matter that does pertain to the employment relationship.

PN17

THE DEPUTY PRESIDENT: What was the form of the clause in the matter? Was it related to enforcement in this way as the clause before us is?

PN18

MR WILSON: I didn't bring a copy of the clause but when I looked at it, it struck me as being very similar, your Honour. I can't say that it is from a word for word point of view, but it struck me as being very similar, yes.

PN19

THE DEPUTY PRESIDENT: Are there any decisions you would like to draw my attention to where a clause in this form has been rejected for the sake of completeness?

PN20

MR WILSON: I haven't, no, your Honour. I'm not saying there isn't, I simply haven't got them, no.

PN21

THE DEPUTY PRESIDENT: All right, thank you.

PN22

MR WILSON: Your Honour, I think the second one you mentioned was clause 6.

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MR WILSON: I assume it is the one:

PN25

Whereby council will not employ persons covered by this agreement under the terms of an Australian Workplace Agreement.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR WILSON: Your Honour, I'm not sure again. I must say that was one that slipped past me and I haven't done the research on that one, but we would submit that it is an ancillary provision that would be capable of being certified.

PN28

THE DEPUTY PRESIDENT: Why is that?

PN29

MR WILSON: Because it is part of what has been agreed between the parties and in terms of as I recall the Electrolux decision, that is capable of being certified within in that way.

PN30

THE DEPUTY PRESIDENT: Are you saying that the form of agreement that someone is employed under is more or less directly relevant to their employment relationship?

PN31

MR WILSON: Yes, your Honour, that's the case and we would submit that that is exactly part of what that clause is saying, ie. that it is part of the employment relationship, as the conditions of employment under which somebody is employed.

PN32

THE DEPUTY PRESIDENT: I must say, having given it some thought just then, I can't see how it cannot be a matter relating to the employment relationship in terms of the document or the nature of the document under which they are employed.

PN33

MR WILSON: I would have thought that to be the case, your Honour.

PN34

THE DEPUTY PRESIDENT: I suppose it's a question as to whether it has any legal effect in any event.

PN35

MR WILSON: I suspect it would probably would have to assuming the agreement is certified, your Honour, because it is saying that it is something that council will not do, but again I think that - - -

PN36

THE DEPUTY PRESIDENT: Is there a statutory right which can't be reduced by agreement. I'm not sure, I must say?

PN37

MR WILSON: That could be the case too, your Honour. I mean you can't contract out of acts and what have you so, even though it is still there, perhaps arguably the provision is still available, although it's obviously an undertaking that the council has given in terms of the negotiation process.

PN38

THE DEPUTY PRESIDENT: Yes. Anyway we are dealing here not with such theoretical issues but whether it offends section170LI.

PN39

MR WILSON: Our submission would be that it doesn't, your Honour.

PN40

THE DEPUTY PRESIDENT: Thank you.

PN41

MR WILSON: Which I think brings us to, clause 14 which is the next one that you asked. Your Honour, we would submit that the form of this particular clause is effectively about the provision of reasonable time and resources for workplace representatives to perform their roles and duties as a workplace representative and it assumes that time will be given and at certain times, the commitment may vary. We would say that that clause, your Honour, is consistent with the findings of Senior Deputy President Marsh and Visipac Beverage Packaging Division Pt. Operations Employees and Hospitality Miscellaneous Union Enterprise Agreement. That's PR953412. We believe that it under that decision, it is consistent that this clause would not be an impediment to the certification of this agreement, your Honour, which I think brings us to - - -

PN42

THE DEPUTY PRESIDENT: It all relates to resolution of workplace issues at the local level.

PN43

MR WILSON: Yes, it does, your Honour.

PN44

THE DEPUTY PRESIDENT: There is a direct tie.

PN45

MR WILSON: Yes.

PN46

THE DEPUTY PRESIDENT: Yes, thank you.

PN47

MR WILSON: Clause 15 is trade union training, I think is the next one you talked about, your Honour, and again we would say that Vice President Ross in Ballantyne dealt with the question of trade union training and he believed or determined that it was a matter that did pertain to the employment relationship and we would submit, your Honour, that this clause does no more than the Ballantyne decision.

PN48

THE DEPUTY PRESIDENT: Are there any decisions to the contrary that you would like to draw my attention to for the sake of completeness?

PN49

MR WILSON: Again your Honour, I do apologise. I didn't go to those points. Again, I'm not saying that there isn't, I just simply didn't research them, your Honour.

PN50

THE DEPUTY PRESIDENT: I understand. There is a limit to preparation.

PN51

MR WILSON: I think the next one - - -

PN52

THE DEPUTY PRESIDENT: Salary packaging, 17.2.

PN53

MR WILSON: 17.12 I think, your Honour.

PN54

THE DEPUTY PRESIDENT: Yes, sorry.

PN55

MR WILSON: 17.2 is compassionate leave, I think.

PN56

THE DEPUTY PRESIDENT: Indeed.

PN57

MR WILSON: Your Honour, we believe that again and submit that salary packaging has been dealt with by other decisions of this Commission and we believe that it is a matter that pertains to the employment relationship in a sense that it's a process by where it is a matter of how payment is made to individuals, so we believe that it does pertain, your Honour.

PN58

THE DEPUTY PRESIDENT: I assume you are relying that the Full Bench approved of a decision of an agreement containing a similar clause in Matter C2004/6790.

PN59

MR WILSON: Correct, that's the one, your Honour. Your Honour, I believe that - - -

PN60

THE DEPUTY PRESIDENT: I anticipate your submissions.

PN61

MR WILSON: Thank you. Your Honour, I believe, that unless you have any further questions, the agreement does meet all the requirements of the Act. We would rely on the statutory declaration of William de Boer, who is the chief executive of the Hobsons Bay City and ask that the agreement be so certified unless you have any further questions of me, if the Commission pleases.

PN62

THE DEPUTY PRESIDENT: Thank you very much, Mr Wilson. Who's next?

PN63

MR GEORGIOU: Yes, your Honour, I support the submissions made by Mr Wilson in these matters. I can say with regard to your Honour's questions of Mr Wilson regarding cases that may not support the case.

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR GEORGIOU: I have a prejudice, I only read them the ones that support an application, so I haven't - - -

PN66

THE DEPUTY PRESIDENT: Always a dangerous thing to do in my case.

PN67

MR GEORGIOU: It is.

PN68

THE DEPUTY PRESIDENT: I can say that.

PN69

MR GEORGIOU: It is. Mr Wilson wormed his way out of it and I am doing the same. There is just one correction I would like to make in clause 14, your Honour, where you talk about workplace representative rights.

PN70

THE DEPUTY PRESIDENT: Yes.

PN71

MR GEORGIOU: The reference in the third paragraph to clause 16 should be clause 15. We put to you that doesn't alter the intention of the agreement and shouldn't have to go back to all employees to vote on such a trivial matter and we ask the Commission use its discretion to vary the documentation submitted to change clause 16 and clause 15.

PN72

THE DEPUTY PRESIDENT: Do you want me to write it in by hand?

PN73

MR GEORGIOU: I don't know. I think we will have to resubmit it, your Honour.

PN74

THE DEPUTY PRESIDENT: Might it not be easier for me to do so, you correct me if I'm wrong. First of all, I certify it, then I'll vary it to remove the ambiguity by deleting clause 16 and inserting clause 15? That might be easier might it?

PN75

MR GEORGIOU: Yes but then we do all this paperwork and use a few more trees. Not that I am sensitive with regard to the environment but I do think that we should have some compassion for them. It is up to you, your Honour, you do what you think is best. Other than that - - -

PN76

THE DEPUTY PRESIDENT: I would like some sensible submission as to what I should do. Should I for example, await certifications until I receive a replacement document which contains the correction and then you rely on the slip rule to ask me to accept that as the actual tendered document. Would that be an appropriate way to do it?

PN77

MR GEORGIOU: It is appropriate.

PN78

THE DEPUTY PRESIDENT: So how long will it take you to get a replacement document with all the signatures?

PN79

MR GEORGIOU: Probably this afternoon. No, not this afternoon.

PN80

THE DEPUTY PRESIDENT: Perhaps you could provide me with a replacement page. Then I'll insert that in the document.

PN81

MR GEORGIOU: Yes, I think that might be the easiest.

PN82

THE DEPUTY PRESIDENT: I will use my powers pursuant section 111 and the slip rule as I am entitled to do, am I not?

PN83

MR GEORGIOU: Yes, you certainly are.

PN84

THE DEPUTY PRESIDENT: You agree with that?

PN85

MR GEORGIOU: Yes, I certainly do, your Honour. Other than that - - -

PN86

THE DEPUTY PRESIDENT: Mr Wilson, you wanted to say something?

PN87

MR WILSON: All I wanted to say, your Honour, is we can provide or the city will provide you with that replacement page this afternoon.

PN88

THE DEPUTY PRESIDENT: All right.

PN89

MR ROBERTS: And we believe we certainly can do it.

PN90

MR GEORGIOU: Other than that, your Honour, I rely on the submissions of Mr Arthurson of my organisation. I believe that the enterprise agreement complies with the Act and ask that the Commission certify it on and from today's date, if the Commission pleases.

PN91

THE DEPUTY PRESIDENT: There is consensus that the AWA section is essentially inoperative, that's interesting. Go on.

PN92

MS SUMPTER: If the Commission pleases, your Honour, I would like to support those submissions that have been provided here today and rely upon the statutory declaration that has been signed by the branch secretary Russell Atwood and would ask the Commission to certify the agreement today.

PN93

THE DEPUTY PRESIDENT: Thank you very much.

PN94

MR MEGENNIS: Thank you, your Honour. If the Commission pleases, the ANF also supports the submissions made by my colleagues here this morning and also the ANF relies upon the statutory declaration as provided by the secretary of the Australian Nursing Federation, Victorian Branch and requests that the agreement be certified from today's date, if your Honour pleases.

PN95

THE DEPUTY PRESIDENT: Thank you very much for that. On the basis of the submissions put and documents filed, I will certify the agreement as sought. Secondly, as soon as a replacement page is provided, the certificate will be issued and posted to the parties. Is there anything else we need to do, or is that it?

PN96

Thank you very much. This matter stands adjourned.

<ADJOURNED ACCORDINGLY [11.06AM]