AG2004/8766, Transcript of Proceedings [2005] AIRCTrans 384 (16 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10410

SENIOR DEPUTY PRESIDENT LLOYD

AG2004/8766

s.170LK - agreement with employees (division 2)

APPLICATION BY ASPINALL FIRE SERVICE TESTING
(AG2004/8766)

MELBOURNE

10.12AM, FRIDAY, 04 FEBRUARY 2005

PN1

MR P MAGUIRE: I seek leave to appear as agent on behalf of the applicant in this matter, Aspinall Fire Service Testing Pty Ltd.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Maguire. Leave is granted.

PN3

MR MAGUIRE: Thank you, your Honour. Your Honour, you have before you today two applications, the first of which is an application for determination of the designated award or awards for the purposes of a certified agreement and secondly an application itself for the certification of an agreement. Both of these applications relate to an agreement made between the employer, Aspinall Fire Service Testing Pty Ltd and its employees, pursuant to division 2 of part VIB of the Workplace Relations Act.

PN4

Your Honour, in regard to the application under 170XF, the determination of designated award, your Honour, the application for that was lodged on 17 December 2004. In the intervening period, in particular 1 January 2005, the effect of the common rule provisions of the Workplace Relations Act in regard to Victorian employees came into effect and one of those awards, which was made common rule, was the Clerical and Administrative Employees Victoria Award 1999. That award was referred to in our application as being an appropriate award to designate in respect of some of the employees of Aspinall Fire Service Testing. So in effect, your Honour, a number of the employees are now subject to an award. They are bound by the terms as my reading and understanding of the Clerical and Administrative Employees Victoria Award, that some of the employees of Aspinall Fire Service Testing are bound by that, as is the employer.

PN5

To that extent there is in fact a relevant award, which, when we get to the application for certification that your Honour will need to address and in submissions we will need to address in terms of the no disadvantage test. However, insofar as the remainder of the employees that are bound under this agreement, or are parties to this agreement, there is a number of employees who perform work, part of which is of a clerical nature, but also part of which is an inspectorial type role which, when we talk about the nature of the business that Aspinall Fire Service Testing Pty Ltd performs, it is in essence, an inspectorial role within the - not the building and constructing industry, but in essence to inspect and certify for owners of buildings to ensure their compliance with appropriate Australian standards in regard to the maintenance of fire protection equipment and also its installation.

PN6

They do not actually install this fire testing equipment, they simply provide to test them against the appropriate building codes and Australian standards associated with that and certify that they are in compliance or not in compliance of what would need to be required to be performed to bring them in compliance with the appropriate regulations. To that extent, summarising and that is I suppose 50 words or less the nature of what the business is, it is a business or a nature of work which is actually not covered by any Federal Award, to the best of my knowledge, nor because the business operates within Victoria, is it subject to any State awards and therefore, our submission, your Honour, in determining a designated award in respect of those employees for the no disadvantage test, what we submit is that an appropriate award for those employees would also be the Clerical and Administrative Employees Victoria Award.

PN7

In support of that submission, your Honour, we say that the Clerical and Administrative Employees Victoria Award is a comprehensive award covering all of the safety net wages and conditions. It is an award which comprehensively also covers terms and conditions of employment that would normally be found within an award made by this Commission, and to an extent that it is compliant with all of the current test case standards in respect of leave arrangements, personal leave, annual leave, termination of employment; all of the elements that you would normally find within the awards made by this Commission.

PN8

There is a difficulty, I suppose, if I can describe it as that, hopefully not an insurmountable difficulty, in respect of the salaries and wages for the purposes of comparison. However, your Honour, our submission is that when the agreement is viewed as a whole and also when viewing those particular wages, we would submit that the rates are of such a magnitude that there ought to be no difficulty in reaching a conclusion, or at least being able to make a reasonable assessment balanced against all the other terms and conditions that are at the safety net and test case level, to make a decision pursuant to the no disadvantage test.

PN9

Your Honour, as I said, pursuant to section 170XF, the task of the Commission as for the purposes of determining an appropriate award, the Commission must determine an award or awards under the Act regulating terms and conditions of employment of employees engaged in the same kind of work as that of those employees under the agreement, or if the Commission is satisfied that there is no such award under the Act, the State award or State awards regulating terms and conditions of employment of employees engaged in the same kind of work as that of those persons under the agreement.

PN10

Your Honour, what we say is that you are entitled to make a determination of the Clerical and Administrative Employees Victoria Award as satisfying your requirements to exercise jurisdiction under those provisions, by virtue of the submissions that there is no stand out award, which is for the same kind of work. There is clearly no State awards. However, there is an element of clerical work and because some of the employees are going to be covered by relevant awards, that the Clerical and Admin Employees Award that for purposes of equity, that the other employees ought to also be - their terms and conditions under this agreement ought to be tested under that same agreement. Your Honour, that is all that I would address you on that particular matter, unless there is any specific questions you would want to ask.

PN11

THE SENIOR DEPUTY PRESIDENT: No, thanks, Mr Maguire, no.

PN12

MR MAGUIRE: Thank you.

PN13

THE SENIOR DEPUTY PRESIDENT: I appreciate that the award has been made a common rule, but I think in the circumstances and given your submission, it is best I think that I do make a determination under section 170XF(2) and I will do so now. I refer to the section 170XF application before the Commission. The Commission determines pursuant to section 170XF(2) that the Clerical and Administrative Employees Victoria Award 1999 is the appropriate award for the purpose of deciding whether the proposed agreement contained within this matter passes the
no disadvantage test. A formal determination in that regard will issue shortly. Thank you.

PN14

MR MAGUIRE: Yes, thank you, your Honour. The second application, of course, is the application for the certification under division 2 of part VIB of the Workplace Relations Act of the Aspinall Fire Service Testing Enterprise Agreement 2004. Your Honour, subject to some brief comments going to the statutory tests under the Act, we would seek to rely upon the statutory declarations that were filed with the application by Greg Aspinall, who is one of the directors of the employer and the applicant and of which the Commission will have had copies of and hopefully an opportunity to have read.

PN15

In regard to the employees, your Honour, it is a very small company and in fact the agreement was negotiated with all the employees because there are four of them and therefore there was no single employee who was nominated as a representative by them to act on their behalf. To that extent, in compliance with rule 49 of the Commission - the rules pursuant to the Workplace Relations Act, a statutory declaration was not filed on behalf of the employees. However, your Honour, if your Honour is of a mind to seek the views, opinions or evidence of the employer, we have an employee who will be bound by this agreement in attendance today if you wish to do so.

PN16

Your Honour, the application for certification is made arising from a number of events, one of which is that the business, Aspinall Fire Service Testing, has been in operation in Victoria for some years now. However, it has not been bound by any particular awards and the terms and conditions of employment of its employees has been pursuant to common law contracts and the minimum terms and conditions under schedule 1A of the Workplace Relations Act. The impetus for making the agreement with the employees was the impending common rule awards that were to apply and bringing that, I suppose, to the front of the mind of the employer and the employees to say, look, essentially we probably ought to sit down and work out some comprehensive terms and conditions of employment so it is clear, it is straightforward and we can understand what is applicable to us and it is also - once certified would be enforceable at law in a simple and convenient fashion.

PN17

That was the motivation for making the agreement. The terms of the agreement itself essentially codify what the existing terms and conditions were for employees, but with incorporating test case standards that the Commission would normally expect to see within its own awards and as such, parental leave, personal leave and categories of employment and the arrangements we normally see have been built into this enterprise agreement.

PN18

Your Honour, you will notice there is some flexibilities built in there as well, in that there is no designated specific hours of employment, but there are boundaries of employment, of the hours of work. Your Honour, the intention was that the nature of the business, there is a lot of travel involved and employees will go from job to job and it may be right across Victoria, carrying their equipment and so forth. The boundaries of the hours of work are around five days and no greater than 10 hours, on any particular day, but the true intent and meaning of such a clause is not that they would be working 50 hours per week on a regular basis. They are the outer boundaries in order to incorporate the odd occasion where they may have to travel to the outer regions of Victoria and it is inclusive of meal times and those particular travel times.

PN19

In essence, the average hours that are worked by the employees would certainly be no greater than 38. Your Honour, in terms of the no disadvantage test, my comments just then are relevant to that. On the back of the agreement you will see the wages or salaries which are all up rates under table 1 of schedule A. They are all up rates which are inclusive of a small amount of overtime that may be required from time to time and any other allowances that may arise under the relevant and/or designated award.

PN20

The positions, particularly the office employee administration positions, on a simple reading of the Clerical and Administrative Employees Award, you would see that the nature of the work is at the grade 1 and grade 2 and possibly grade 3 of the Clerical and Admin Award and your Honour will see that the salaries prescribed under this Enterprise Agreement are in excess of, substantially in excess of the rates prescribed under that award and to that extent that there ought to be no argument that there is no diminution on balance, terms and conditions.

PN21

In regard to the fire service testers, levels 1 through 2, 3 and 4, we would admit that it is very difficult to line up any particular rates of pay under the Clerical Award with those, but to the extent that we wanted to, to line them up for the no disadvantage test, we would see that the nature of those salaries again is far in excess of any of the rates prescribed under the award. Your Honour, as I said, they are the brief comments I would seek to make in regard to the test under the no disadvantage test.

PN22

The only other matter is that we submit that the agreement has been made in accordance with the appropriate requirements under section 170LT and that the agreement was approved by a majority of the employees, that they had the agreement at least 14 days prior to it. They were given the opportunity to contact a relevant union at the time and you will see within the statutory declaration there are attachments to that which go to the notice, explaining those matters to employees at the time.

PN23

There were two meetings to talk to employees about it and explain it and those were done during work hours and there was absolutely no coercion in making this particular agreement. They all freely entered into it, so we commend the agreement to you, your Honour, and seek the certification of that agreement. Thank you.

PN24

THE SENIOR DEPUTY PRESIDENT: I just need a couple of points of clarification.

PN25

MR MAGUIRE: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: With the stat dec, we seem to be missing the page which confirms that the organisation is a constitutional corporation. It is a page which our stat dec - about two pages in, has got item 3.2 at the bottom.

PN27

MR MAGUIRE: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: The next page is 4.1, so we are missing a page there. Do you have that page in your copy?

PN29

MR MAGUIRE: Not on mine. I am missing that one as well. Your Honour, I did download these from the - I am not sure.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, it might be a fault in our system but I do notice that the company is Pty Limited, so I presume it is a constitutional corporation.

PN31

MR MAGUIRE: Yes, it is. Were there any other matters in that page?

PN32

THE SENIOR DEPUTY PRESIDENT: No. That is on the stat dec. Just in regard to the agreement - - -

PN33

MR MAGUIRE: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: - - -couple of clauses that took my eye. One is clause 8.4 which is an unusual provision.

PN35

MR MAGUIRE: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Where there is a number of decisions now on the reverse clauses and call into question where there are clauses by a host employer requiring contract, labour hire employees to pay the same wages - Electrolux - this is a reverse clause where an employer here is agreeing to pick up the rates, but I noticed you said that the people would travel most days and attend various workplaces. This clause could be quite onerous to implement, I would expect, if you are talking about any term and condition which is above what is in the agreement, applying to the employees.

PN37

MR MAGUIRE: Yes, this clause is directed at, in fact, the exception rather than the rule.

PN38

THE SENIOR DEPUTY PRESIDENT: Right.

PN39

MR MAGUIRE: From time to time, which is in fact, probably less than five per cent of the employer's business, they may be required to, inspectors may be required to attend a construction site, so a building will, in fact, be under construction and therefore still under the control of the building contractor and various contractors' sub-contractors. In those circumstances there is - there may be an issue that arises as to, well, if they are to go on that particular site, could that give rise to a dispute between this particular Aspinall Fire Service Testing and the main contractor?

PN40

What we have sought to do here and it is not putting any obligation on a third party, it is pertaining directly to the relationship between the employer and the employee. In those circumstances we have said, look, if there is an enterprise agreement which covers the same nature of the work - we doubt there would be, by the way, your Honour, but if there were and they had those terms and conditions that were better than what is being offered here, then we agree to pay you, the employee, we will pay you those better rates, but it would be the trigger for this clause. Really, it may not actually occur and if, to the extent it does, it would be a minor part of the nature of the business.

PN41

THE SENIOR DEPUTY PRESIDENT: There would be considerable doubt as to whether an enterprise agreement, certified agreement, whatever, held by a major contractor could be enforced on to another employer. I think that is open to considerable doubt.

PN42

MR MAGUIRE: Yes, absolutely, your Honour. In fact, we avoided a wording of that fashion and constructed the wording in a way as to say, look, we can decide, essentially, if, where - the wording:

PN43

Where an award applies to employees testing at the work site and where such award or certified agreement exceeds the rate or conditions herein

PN44

We do not indicate who determines that. It is simply, well, if objectively under whatever test it is, we do not expect that debate to occur, but in those circumstances then we bargained, we will contract with you directly as an employee to pay you the higher rates.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you. That is helpful. I should note though, no employer can enforce another employer to step outside their own agreement.

PN46

MR MAGUIRE: Absolutely not and this clause certainly does not bestow any rights or obligations on anyone outside of the employer and employees within this organisation, within this agreement.

PN47

THE SENIOR DEPUTY PRESIDENT: Clause 15.3 also caught my attention. It is an unusual clause.

PN48

MR MAGUIRE: Sorry, clause - - -

PN49

THE SENIOR DEPUTY PRESIDENT: 15.3, re-employment of casuals I think it is headed.

PN50

MR MAGUIRE: We have taken this from the test case standard, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MR MAGUIRE: I hope we have done justice to it. Yes, yes, I cannot take credit for the wording on that one, your Honour. We took that directly from the test case standard which was applied, I think in the original, or as applied under the clerical, the test case standard as applied under the Clerical and Administrative Employees Award. I may be wrong on that but I hope the intention, as I understand it, is that it is to the extent, parental, a regular casual employee becomes eligible for parental leave, then they have to re-employ them.

PN53

THE SENIOR DEPUTY PRESIDENT: It is a bit strange, there is no - for casual employees, there is no obligation to employ them. They are employed on an as required sort of basis and you can pick whatever casual employee you want to pick, I suspect, but anyhow I must reacquaint myself with the test case provisions.

PN54

MR MAGUIRE: There was a variation to it to incorporate - it is a rather peculiar clause, I must say, but it was incorporated as part of a test case to allow some casuals with continuous service I think in excess of 12 months' regular employment, to enable them to take a period of leave, clearly without pay, which bestowed some entitlement or some obligation on the employer to re-engage them if the absence was due to this form of parental leave.

PN55

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. I am satisfied that the agreement was reached through a process consistent with that set out in section 170LK of the Act. I am satisfied that the requirements in section 170LT of the Act are met. I am satisfied that nothing arises from section 170LU of the Act that would require the Commission to refuse to certify the agreement. Accordingly, I will certify the Aspinall Fire Service Testing Enterprise Agreement 2004 and the agreement will come into operation from 4 February 2005. The agreement shall remain in force until 3 February 2008. The Commission is adjourned.

<ADJOURNED INDEFINITELY [10.37AM]