AG2004/8259, Transcript of Proceedings [2005] AIRCTrans 445 (22 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10468

DEPUTY PRESIDENT HAMPTON*

AG2004/8259

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

APPLICATION BY ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA (CENTRAL SECTION) INCORPORATED AND OTHERS
(AG2004/8259)

ADELAIDE

1.42PM, THURSDAY, 10 FEBRUARY 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN ADELAIDE

PN1

MR M. FOLEY: I appear for employer, Deputy President, for whom I seek leave, and with me MR G McHUGH, flight nurse manager for the employer.

PN2

THE DEPUTY PRESIDENT: Thank you Mr Foley. I think is it Mr Cushing on the video link?

PN3

MR M. CUSHING: Martin Cushing, yes.

PN4

THE DEPUTY PRESIDENT: I understand the communication link is not brilliant Mr Cushing, so we will do our best to include you in the process and, of course, you should feel free to make whatever contribution you wish to in a moment.

PN5

MR CUSHING: Yes.

PN6

THE DEPUTY PRESIDENT: Thank you. Yes Mr Foley.

PN7

MR FOLEY: Sir, from the outset some information has come to hand this morning that affects the application, and we take this early opportunity to draw your attention to it. If I may, sir, draw your attention to paragraph 5.6 of Mr McHugh's statutory declaration.

PN8

THE DEPUTY PRESIDENT: Yes.

PN9

MR FOLEY: Sir, I am referring to the procedural requirements under section 170LK, which this application refers to. In particular, section 170LK(2). My understanding, sir, is that 14 days between the notice and the vote is required. You will see from paragraph 5.6 of Mr McHugh's and Mr Cushing's statutory declarations that:

PN10

Written document outlining the effect of the new agreement was provided to all staff on 30 September 2004 and then subsequently on 10 November 2004 as part of the ballot process.

PN11

Deputy President, what has occurred, on 30 September 2004 there was a notice in the terms of section 170LK(2), and then the company draft agreement. That went to a vote prior to 20 November, and was rejected. That agreement was amended, it was varied. The form of the agreement, the subject of the 10 November 2004 notice was different from the agreement which accompanied the 30 September 2004 agreement. On that basis, sir, we see a problem with the certification, and we would seek to draw your attention to that. In particular, of course, the requirement of 14 days clear between the section 170LK(2) notice and the making of the agreement. Sir, we are in your hands as to suggestions how we can move forward, unless of course the Deputy President is in a position - is to not find that the 10 day period an impediment to certification. But we are in your hands, sir.

PN12

THE DEPUTY PRESIDENT: I think the difficulty is that a variety of Full Bench decisions have confirmed that the Commission's discretion in this area is either non existent, or if there is a discretion, it is very narrow and in that context I don't think I have the discretion to put it aside. It is a mandatory requirement of the Act and the views that have been taken by various members of the Commission and most importantly by the Full Benches of the Commission, is that if that requirement is not met there isn't a valid application, and therefore there is no valid application upon which the Commission can then exercise a discretion. So on that basis I think there is a difficulty, however, what I would suggest is this.

PN13

It is quite clear that the Commission has the capacity to allow amendments to applications. An amendment can't cure a defect like that, but what it would allow for is basically the same agreement to be resubmitted, with a 14 day notice period and all that that means, and if the agreement is then supported by a valid majority, then subject to confirmation of that circumstance and subject to anything that might arise from the application, I would be prepared to grant leave to amend the application, rather than file a new one, and I would be prepared to deal with it even in the absence of the parties, as a matter of convenience.

PN14

MR FOLEY: Thank you sir.

PN15

THE DEPUTY PRESIDENT: So in that context, Mr Foley, what I suggest is that you basically tell me all about the process in the agreement, and I will hear from Mr Cushing in a moment about that, and then we will deal with the mechanics of allowing an amendment to the application before we conclude.

PN16

MR FOLEY: Certainly sir. But for that procedural problem, sir, we say that the agreement is made and in the terms of section 170LK of the Act. Obviously we say that the procedural and substantive provisions of the legislation are met, but for that problem, sir. We would request that the Commission in due course certify the agreement as it currently stands. There is a reference to a salary packaging policy in the agreement, at - - -

PN17

THE DEPUTY PRESIDENT: Clause 10.9?

PN18

MR FOLEY: Yes sir, exactly, and I have a copy of that policy, which I thought the Deputy President may wish to - - -

PN19

THE DEPUTY PRESIDENT: That would be useful. Thank you.

PN20

MR FOLEY: Sir, in the light of the Commission's approach to salary sacrificing in very recent decisions, we would say that there is nothing in that policy that is an impediment to certification.

PN21

THE DEPUTY PRESIDENT: Mr Foley, you will appreciate that this potentially raises issues arising in what is generally called the Electrolux case. I am of course aware of a number of individual member decisions on that, and the view apparently adopted by the Full Commission in an appeal of one of those cases, whilst reasons have not been issued, it is my understanding that they have allowed the appeal against the view that salary packaging arrangements would not fit within the umbrella of an agreement capable of certification under the Act. I should say that in any event I have formed the view that salary packaging is permissible under an agreement in this jurisdiction. So in that context I don't believe there is any jurisdictional impediment to approval on that basis.

PN22

MR FOLEY: Yes sir.

PN23

THE DEPUTY PRESIDENT: But I think it is appropriate you provide the salary packing policy and subject to what follows, it will appear on the file to confirm that that was the arrangements that are referred to in clause 10.9 of the agreement.

PN24

MR FOLEY: Yes sir. Perhaps, sir, unless you have any specific enquiries regarding the operation of the agreement, and we, of course, are happy to respond to, that might be the best way to proceed.

PN25

THE DEPUTY PRESIDENT: Very well. The agreement I think is reasonably self explanatory. I also understand it is basically an update on an earlier version already certified by the Commission. In that context I do note that it adopts a sort of package approach to allowances and hours of work and other provisions in the context of what might be called a global salary, given that this is the second, at least the second time that this model has been adopted. Are there any comments you wish to make about the experience of this package in the context of the earlier agreement and how it has operated in practice?

PN26

MR FOLEY: Certainly sir. Mr McHugh would be able to shed a better light on that, sir.

PN27

THE DEPUTY PRESIDENT: Yes, Mr McHugh.

PN28

MR McHUGH: Thank you, sir. We have found that the annualised salary works well for our organisation, in view that our staff don't work a traditional - of all the time in the job, and they are working on a real basis, it levels their pay out and that is quite adequate in that respect.

PN29

THE DEPUTY PRESIDENT: Thank you. Mr Foley, I think, subject to dealing with the mechanics of dealing with the application, they are only issues I wanted to raise with you. Thank you. Mr Cushing, first of all, please feel free to remain seated, and secondly, is there anything you wanted to say on behalf of yourself and your colleagues regarding the agreement?

PN30

MR CUSHING: Unfortunately the proceedings so far have been very in and out. It has been difficult to follow what has been said. But as the agreement stands the one we voted on and agreed on we don't have a problem with it, no.

PN31

THE DEPUTY PRESIDENT: All right. Are there any particular features of the agreement that you wanted to draw to my attention?

PN32

MR CUSHING: Not in particular. As it stands it is fine.

PN33

THE DEPUTY PRESIDENT: I think it received unanimous endorsement, or at least very strong endorsement by the employees?

PN34

MR CUSHING: It was unanimous.

PN35

THE DEPUTY PRESIDENT: Very well. Thank you, Mr Cushing. The issue that Mr Foley has referred to earlier might need some explanation, but given the difficulties of this communication system perhaps we will let him do that, or Mr McHugh, will do that with you by telephone landline after the event I think. Otherwise it will be a bit problematic.

PN36

MR CUSHING: Agreed.

PN37

THE DEPUTY PRESIDENT: Thank you. Anything further, Mr Foley?

PN38

MR FOLEY: No, thank you, sir.

PN39

THE DEPUTY PRESIDENT: All right. What I want to indicate is this, that subject to receiving an agreement in the same terms, but which has been endorsed following the 14 day notice as contemplated in section 170LK of the Act, it would be my view that the agreement would be both certifiable and that it would be appropriate that I indeed adopt that course of action. In that context, provided the notice is given and the employees do re-endorse, or confirm, their consent for the agreement following the 14 day period, in my view that consent would represent a valid majority, with all that that means in terms of the Act.

PN40

Secondly, in terms of the agreement itself, I would be satisfied that it would meet the no disadvantage test of the Act. It is clearly a customised arrangement in a fairly unique circumstance. However as a package, in my view, it does meet that test. It is in fact a beneficial and mutually productive arrangement, and subject only to receiving confirmation of the agreement being readopted, and confirmation Mr Foley that that process had been followed, it would be my intention to issue a certificate forthwith certifying the agreement and in that context I wouldn't propose to reconvene these proceedings.

PN41

MR FOLEY: Thank you, sir.

PN42

THE DEPUTY PRESIDENT: Very well. Perhaps I should also indicate, Mr Foley, that prior to the proceedings we did receive contact from the Northern Territory office of the ANF, for lack of a broader description. It is my understanding that the ANF was cited in the statutory declarations, and may have had some indirect involvement. They confirmed to me that it was not their intention to seek to be bound by this agreement and, accordingly, there was no basis upon which they were seeking to intervene, and my understanding is they were not proposing to raise any concerns in any event. So I just thought I would put that on the record.

PN43

MR FOLEY: Thank you, sir.

PN44

THE DEPUTY PRESIDENT: What I will do then is I will adjourn the application with liberty to apply to have it amended, and look forward to receipt of confirmation of that process in due course, and I will then, as a matter of priority, issue the certificate. If the agreement is for some reason which is not immediately obvious to me, not endorsed then obviously there will be issues as to whether the application should be dismissed, but I think that is highly unlikely. So in the light of that perhaps optimistic and realistic view I would commend the parties on continuing to use this form of agreement. I think it is a particularly practical and mutually beneficial arrangement, and I wish the RFDS and the employees all the best, and hope to deal with your affairs again in due course. Thank you.

<ADJOURNED INDEFINITELY [1.57PM]