AG2004/8175, Transcript of Proceedings [2005] AIRCTrans 492 (25 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10548

COMMISSIONER GRAINGER

AG2004/8175

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

APPLICATION BY MOIRA SHIRE COUNCIL AND OTHERS
(AG2004/8175)
Victorian Local Authorities Award 2001

MELBOURNE

2.07PM, THURSDAY, 17 FEBRUARY 2005

PN1

MR S WILSON: I appear on behalf of VECCI in both matters and I have
MR P O'BRIEN for the Melton Shire matter.

PN2

MR B MEGENNIS: I appear for the Australian Nursing Federation.

PN3

MR R RANKIN: I appear on behalf of the Australian Services Union, I will be appearing in both matters, the Melton and Moira, and MR B MILLER will be appearing in the Melton Shire matter.

PN4

MS J BAULCH: I appear on behalf of APESMA.

PN5

THE COMMISSIONER: Yes, you are going to run me through it Mr Wilson?

PN6

MR WILSON: Yes, thank you, Commissioner. Commissioner, this matter was before you last year and well, I am not sure that it got a hearing, but in any event you did ask for written submissions, Commissioner, and hopefully you have received those submissions.

PN7

THE COMMISSIONER: Yes.

PN8

MR WILSON: I trust that they resolve any issues that were to do with the Electrolux decision, Commissioner.

PN9

THE COMMISSIONER: Yes.

PN10

MR WILSON: And if that is indeed the case I would say that we would rely on the statutory declaration of Gavin Cattor who is the CEO at the Shire of Melton, and ask that the agreement be certified. There is one minor matter that is declared in the statutory declaration in terms of a decrease in the award compared to the award, Commissioner.

PN11

THE COMMISSIONER: Yes.

PN12

MR WILSON: But we say that that is by far outweighed by the benefits of the agreement, particularly at clause 13 which is the quantum and timing, clause 15 which reflects an end of ban payment, clause 16 which relates to work and family responsibilities and there are a number of other clauses that are way in excess of the award, Commissioner, and just to give you a brief overview, the salary or the wage rates at all levels are between $3000 and $5000 in excess of what the award stipulates.

PN13

THE COMMISSIONER: Yes.

PN14

MR WILSON: So we would believe that under any measurement, Commissioner, it would pass the no disadvantage test.

PN15

THE COMMISSIONER: Yes good, thank you . Submissions from the unions, Mr Megennis, anything further from you?

PN16

MR MEGENNIS: Thank you Commissioner. The ANF supports the submissions made by Mr Wilson this afternoon and similarly relies upon the statutory declarations as provided by the union in relation to this matter and we seek the Commission's approval to have the agreement certified on today's date.

PN17

THE COMMISSIONER: Yes, thanks very much. Mr. Rankin?

PN18

MR RANKIN: If it please the Commission, we would similarly rely on our statutory declaration and also the witness submissions in relation to those matters where there needed clarification in relation to the Electrolux decision and we would support Mr Wilson's submissions in relation to the no disadvantage test and seek that the agreement be certified from today's date.

PN19

THE COMMISSIONER: Yes thank you. Yes, Ms Baulch?

PN20

MS BAULCH: Yes thank you, Commissioner. Yes, we support the submissions of Mr Wilson in relation to this matter and rely on the statutory declaration of Mr Jeffery Argus and seek certification of the agreement from today's date. Thank you sir.

PN21

THE COMMISSIONER: Yes thank you. I am satisfied on the basis of the written submissions and the submissions made before that the Moira Shire Council Enterprise Bargaining Agreement No 4 2004 and 2007 meets all the relevant statutory requirements for certification. I note that the term of the agreement does not exceed three years. As set out in clause 6, there is an appropriate dispute resolution procedure. The agreement appears to provide some significant advantages over the award, noting particularly the provisions of clause 13 and I note the submissions in regard to the various concerns that I have flagged with regard to the flow-on from the High Court's decision in Electrolux. I am satisfied on the basis of those submissions that I should certify this agreement.

PN22

I note that I consider the right of entry clause at clause 11 to be a very borderline provision and I have flagged in a series of agreements that I rejected in a decision last Friday in relation to the AMIEU the concerns that I have about the width of rights of entry clauses, and the fact that it really would be better for rights of entry clauses to more clearly pertain to the relationship between employer and employee. However I am satisfied, as I say, on balance that the right of entry clause in this agreement does comply with provisions of Section 170LI of the Act, particularly bearing in mind Vice President Ross' decision in Ballantyne, and accordingly I do certify this agreement today 17 February 2005. I thank the parties for their submission.

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