C2005/1997, Transcript of Proceedings [2005] AIRCTrans 754 (29 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10911

COMMISSIONER GRAINGER

C2005/1997

s.170LW - application for settlement of dispute (certification of agreement)

Australian Municipal, Administrative, Clerical and Services Union
and
Brimbank City Council Association of Professional Engineers, Scientists and Managers, Australia, The
(C2005/1997)
Brimbank City Council Enterprise Agreement No. 4 (2004-2007)

MELBOURNE

10.13AM, WEDNESDAY, 16 MARCH 2005

PN1

MR B MILLER: I appear on behalf of the Australian Services Union together with MS J NUTTALL.

PN2

MR S WILSON: I appear for the Brimbank City Council. With me I have
MR B DOWLING, human resources manager.

PN3

THE COMMISSIONER: Yes, thank you. Yes, Mr Miller, why don't you tell me about it.

PN4

MR MILLER: Thank you, Commissioner. Commissioner, the matter before you today goes to the implementation of a nine day fortnight roster for corporate services, predominantly procurement and tendering, financial services, rating revenue valuation. In accordance with clause 21 Work Arrangements of the Brimbank City Council Enterprise Agreement Number 4, 2004/2007 - - -

PN5

THE COMMISSIONER: Do you have a copy of that agreement, Mr Wilson, to hand up?

PN6

MR MILLER: I have a spare one, Commissioner.

PN7

THE COMMISSIONER: Yes. Thank you very much. Yes, go on.

PN8

MR MILLER: 21 Work Arrangements, Commissioner, in which it allows a review of rostered days off arrangements during the life of the agreement. Commissioner, the aforementioned group has developed workable rosters which have been rejected by the corporate services general manager, Ms Doris Cunningham on her return from annual leave. It should be noted that internal discussions held with the groups and their direct managers had no major objection to trialing the operation of a nine day fortnight roster as proposed, however as indicated on Ms Cunningham's return form annual leave, the trial proposal went out the door.

PN9

Further discussions with Ms Cunningham, in conjunction with the consultative committee, failed to see any shift in her view that a nine day roster was not viable. The view expressed was that it would see an increased workload on direct managers. Commissioner, we say this is not the case, as at present when staff go on annual leave, sick leave, long service leave and when staff go on extended leave, no such concern has ever been raised, and even when replacement staff have not been provided. Further, there was a reference to the snowball effect and we are still at a loss as to what is meant by that, at this point in time Commissioner.

PN10

It is apparent that the general manager has a personal opposition to the operation of a nine day fortnight. In all instances to date, an amicable resolve has been achieved to implement nine day fortnight rosters and where there is any lingering doubt, trials have been implemented. Commissioner, 72 per cent of all banded employees at the City of Brimbank currently enjoy a nine day fortnight. The remaining 38 per cent, apart from those represented in today's hearing, are predominantly permanent part time employees who would not be eligible for a roster or people who work task finish arrangements, again would not be eligible to work a roster system.

PN11

Commissioner, it should be noted also that of the represented groups, in procurement and tendering, there are four people who work in that area. Three currently enjoy a nine day fortnight and one doesn't. In financial services, there are eight people working in that area and currently, six of those eight people enjoy a nine day fortnight. In rating and revenue, there are again, eight people of which six enjoy a nine day fortnight.

PN12

Commissioner, as indicated to date, we say Ms Cunningham has not given satisfactory explanations or evidence to support her claim and we look forward to hearing from her today. In relation to the disputed rosters, we are not seeking the court to make a determination on them, but rather determine we be given the opportunity to trial our proposals and prove they are capable of operation without dimidiation of service delivery.

PN13

Commissioner, as the matter is complex, we have in attendance representative membership from the workgroups in question, who would be able to rebut any argument put forward by Ms Cunningham. Accordingly, we request the parties adjourn into conference under your auspice. If the Commission pleases.

PN14

THE COMMISSIONER: Yes. Thank you, Mr Miller. Mr Miller, don't sit down for a moment. Just before I hear from Mr Wilson, if I could just confirm my understanding correctly, there is a current set of work arrangements - a set of work arrangements which were current at the time this agreement come into force on 18 October 2004 and the consultative committee has reviewed some of those working arrangements in accordance with clause 21.1 and is seeking to introduce changes. Is that right?

PN15

MR MILLER: That is correct, Commissioner. The agreement was that the workgroups would develop proposed rosters. The consultative committee would overview them, present them to management and management then had to rebut and prove the proposed rosters were not viable.

PN16

THE COMMISSIONER: Yes. And the consultative committee is referred to in clause 38 of the agreement, under which it talks about its committees cooperatively and positively increasing the efficiency of production meetings. It doesn't otherwise talk about how the decision is going to be reached or what the mechanism is for the output from the consultative committee. Is that identified somewhere else?

PN17

MR MILLER: It would be in clause 43 dispute resolution procedures, Commissioner, which we have gone through. There have been meetings with the various groups, with the managers, again with the GM through the consultative committee, and unfortunately we have been unable to reach agreement and we have had to call upon your assistance.

PN18

THE COMMISSIONER: Yes, all right. If we can go back to clause 21 again, just so that I am understanding all of this. The areas that you are talking about are procurement and tendering, financial services and rating revenues/valuation services. Is that right?

PN19

MR MILLER: That is correct, Commissioner, yes.

PN20

THE COMMISSIONER: Now I see that rating and revenue services is the second last box in 21.3. That says:

PN21

Former Keilor staff are eligible to a 9 day fortnight.

PN22

Where else in these boxes, do those areas of procurement and tendering, financial services and rating revenue/valuation services fit or are they not in there? Are they all incorporated - - -

PN23

MR MILLER: Yes, Commissioner, they all come under corporate services. They are departments within corporate service.

PN24

THE COMMISSIONER: Right. So in relation to rating and revenue services, the former Keilor staff are for some reason, were eligible anyway for a nine day fortnight

PN25

MR MILLER: Yes, and came across with amalgamation - - -

PN26

THE COMMISSIONER: So are there any other rating and revenue services who are not former Keilor staff?

PN27

MR MILLER: Yes. Those employees who are employed by the City of Sunshine prior to amalgamation.

PN28

THE COMMISSIONER: Right, okay. Thank you. What sort of numbers? So you have got - the situation is you have got some people from one former council who are on a 19 day roster and some who are on nine day rosters, is that right?

PN29

MR MILLER: That is correct, Commissioner. And predominantly the employees in the three workgroups in question are working a nine day fortnight.

PN30

THE COMMISSIONER: Yes, all right. And in regard to procurement and tendering and financial services, they are all in corporate and other services, is that right, who at this stage, the agreement provides a 19 day month, except for customer service officers, who are on a nine day fortnight. Is that right?

PN31

MR MILLER: Correct, Commissioner.

PN32

THE COMMISSIONER: And what the consultative committee is proposing is to bring all of those corporate service staff, people into line with the customer service officers - - -

PN33

MR MILLER: As a 9 day fortnight, yes Commissioner. In total, it is five employees out of 30.

PN34

THE COMMISSIONER: It is how many?

PN35

MR MILLER: It is something like five employees that do not enjoy a 9 day fortnight out of 30.

PN36

THE COMMISSIONER: Out of 30, so there is 25 who are on a nine day fortnight and about five who are not.

PN37

MR MILLER: In round figures, yes Commissioner. Yes, Commissioner.

PN38

THE COMMISSIONER: Okay. Just run me through the numbers again, will you. Thanks very much, Mr Miller.

PN39

MR MILLER: In procurement and tendering, there are four employees who are eligible to work a nine day fortnight.

PN40

THE COMMISSIONER: Already eligible?

PN41

MR MILLER: Already. Four that are eligible and three do work it, so there is only one in that area that is not enjoying a nine day fortnight.

PN42

THE COMMISSIONER: And who in that area is on the 19 day roster?

PN43

MR MILLER: One employee, Commissioner.

PN44

THE COMMISSIONER: Yes, all right. What is the next area? Financial services?

PN45

MR MILLER: Financial services. There are eight people employed in financial services in that area. Six of them currently enjoy a nine day fortnight.

PN46

THE COMMISSIONER: Six do?

PN47

MR MILLER: And two do not. They are on a 19 day month.

PN48

THE COMMISSIONER: Okay. And rating revenue/valuation services, what is the story?

PN49

MR MILLER: Same figures again, there Commissioner. Six enjoying a 9 day fortnight, two on a 19 day month.

PN50

THE COMMISSIONER: All right. So what the consultative committee is proposing is - sorry, Mr Wilson, I am just wanting to understand Mr Miller's argument, I will come to you. What the consultative committee is proposing, is that the minority who are currently on a 19 day roster, be brought into line with a fairly significant majority who are on a nine day roster. Is that correct?

PN51

MR MILLER: That is correct, Commissioner. Yes.

PN52

THE COMMISSIONER: There is nothing more?

PN53

MR MILLER: No, nothing more. Thank you Commissioner.

PN54

THE COMMISSIONER: Thank you. Mr Wilson I can hear from you.

PN55

MR WILSON: Yes. Thank you Commissioner. Commissioner, I guess in terms of process, the EB says what the EB says, that the hours will be reviewed and we say that has happened. The ASU is not happy with the outcome in the sense that council's view in the corporate services area is that there should not be any further advance, if that is the right sort of terminology, of the nine day fortnight. People who effectively have the nine day fortnight, as I am advised Commissioner, it is mainly a historical matter, as Mr Miller outlined, people coming from other municipalities into the now City of Brimbank.

PN56

Commissioner, we would only have a very slight variation in terms of the numbers that Mr Miller set out to you there. We would say in financial services, I think Mr Miller indicated there were six people on a nine day fortnight and two on a 19 day month. We would say it is five and three, but I am not sure that a great deal hangs on that number, anyway, Commissioner.

PN57

THE COMMISSIONER: You wouldn't disagree, though, that the figures are that they are predominantly, at the outset of the agreement, are people on a nine day roster, and probably about one third are on a 19 day roster.

PN58

MR WILSON: No. On our figures, Commissioner, it is 21 staff in total, 14 on a nine day fortnight, seven on a 19 day month, so it is exactly two thirds. We don't have any argument with the figures as such, but we say however, Commissioner, is that there are specific reasons why council believes that a nine day fortnight is not appropriate, it is not appropriate to extend the nine day fortnight into these areas.

PN59

THE COMMISSIONER: But Mr Wilson, is the council's argument really that it doesn't want - the council's position is that it wants to head these areas in the direction of a 19 day roster, away from the nine day roster. Is that right?

PN60

MR WILSON: I am not sure that I would put it that strongly, Commissioner. I mean, there was certainly as I understand it in the discussions leading up to the EB that was certified back in October last year, it was council's view that a 19 day month would be more appropriate, but there is no intention to move people away from nine day fortnights.

PN61

THE COMMISSIONER: No, but as people leave, is there an intention that those who come on will come on on a 19 day roster, rather than a nine day roster?

PN62

MR WILSON: Yes, that is correct.

PN63

THE COMMISSIONER: That's right.

PN64

MR WILSON: We say that the people who already have a nine day fortnight, effectively it was part of their contract of employment, for want of better terminology. Subsequently, the people who have come into that area have been employed on a 19 day month basis, so we would say that in future, we would see that people would be employed on a 19 day month. Commissioner, I think - we do have, as far as we are concerned, arguments to put to you why this 19 day month shouldn't be implemented and indeed trialed, but I think perhaps a conference might be appropriate at this stage, to perhaps just see where it takes us.

PN65

THE COMMISSIONER: Yes. All right, I just want to understand further from you, Mr Wilson. With regard to the consultative committee process, which is not very well set out in the agreement at all, Mr Miller says that really where you go out of the consultative committee if agreement is not reached, is clause 43 of dispute resolution. Is that your understanding of the situation?

PN66

MR WILSON: We wouldn't argue with that as a process, Commissioner. No, I think that is quite reasonable.

PN67

THE COMMISSIONER: All right. I just want to understand, there is not an argument about then?

PN68

MR WILSON: No.

PN69

THE COMMISSIONER: There is no argument that if the consultative committee can't reach agreement, then one of the parties can implement the dispute settlement procedures in order to seek a settlement of it, so there is no argument that the matters properly before the Commission - - -

PN70

MR WILSON: We are not suggesting a jurisdiction at all, Commissioner.

PN71

THE COMMISSIONER: No, okay. All right, that is fine. Thank you very much. Nothing to respond to that Mr Miller?

PN72

MR MILLER: Just one comment, if I may Commissioner. I would just like to confirm that we have correspondence from the chief executive officer indicating that that move to employ new employees on a 19 day month, thus phasing out the existing nine day fortnights won't happen, so we have written correspondence to that effect.

PN73

THE COMMISSIONER: Would you like to tender that?

PN74

MR MILLER: Unfortunately, I don't have a copy of it with me, Commissioner.

PN75

THE COMMISSIONER: Who is that letter from - - -

PN76

MR MILLER: It is signed by the chief executive officer.

PN77

THE COMMISSIONER: Who is that?

PN78

MR MILLER: Marilyn Duncan.

PN79

THE COMMISSIONER: Yes, how long ago was that sent out?

PN80

MR MILLER: It was part of the discussions and commitment we had when we were in the enterprise bargaining negotiations, because we were in dispute over the implementation of a nine day fortnight as part of those negotiations.

PN81

THE COMMISSIONER: So this is before October 2004? It was before certification?

PN82

MR MILLER: Yes, Commissioner.

PN83

THE COMMISSIONER: So copies before that don't need a - - -

PN84

MR MILLER: Yes, but there were commitments given that would be honored, even though it was prior to - - -

PN85

THE COMMISSIONER: No that's fine. Just wanting to - so we all sing out at the same, Mr Miller. Mr Wilson, can you just check on that?

PN86

MR WILSON: Yes, if I could just - as I am advised, Commissioner, that was an undertaking from the CO that while this matter was in dispute, that there wouldn't be any changes and anybody who came into the environment would replace, on whatever basis the person was that they are replaced, whilst this matter was in dispute. I don't believe there was an overall commitment to say we will maintain people on a nine day fortnight. It was whilst this matter was in dispute, Commissioner.

PN87

THE COMMISSIONER: Well, that would very well much depend on the wording. Since the letter is not here, I am not proposing to enter into it. If the matter was to go further, beyond today, that matter might become a matter of some materiality as to what degree of binding force it had and what its scope might be, so you just might bear that in mind, in future.

PN88

MR MILLER: I am comfortable with that. Thank you Commissioner.

PN89

THE COMMISSIONER: Yes, thanks very much. Look the parties have both requested me to adjourn. I think at this stage, Mr Miller if you don't mind, I would like to actually talk to VPO, to Mr Rawson at the council first, so if you could just pop out with your team. Hopefully, we will find somewhere comfortable to sit out there. I don't intend to be very long.

PN90

MR MILLER: Thank you, Commissioner.

<SHORT ADJOURNMENT [10.31AM]
<RESUMED [11.24AM]

PN91

THE COMMISSIONER: Yes. Thank you very much, Mr Miller and Mr Wilson. I have had the opportunity to discuss this matter with both parties in conference and my view is the best and most appropriate way forward of this matter is not to be the subject of formal arbitration in Commission. It is to make the following recommendation to the parties.

PN92

Firstly, the ASU prepare a detailed proposal on the issue of the trial of a nine day fortnight roster to be put to the council and which is to include the addressing of costing issues, issues to do with the duration of trial and any other implications that are perceived to exist with regard to a trial, and it is to put that proposal to council by Friday, 1 April 2005 by close of business. The council should give serious consideration to such proposal and should provide a detailed written response addressing all of the issues which are raised and which address issues of costing and duration of any trial.

PN93

The response to that should be provided by the chief executive of the council to the union by the close of business on Friday 15 April, which means that it will be in before the next consultative committee meeting which is scheduled for Tuesday, 19 April 2005. I understand that there is an issue about time for staff to participate in discussion. I understand that there are six staff who need to be involved in these discussions. I would have thought that an hour a week for those staff over the next fortnight, that is a total of two hours, would be sufficient for those staff to be involved in these discussions. I understand that that may have some work implications and I would ask the council to be understanding about it, and that staff not be unreasonably refused time to develop the submissions, considering the significance of the issue.

PN94

Mr Miller, can I just ask, is that an acceptable recommendation to the council?

PN95

MR MILLER: Yes, thank you Commissioner.

PN96

THE COMMISSIONER: Yes, thank you very much. Yes, Mr Wilson?

PN97

MR WILSON: Yes, I believe that is satisfactory, Commissioner. Can I assume transcript will be ordered?

PN98

THE COMMISSIONER: Yes, I will order the transcript. Thank you very much. Of course, at the end of that process, it is clear that if the dispute remains, the only direction that the matter can then go in is for arbitration and so either party can then after 19 April seek re-listing of the matter for directions for arbitration. Thank you very much. And in that process, you should address, if you need to, if you have any section 105 concerns at that stage, then you should address that at that point in the process. I thank the parties for their assistance today. I now adjourn.

<ADJOURNED INDEFINITELY [11.27AM]