AG2005/8745, Transcript of Proceedings [2006] AIRCTrans 127 (2 February 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14002-1

SENIOR DEPUTY PRESIDENT DRAKE

AG2005/8745

APPLICATION BY AUSTRALIAN WEALTH MANAGEMENT LIMITED
s.170LK - Agreement with employees (Division 2)
(AG2005/8745)

SYDNEY

2.37PM, WEDNESDAY, 18 JANUARY 2006

PN1

MR A UMANSKY: I appear with MR R CAROLAN. He is the head of Human Resources for the applicant, Australian Wealth Management Limited. The application your Honour was filed on 14 December and I trust that you have copies of the application and the statutory declaration as well as the agreement that went with the application.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3

MR UMANSKY: Mr Carolan swore the statutory declaration and is more than happy to go through any detail in that and any background that you may wish to hear on in relation to the negotiations and the process for making the agreement. I should say at the outset that this is the third agreement involving the company. The previous two agreements were under another name. Nevertheless it is the third certified agreement before the Commission. Your Honour, just by way of very brief points I note that the – attached to the statutory declaration is a brief examination of the no disadvantage test and also the notice of intention to make an agreement that was provided to employees.

PN4

The results of the ballot are included in summary form and we have a copy of the actual paper from the organisation that conducted the ballot process. An independent organisation by the name of Secure Vote. I would be happy to hand that up for the file if necessary.

PN5

THE SENIOR DEPUTY PRESIDENT: If you wish. ..... Mr Umansky, I am happy to have a look at it. Thank you.

PN6

MR UMANSKY: There is one correction that I would like to make, your Honour, to the declaration. If I can take you to item 6.7.2. That deals with among other things the dispute settlement procedure. The declaration says that the agreement allows the Commission to resolve disputes over the application of the agreement. However the dispute settlement procedure in the agreement which is clause 8 does not go that far. You will note, your Honour, that in clause 8.5 the agreement allows – I should say correction clause 8.4 – the agreement certainly allows the Commission to – and provides a role for the Commission to conciliate but that is the extent of the specified role of the Commission. So if I can correct for the record - - -

PN7

THE SENIOR DEPUTY PRESIDENT: What is the award entitlement – what is the award dispute resolution clause?

PN8

MR UMANSKY: It's clause 28 of the award. If I take you to sub clause 28.5 it allows the – the award allows the Commission to decide – make a final decision in relation to disputes arising under the – well disputes between the parties. I should - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Is that difference made clear to the employees? It is arguable that removing a free resolution of dispute mechanism so that the alternative is filing in a court where there is costs involved.

PN10

MR UMANSKY: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Is a disadvantage that needs explanation.

PN12

MR UMANSKY: Yes your Honour. Perhaps Mr Carolan can address - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Was that difference explained?

PN14

MR CAROLAN: In fact that wasn't a change that was brought in, in this one so perhaps it is an oversight in that the original certified agreement that was approved three years ago had that change in it so I hadn't checked that one. So there was no intent to disadvantage.

PN15

MR UMANSKY: Your Honour I should - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Can we just go off the record for a moment. Thank you.

<OFF THE RECORD

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Umansky I am happy to certify the agreement except that I note that there is a difference between the dispute resolution clause in the award and the dispute resolution clause in the agreement which doesn't necessarily seem to be a detriment that has been explained to the employees. Would you make a submission to me about that matter.

PN18

MR UMANSKY: Your Honour certainly. As I indicated this is the third agreement between the parties and I should say that it was an oversight that the issue was not explained. Nevertheless the company is prepared to make an undertaking that it will allow the Commission to resolve issues in accordance with the relevant dispute settlement procedure set out in the underlaying award. That is the Trustee Industry Award. For the record I note that the relevant clause in that award is clause 28.5.

PN19

The company also undertakes that in advising employees of the outcome of these proceedings that it will notify them that that is the undertaking that has been given by the company and on that basis we put the agreement to you for – and submit that it meets the requirements for certification. If the Commission pleases.

PN20

THE SENIOR DEPUTY PRESIDENT: I better certify the agreement and I note the company's undertaking and rely on it in making the certification. I will order a copy of the transcript and congratulate the parties on the agreement otherwise. The Commission is adjourned.

<ADJOURNED INDEFINITELY [2.49PM]