AG2006/3485, Transcript of Proceedings [2006] AIRCTrans 474 (28 March 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14490-1

COMMISSIONER SMITH

AG2006/3485

APPLICATION BY STATE OF VICTORIA & CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION-SPSF GROUP, VICTORIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/3485)

MELBOURNE

9.00AM, TUESDAY, 14 MARCH 2006

PN1

MR D EYRE-WALKER: I appear for the State of Victoria.

PN2

MR W TOWNSEND: I appear for the Community and Public Sector Union.

PN3

THE COMMISSIONER: Thanks Mr Townsend. Mr Eyre-Walker?

PN4

MR EYRE-WALKER: Commissioner, there are two applications before you today.

PN5

THE COMMISSIONER: Yes.

PN6

MR EYRE-WALKER: The first is an application by the State of Victoria under section 170MG of the Workplace Relations Act for the termination of the Victorian Public Service Agreement 2004. The second is an application under Division 2 of Part VIB of the Act for certification of a section 170LJ agreement between the State of Victoria and the Community and Public Sector Union, to be known as the Victorian Public Service Agreement 2006. Form R37 was filed with the Victorian Registry on Friday 10 March.

PN7

Also filed was a relevant statutory declaration together with the signed termination agreement which consists of a number of counterparts. Forms R27 and R28 were also filed with the Victorian Registry on Friday together with copies of the new agreement. The statutory declaration is in accordance with Form R28 and sets out relevant details relating to the agreements compliance with the provisions of the Act. Commissioner, the termination of the Victorian Public Service Agreement 2004, which nominally expires on 1 June 2007, was approved by an overwhelming majority of employees who cast a ballot vote.

PN8

The statutory declaration shows that 93 per cent of ballot votes favoured termination. Commissioner, the new agreement covers more than 28 and a half thousand non executive public servants except for the operation of distinct government superannuation office, the operational areas of qualified nursing subject to the nurses Department of Human Services Agreement 2004, employees eligible to be members of the Health Services Union of Australia and employees covered by the Australian Workers' Union Field Staff Agreement 2002. The agreement, Commissioner, is in two sections.

PN9

Section 1 contains those conditions of employment which the parties have agreed are core conditions throughout the Victorian Public Service. Section 2 contains specific appendices which set out agency specific conditions of employment or, specific conditions to apply to ministerial focus. The agreement provides for total salary increases of 9 per cent, made up of 3 per cent from 1 October 2006, 3 per cent from 1 October 2007 and a further 3 per cent from 1 October 2008. It also provides for progression payments.

PN10

Commissioner, the parties decided to terminate the 2004 agreement and enter into a new agreement following the decision of the Federal Court of Australia on 9 September 2005 involving the Finance Sector Union and the Commonwealth Bank. This decision is commonly known as the Comsec decision. This decision raised doubts about the enforceability of the Victorian Public Service Agreement 2004. This doubt arose, Commissioner, as a result of clauses in the agreement that allowed some terms and conditions to be further varied during the life of the agreement.

PN11

In particular, the agreement allowed the parties to enter into what became known as clause 9 agency agreements to provide for agency specific conditions. This clause, Commissioner, has not been included in the new agreement. The agreement also contained clauses which had the effect that the adaptive classification structures subsequently agreed or arbitrated after certification on 2 June 2004 became part of the agreement. With the considerable help of you, Commissioner, these structures have since been finalised. They are now all included in the new agreement.

PN12

Commissioner, the parties were also keen to ensure that the uncertainties arising from the Federal governments Work Choices legislation did not add to this uncertainty. This includes the expected limitations on what can be included in agreements freely negotiated with other parties. The new agreement, Commissioner, contains many of the conditions of employment provided for in the 2004 agreement. Besides the changes spelt out earlier Commissioner, it also includes the following changes. Salary related allowances moved by the same quantum as the salary increases.

PN13

Adoption leave has been brought into line with maternity leave with a pay component being 14 weeks. Provision has been made for salary sacrifice into the following benefit schemes with arrangements complying with state legislation, and the parties have agreed that negotiations will commence for a new agreement no less than three months prior to the nominal expiration of 1 March 2009. Commissioner, technical changes have been made to a number of other clauses to ensure that the agreement only relates to the employer/employee relationship and therefore complies with the High Court's Electrolux case.

PN14

Of particular importance, the agreement now only authorises deductions from salary for forwarding to superannuation funds. The right of entry clause has been changed so that access to the workplace is for the purpose of ensuring compliance with the agreement. The formal agreement that is the subject of this application would, if certified today, formally operate from today although the parties have agreed that the revised arrangements would operate from 1 March 2006.

PN15

Commissioner, we submit that the agreement before you today satisfies the requirements of the Act that on balance there must not be a reduction in the overall terms and conditions under the relevant awards or laws. In the present situation the assessment is against the Public Service Award 2005. Detailed information relating to the termination of the 2004 agreement and the new 2006 agreement was provided to staff to be covered by the new agreement at least 14 days before the voting period commenced.

PN16

The detailed explanation included hot links to the Industrial Relations Victoria and the CPSU websites so the staff could access the new agreement. The detailed information for staff was written in a way all employees could be expected to understand including the special groups identified by the Act and listed in Form R28. The Victorian Electoral Commission conducted a secret postal vote last week.

PN17

Nearly 38 per cent of staff voted, with 93 per cent of valid votes being in favour of accepting the agreement. In summary Commissioner, we submit that the requirements of the Workplace Relations Act have been complied with and that as an overwhelming majority of valid votes passed were in favour of the agreement it should be certified pursuant to section 170LT of the Act. Finally, the State of Victoria would like to place on record its appreciation of the Commission calling this matter on at short notice to determine these applications. If the Commission pleases.

PN18

THE COMMISSIONER: Thanks Mr Eyre-Walker. Mr Townsend?

PN19

MR TOWNSEND: Commissioner, CPSU supports the submissions of the State of Victoria in this matter and I too, would like to place on record the union's appreciation for this matter coming on. Thank you very much Commissioner.

PN20

THE COMMISSIONER: Thanks Mr Townsend. I will deal firstly with the application pursuant to section 170MG of the Act to terminate the Victorian Public Service Agreement 2004. The application has been made by both the State of - by the State of Victoria and I have been provided with a statutory declaration indicating that there was a vote taken on whether or not the agreement should be terminated. having regard to the submissions of Mr Eyre-Walker, I am satisfied that a valid majority of employees whose employment is subject to the agreement genuinely approved its termination. Accordingly, I will terminate the agreement as of today.

PN21

The second application is an application pursuant to Part VIB Division 2 section 170LJ of the Act to certify an agreement to be known as the Victorian Public Service Agreement 2006. Having heard from the parties and having read the statutory declarations filed, I am satisfied that the union has at least one member employed in the business to which the agreement relates and is therefore entitled to represent the industrial interests of that member - of those members. I am also satisfied as to the following.

PN22

Firstly, the agreement passes the no disadvantage test. Secondly, the agreement was made in accordance with section 170LJ of the Act and that a valid majority of persons who was employed at the time whose employment would be the subject of the agreement, genuinely approved the agreement. I am satisfied that there was a proper explanation of the terms of the agreement. I am also satisfied that the agreement includes procedures for preventing and settling disputes between the employer and the employees whose employment would be the subject of the agreement.

PN23

Finally, I am satisfied that the agreement specifies a nominal expiry date which is not more than three years after the date on which the agreement will come into operation. It follows that I am satisfied that there are no reasons as set out in section 170LU of the Act as to why I should refuse to certify the agreement. Accordingly the agreement will be certified with effect from today and it will operate in accordance with its terms. Thank you gentlemen. The matter is adjourned.

<ADJOURNED INDEFINITELY [9.11AM]