AG2006/2349, Transcript of Proceedings [2006] AIRCTrans 570 (6 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14601-1

COMMISSIONER DANGERFIELD

AG2006/2349

APPLICATION BY CHUBB SECURITY AUSTRALIA PTY LTD & LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION-SOUTH AUSTRALIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/2349)

ADELAIDE

9.56AM, WEDNESDAY, 22 MARCH 2006

PN1

MR R CAIRNEY: I am from the South Australian Employer's Chamber of Commerce and Industry Incorporated, trading as Business SA and with me today sir, I have MR I PATRICK from the company.

PN2

MS R BUCKLER: I appear for the Liquor, Hospitality, and Miscellaneous Union.

PN3

THE COMMISSIONER: Thank you. Mr Cairney?

PN4

MR CAIRNEY: Thank you, Commissioner. Commissioner, as is obvious from the application, we are seeking today the certification of what is known as the Chubb Security Australia Pty Ltd (Chubb Protective Services)/ Liquor Hospitality and Miscellaneous Union Aviation Security Certified Agreement 2005 Adelaide Airport. Commissioner, as I understand you are somewhat familiar with the current agreement in that I think you conducted some conciliation some time ago as part of the renegotiation of this new agreement. I'll be brief with my submissions Commissioner, unless you have any questions of me.

PN5

You'll note from page 4, duration of the agreement, the parties are seeking that the agreement, if certified today, comes into operation today with a nominal life expiring on 31 October 2008. It contains a disputes resolution procedure for the settlement of disputes. You'll also note that the agreement also makes reference at Appendix 4 to the relationship to the award and, in fact, nominates a number of clauses that will operate in conjunction with the agreement, but obviously if there is any inconsistency the agreement will take precedent over those award clauses. I don't really have any other submissions other than to say that the parties submit that the agreement complies with all the requirements of the Workplace Relations Act 1996.

PN6

THE COMMISSIONER: Yes, thank you, Mr Cairney. Ms Buckler?

PN7

MS BUCKLER: Thank you, Commissioner. Just noting, Appendix 4, relationship to the award, of course I understand that the Security Officers' Award is due for a finalisation of a Section 99 review so all those clause numbers will change unfortunately, but hopefully they'll be able to be found somewhere contained within the award. After that time they'll just move to a different numbering system, that's the only thing.

PN8

THE COMMISSIONER: Yes, I'm not sure whether some of them may change. Look, I think given that, I mean, I think we're looking at the Security Officers' Award on Friday, that being the case by the time that we get the approval paperwork out for this it will be next week anyway.

PN9

MS BUCKLER: Yes.

PN10

THE COMMISSIONER: So if the parties want to provide a replacement Appendix 4 at pages 14 and 15 with the correct numbers, I'd be happy with that. I mean that's no big deal.

PN11

MS BUCKLER: I think it might just make it easier for referencing.

PN12

THE COMMISSIONER: It would, I think for the future it would purely be in - yes. If you want to do that that's fine. If you don't want to do it, I don't think it matters all that much.

PN13

MS BUCKLER: No, I don’t think has any difficulties with that.

PN14

THE COMMISSIONER: If you've got a replacement page there for Appendix 4 we can put it on the file.

PN15

MS BUCKLER: Yes. Commissioner, the union has filed a statutory declaration with respect to this matter. We also support the submissions made by Mr Cairney and we would also like to record the union's thanks for your assistance in the conciliation of this matter prior to and at Christmas time. On that basis we support the approval of the agreement today.

PN16

THE COMMISSIONER: Yes, thank you for that. Can I just say to each of you and there's no big deal here, but I'll just point out in regard to the statutory declarations, they both follow a common format here, but neither of the statutory declarations answered 7.5 and 7.6 and the fact that you've correctly indicated in 7.3 and 7.4 that there are some reductions in award conditions means that technically, 7.5 and 7.6 should have gone on to list those clauses that effectively balance out the provisions that are less favourable than the award. However, look, this isn't a big deal because having spent many hours with the parties before Christmas last year, I am aware of the many swings and roundabouts in the agreement and I am satisfied, having regard to the wages and various other clauses and my fairly detailed knowledge of the background of all this, that the no disadvantage test has indeed been met.

PN17

That of course is the purpose of 7.5 and 7.6 and the statutory declaration is just to assist the Commission in that. So look, I just point that out but there's no need to make any reference to 7.5 and 7.6 unless either of you want to make any comments on the record about that. The only other thing I'd point out in regard to the statutory declarations, is that at 6.6 in both, I note that earlier there are some 195 employees, I think, covered by this agreement and in the answers to 6.3, 162 of those are part time employees. The point of question 6.6, of course, is for the Commission to be satisfied that all the categories of employees were adequately catered for and had the agreement explained to them and had a genuine opportunity to vote.

PN18

Unfortunately, I think with the way 6.6 is written up with the example it gives in brackets it always talks about, for example, where the persons include women, persons from a non-English-speaking background, or young persons, and people usually address any answer in regard to English speaking problems but of course the issue here is part time employees and, of course, the Commission in looking at this is saying, 195 employees, 162 of which are part time, well I just hope all the part timers had full and adequate opportunity to look at the agreement. Now, I'm pretty sure that was the case, but that's the purpose of that question. I don't know, again, if there's any comment that either of you want to make in regard to that.

PN19

MR CAIRNEY: My understanding from the company is that the figure referred to of 162, they almost work full time hours. So we're not talking about people who may be just there for a shift or two each week. My understanding is that they work very regular part time hours and had ample opportunity in the 14 days after receiving the agreement, to be informed of the content of the agreement and to obviously ask for any explanation.

PN20

THE COMMISSIONER: That's my recollection anyway from the proceeding we had prior to Christmas.

PN21

MR CAIRNEY: Yes.

PN22

THE COMMISSIONER: And the union was heavily involved in this at every point. I mean, I don't have an issue with it but I just thought I'd raise it. It'll probably be the last time I'll get to raise it, the last time I'll have proceedings of this nature. It might be my last certified agreement, I'm not sure.

PN23

MS BUCKLER: It could be mine too, Commissioner.

PN24

THE COMMISSIONER: Just another thing, in regard to the agreement itself I just noted, you've covered it Mr Cairney, clause 6 of the agreement, duration and negotiation of agreement, strangely enough I note there is no specific provision in clause 6 of the agreement relating to operative date, but in the absence of anything as you've indicated, the operative date will be on and from today, which will be the date of certification. So I just want to make that clear. That seems to be fine and of course it refers to wage increases and whatever that I think predate this.

PN25

MR CAIRNEY: I don't know that they do.

PN26

THE COMMISSIONER: No, it doesn't does it? The wages I think operate from 1 July this year, that's right Appendix 1. Anyway the operative date will be from today. All right, I can indicate then for the record this is an application under Division 2 of Part VIB of the Act for certification of an agreement pursuant to Section 170LJ. The Commission has considered the application and the terms of the agreement to which it relates. I am satisfied that the agreement in every respect pertains to the relations of the employer and the relevant employees in their respective capacities as such and hence, complies with Section 170LI of the Act.

PN27

The application for certification is supported by statutory declarations on file of Karen Louise Carney, general manager of Chubb Security, the employer in this matter, and David Detroyer, assistant secretary of the Liquor, Hospitality, and Miscellaneous Workers' Union. Those declarations are both in order in all substantive respects. Having heard from the parties today in relation to this application to have their agreement certified, I note first of all, that the Security Officers' Award, an award of the South Australian Industrial Relations Commission, is the relevant award for the purposes of the no disadvantage test and having compared the provisions of the agreement with those of the award I am satisfied that that test has been passed.

PN28

The agreement, at clause 9 I note, includes procedures for preventing and settling disputes between the parties as required by the Act. I am satisfied on the material before me that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate having regard to their circumstances and needs. Accordingly, the Commission certifies the Chubb Security Australia Pty Ltd (Chubb Protective Services)/ Liquor Hospitality and Miscellaneous Union Aviation Security Certified Agreement 2005 Adelaide Airport, which I think is probably the longest title of any agreement that I have certified.

PN29

It will be operative from today's date 22 March 2006, and in accordance with clause 6 of the agreement, it will remain in force until 31 October 2008, the nominal expiry date. It's to be noted also for the record that certification of this agreement effectively brings to an end a bargaining period, BP2005/7260, and as is usual in these cases, the necessary documentation confirming certification will be forwarded to the parties in the next few days. Having regard to the history of the matter I congratulate the parties on their agreement and if there's nothing further for the record that concludes the hearing of the matter.

<ADJOURNED INDEFINITELY [10.08AM]