AG2010/8549, Transcript of Proceedings [2010] FWATrans 1132 (9 July 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 26559-1

COMMISSIONER ROE

AG2010/8549

s.185 - Application for approval of a single-enterprise agreement

Application by Colin Trapp and Associates
(AG2010/8549)
Colin Trapp and Associates Pty Ltd - General Conditions of Employment Agreement

(ODN AG2010/8549)
[AE878491 Print PR998358]]




Melbourne

10.14AM, FRIDAY, 11 JUNE 2010

PN1

THE COMMISSIONER: I think we have only one appearance in this matter which is Di Lund, is that correct?

PN2

MS D LUND: That’s correct, yes.

PN3

THE COMMISSIONER: You can hear us okay there Di?

PN4

MS LUND: Yes I can, thank you.

PN5

THE COMMISSIONER: Thanks for coming in for this hearing today. We have received your correspondence of 2 June in response to the correspondence that we sent in response to your application for approval of the agreement on 3 May.

PN6

MS LUND: Yes.

PN7

THE COMMISSIONER: There are still some issues of concern that we wanted to try and address today to see if we can’t get this agreement finalised. The first thing I wanted to ask you is, could you just outline for us again why it is that you have sought to have an agreement under this legislation with your employees? What is the purpose of the agreement from your point of view?

PN8

MS LUND: To be honest, the one and only reason is we do quite a lot of work with the Department of Defence, and under their tender guidelines they require us to have national code of practice compliance, which is fine, we have had that assessed by DEEWR some years ago. In their most recent tender assessments they have now started asking for us to verify that we are in fact lodging and ensuring that our agreements are in compliance with Fair Work Australia requirements. So had it not been the Department of Defence were asking us to lodge this, we probably wouldn’t.

PN9

THE COMMISSIONER: Yes, because it has been a - - -

PN10

MS LUND: It is not a regular thing I would not have thought.

PN11

THE COMMISSIONER: No, and it has been a more difficult process for you than it should have been. To be frank, I don’t think that you’re legal advisor is necessarily sufficiently expert on the issues associated with this legislation, and that is a significant problem in this case.

PN12

MS LUND: We took their advice. They purported to be experts and unfortunately we couldn’t tell.

PN13

THE COMMISSIONER: Yes. I’m just saying that from what I can see your legal advisor might be expert on the question of contracts and contracts of employment maybe, but doesn’t seem to have been familiar with the requirements of the legislation. The key problem I think is that at the moment the whole thing is phrased as an individual contract of employment, whereas the legislation is about collective agreements.

PN14

MS LUND: Yes.

PN15

THE COMMISSIONER: I’m satisfied by your response that there was a collective process whereby the workers voted on the document, so I’m satisfied that the process by which the documents agreed meets the requirements of the legislation. My concern is with the content of the actual document.

PN16

MS LUND: Right.

PN17

THE COMMISSIONER: I think that some undertakings would be required to fix that document.

PN18

MS LUND: Okay. We have no problems with doing any of that.

PN19

THE COMMISSIONER: I think the first thing would be that we need to change, by undertaking, the title of the document so that it is consistent with the title in the application.

PN20

MS LUND: Right.

PN21

THE COMMISSIONER: Perhaps the way we do this is that I will go through each of the issues and you let me know after each issue whether you are okay with this or not, and then what we’ll do is we will send you something in writing which you could then utilise as an undertaking, and then get that signed, all right?

PN22

MS LUND: Yes.

PN23

THE COMMISSIONER: That would be the first thing, that the title needs to be changed so that it is consistent with the title in the application. Do you have any problem with that?

PN24

MS LUND: No.

PN25

THE COMMISSIONER: The second thing that would need to be changed is that the agreement needs to cover not just the current employees, it needs to cover future employees.

PN26

MS LUND: Yes.

PN27

THE COMMISSIONER: So there would need to be a change to reflect that.

PN28

MS LUND: Sure, I don’t have a problem with that.

PN29

THE COMMISSIONER: I think the third thing that would need to change is, and I think you have accepted this point, but I don’t think we have got the wording right yet, and that is that in the current clause 4.3, it could be read as saying that the award doesn’t apply. I think the intention of clause 4.3 is in fact to say that wages and conditions will always be better than the award and the award otherwise applies.

PN30

MS LUND: That is correct.

PN31

THE COMMISSIONER: I think that is the intention of it but I think that needs to be made clearer.

PN32

MS LUND: Okay.

PN33

THE COMMISSIONER: The next issue I think is this question of overtime for the graduate architects, which is in clause 3.1.

PN34

MS LUND: Yes.

PN35

THE COMMISSIONER: Again, I accept what you are saying is that your intention there is that the graduate architects will get time in lieu for additional time that they work, and that that time in lieu be negotiated in a mutually convenient way with the employer.

PN36

MS LUND: Yes.

PN37

THE COMMISSIONER: At the moment it doesn’t read clearly in that - - -

PN38

MS LUND: I suppose our intention there was that prior to this agreement we had a sort of arrangement where everyone had time in lieu available to them if they worked overtime.

PN39

THE COMMISSIONER: Yes.

PN40

MS LUND: The Draftspersons Award doesn’t actually allow for that, however my drafts people would still like to do that, which we would negotiate separately, but I am happy to re-word the clause to make that clear.

PN41

THE COMMISSIONER: I don’t think there is any problem in the draft for drafts people being able to have time in lieu by agreement.

PN42

MS LUND: Right.

PN43

THE COMMISSIONER: So I don’t think that is a problem. As I say, I think the problem is just the way it is worded in that in could imply that an employee might work overtime and not get time in lieu.

PN44

MS LUND: Okay. That was certainly not the intention so I’m happy to adjust the words.

PN45

THE COMMISSIONER: I think that is the issue there.

PN46

MS LUND: Okay.

PN47

THE COMMISSIONER: I think that you have addressed the next question but we need to put it in the form of an undertaking, and that is the fact that the National Employment Standards apply.

PN48

MS LUND: Yes.

PN49

THE COMMISSIONER: You have made suggested change to clause 16.2 to cover that.

PN50

MS LUND: Yes.

PN51

THE COMMISSIONER: So I think that issue is able to be resolved.

PN52

MS LUND: Okay.

PN53

THE COMMISSIONER: There is a requirement for the agreement to have a disputes settlement clause.

PN54

MS LUND: Yes.

PN55

THE COMMISSIONER: At the moment there is not one, but I think that clause 19 which says that the award applies where the agreement is silent would enable us to actually include the award dispute settlement clause as a dispute settlement process.

PN56

MS LUND: Okay, that is fine.

PN57

THE COMMISSIONER: You can’t have an agreement without a disputes settlement process in it.

PN58

MS LUND: I appreciate that.

PN59

THE COMMISSIONER: So I think that needs to be resolved. The issue of summary dismissal, you addressed that didn’t you?

PN60

MS LUND: I believe we did, yes.

PN61

THE COMMISSIONER: Just let me have a look. Yes, you’re suggesting that the reference to the National Employment Standards resolves that. This is point 4 of your correspondence of 2 June.

PN62

MS LUND: Yes.

PN63

THE COMMISSIONER: Well, I actually think that probably what we need is an undertaking that nothing in this agreement would undermine, or diminish people’s rights under the Act in terms of unfair dismissal. So I think we can get some simple words along those lines if you are okay with that.

PN64

MS LUND: Again, I don’t have a problem with that.

PN65

THE COMMISSIONER: I don’t think that was your intention.

PN66

MS LUND: No, it certainly wasn’t.

PN67

THE COMMISSIONER: I think the next issue was in terms of the way in which the agreement has been signed. There is a requirement under the legislation that the employee who signs the agreement, it needs to state the authority by which they sign. That is, that they are signing on behalf of the other employees, and we need - there needs to be the name and so on underneath the signature.

PN68

MS LUND: Okay.

PN69

THE COMMISSIONER: We can give you the information as to what is required there if you don’t have a problem with that.

PN70

MS LUND: No, no problem at all.

PN71

THE COMMISSIONER: The other issue is point 6 our letter of 3 May, in your response - - -

PN72

MS LUND: This is with regard - - -

PN73

THE COMMISSIONER: Intellectual property, disclosure of information et cetera.

PN74

MS LUND: Yes.

PN75

THE COMMISSIONER: Again, we can address that through an undertaking that those clauses don’t - I suppose about the status of those clauses. They’re fine as you say, as part of the common law arrangement that you have with your employees, and so if we can draft some undertaking that deals with the status of those clauses, and I think you have accepted - - -

PN76

MS LUND: This is so that it doesn’t upset the rights of all under the collective agreement. Am I correct?

PN77

THE COMMISSIONER: That is correct, yes.

PN78

MS LUND: That is fine. They are there because we work with clients like the Department of Defence, who are fairly anxious about where their information is distributed to, and we as a company sign confidentiality agreements and we need to pass that requirement on to our staff.

PN79

THE COMMISSIONER: Yes. I don’t think there is anything improper about that. I think they are the issues of concern, and what we will do is, following this hearing we will forward to you a summary of the undertakings that would be required, based on what you have said today.

PN80

MS LUND: Yes.

PN81

THE COMMISSIONER: If you then can provide those undertakings then we would then be able to issue a decision shortly after receipt of those undertakings.

PN82

MS LUND: Would that be in the form of a revised contract that my staff would have signed, or is that a separate document?

PN83

THE COMMISSIONER: Well, the undertakings would be a letter from you, signed by you, and it would be good if that was also signed by the relevant employees.

PN84

MS LUND: Sure.

PN85

THE COMMISSIONER: Because they need to be consulted about that.

PN86

MS LUND: They are all aware that we are doing this.

PN87

THE COMMISSIONER: Yes, so I think that would be the form in which it would be best done. You can then revise individual documents that you might have with your own employees, but the key issue for us as a signed letter of undertaking that goes together with the agreement document.

PN88

MS LUND: No problem. We are entirely happy to do that. I have no issues with doing that at all.

PN89

THE COMMISSIONER: All right. We will try and get that to you as soon as possible, and then if you can respond to us as soon as possible we will then try and deal with the matter when we get your response.

PN90

MS LUND: Excellent. We’re happy to get that back within a couple of days of when we receive your current letter.

PN91

THE COMMISSIONER: All right. I don’t think there is anything else we need to do today, so we will adjourn this hearing. The further hearing, if we do get the undertakings and then issue a decision, it may not be necessary to have any further hearing.

PN92

MS LUND: Okay.

PN93

THE COMMISSIONER: If a problem arises we might then need to call the matter back on.

PN94

MS LUND: Not a problem.

PN95

THE COMMISSIONER: Thanks for your attendance today and this matter is now adjourned.

<ADJOURNED INDEFINITELY [10.32AM]