AG2009/21993, Transcript of Proceedings [2010] FWATrans 232 (23 February 2010)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 24904-1

COMMISSIONER SMITH

AG2009/21993

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

Application by Beaconsfield District Community Financial Services Limited
(AG2009/21993)
Beaconsfield District Community Financial Services Limited Enterprise Agreement 2009

(ODN AG2009/21993)
[AE873763 Print PR993463]]




Melbourne

10.31AM, FRIDAY, 5 FEBRUARY 2010

PN1

THE COMMISSIONER: I will take appearances.

PN2

MS BELL: I seek leave to appear on behalf of Beaconsfield District Community Financial Services Limited in this matter.

PN3

THE COMMISSIONER: Thank you, Ms Bell. Leave is granted. There were a number of questions I raised and you responded in writing. I don't know whether I raised this question about - I think there were two things. Clause 9.3, you may be able to assist me, it says notwithstanding 9.1 which is the ordinary hours and the span of hours that the parties can agree to something else.

PN4

MS BELL: That the parties may agree to vary the span of the employees' ordinary hours of work.

PN5

THE COMMISSIONER: Yes, now how do I put the no disadvantage test against that when I don't know what the content of any agreement might be which impacts directly upon ordinary earnings? Anyway, you might like to have a think about that. I am happy to break for a few minutes. The dispute settlement procedure is fine. The only thing I suppose is relevant in that that a few of my colleagues have been asking where they have had external services is whether or not the employees are aware of who pays? I'm sure they don't come for free and so whether or not there has been any advice to the employees that if there was a grievance that had to be taken out to an external mediator or arbitrator, whether or not they were liable for half the cost or whether the company was covering the cost. Those things are normally pretty important to people if they think they might have to be up for costs. I suppose the only thing is whether or not you wanted to add anything about the no disadvantage test and the issue that I may have to designate an award about that because these are in some senses conditions which may not be successful after it was lodged after 1 January and I would have to look at whether awards are there. You have also provided me with a decision of Commissioner Roberts. Thank you for that. Do I assume that quite properly Commissioner Roberts was advised that there were some issues I have raised.

PN6

MS BELL: No, that agreement was, Commissioner, submitted at the same time I am instructed as the Beaconsfield Community Bank agreement.

PN7

THE COMMISSIONER: I see.

PN8

MS BELL: So the agreement was in the pipeline at the same time. When I spoke with you two weeks ago I didn't have any instructions as to what stage that was at and we hadn't received any correspondence on that agreement. I have raised it purely for your information purposes. It was based on in substance the same information that was available to him.

PN9

THE COMMISSIONER: I understand. So the Commissioner didn't have anything before him that suggested that I may have raised some questions. What you say to me in effect is that one of my brothers finds it complies, why shouldn't I.

PN10

MS BELL: I mean we can only assume what Commissioner Roberts has considered but the information - - -

PN11

THE COMMISSIONER: But you haven't provided him - - -

PN12

MS BELL: We haven't provided additional information to that that was provided in the employer's declaration before (indistinct).

PN13

THE COMMISSIONER: How many of these agreements are around?

PN14

MS BELL: Only those two.

PN15

THE COMMISSIONER: Only those two?

PN16

MS BELL: Only those two, Commissioner, everything else would be post-1 January. I believe there may be a few that have been negotiated currently but obviously they will be different agreements as compared against the Banking Finance Award.

PN17

THE COMMISSIONER: Yes.

PN18

MS BELL: There is only two, this and the one approved by Commissioner Roberts yesterday.

PN19

THE COMMISSIONER: Very well. By the way I apologise for keeping you waiting, there was a small building and construction matter to quickly deal with. Do you want to have five minutes just to think about the question I raised in relation to that hours of work question. It really is delegating to the parties the capacity to say the spread of hours, if I take an absurd example, will be midnight to midnight and that would clearly be a problem although if there is nothing to apply the no disadvantage it may not be a problem. I don't know. I know in the past clauses such as that have not been looked at too favorably because they seek to devolve to the parties the capacity to completely change the nature of the agreement without ever having to attend to the statutory tests. So have a think about that for five minutes and I'll come back. The matter is briefly adjourned.

PN20

<SHORT ADJOURNMENT [10.38AM]
<RESUMED [10.43AM]

PN21

THE COMMISSIONER: How did you go?

PN22

MS BELL: I received instructions from Mr Pertzel and it seems that the intention of the clause, although I can see the Commissioner's point with regard to varying the span of ordinary hours of work, but it is not intended that it's a variation of the entire span of work for the workplace. It is rather the variation of a span of ordinary hours of work for the employee question. So an employee - - -

PN23

THE COMMISSIONER: No, even that I understand but even that it's not a variation of starting and finishing times, they're flexibility provisions that allow people to vary starting and finishing times and that's never a problem because you have still got ordinary hours span six to six, whatever, but this permits the manager and the employee to say well, the span is no longer three o'clock in the afternoon or nine o'clock at night, the span is now 10 o'clock at night or 11 o'clock at night. Now, it's absurd to think that you're going to be trading then but - - -

PN24

MS BELL: No, that's what I think, the intention of the community bank in question is that the span of hours are only able to be varied within the span of hours in 9.1A.

PN25

THE COMMISSIONER: It's starting and finishing times.

PN26

MS BELL: Precisely. So the employees will only be rostered to work between for example seven a.m. and nine p.m. Monday to Friday, but the hours of work the employee may commence seven a.m. and work for example to five p.m. on that day or the ordinary hours and then those ordinary hours they may commence later by agreement, but finishing within the span of hours.

PN27

THE COMMISSIONER: I see, so it's really starting and finishing times.

PN28

MS BELL: It is.

PN29

THE COMMISSIONER: Within the span of hours that is envisaged by - well, that
is - - -

PN30

MS BELL: I am instructed that is the intention of the clause, yes.

PN31

THE COMMISSIONER: That's not a problem, that's pretty easy. Did you want to say anything else about the designated award question? You have put in submissions. I mean I don't ask you to but it's something I've got to think about so I thought I would give you the opportunity to be heard.

PN32

MS BELL: In terms of the submissions you have got our written submissions and now the decision of Commissioner Roberts, which I think in substance the same principle is put before him so I assume - - -

PN33

THE COMMISSIONER: Nothing was put before him, he got an agreement.

PN34

MS BELL: In the employer declaration though.

PN35

THE COMMISSIONER: Yes, I understand.

PN36

MS BELL: Yes, the same information was put forward. The Community Bank still considers that there is not an appropriate reference instrument for the purpose of administrating the no disadvantage test and that while the banking industry is one that's ordinarily regulated by awards, they are enterprise awards, and as we can see by sub item 8(3)(c) an enterprise award can't be designated for the purpose of the no disadvantage test. So it's a unique position that the community banks find themselves in because as Commissioner you quite rightly pointed out before post-1 January they will be falling within the scope of the banking, finance and insurance modern award. However, pre-1 January they were not covered by any award.

PN37

THE COMMISSIONER: And only subject bound by the minimum wage.

PN38

MS BELL: Federal minimum wage and the Australian Fair Pay and Conditions standard. You are looking at the agreement, as you can see from the terms of the agreement is far more favourable than the minimum entitlements provided by that. It an agreement which provides for overtime, penalty rates, severance pay in excess of the redundancy test case pay scale decision and in turn it's still a workplace which only employs six employees at this stage.

PN39

THE COMMISSIONER: Yes, I know. Why do you need it?

PN40

MS BELL: The redundancy provision?

PN41

THE COMMISSIONER: No, why do you need the agreement? Why don't you just work under the modern award, I look at agreements that have been put in and they will say why, you can have all the flexibility you want under the modern award, why do you need the agreement for such a small number of employees? That's what always arouses our curiosity, you see.

PN42

MS BELL: Yes, Commissioner.

PN43

THE COMMISSIONER: All right. Thank you very much for that, thank you for coming in.

PN44

MS BELL: Commissioner, if you have any questions specifically addressing this in terms of submissions I am happy to go through them in terms of any award that you are potentially thinking of designating, I'm happy to provide comment on.

PN45

THE COMMISSIONER: If I am thinking about designating one you would like to be heard on it would you?

PN46

MS BELL: If we could.

PN47

THE COMMISSIONER: Of course. Did you in your little break think about the dispute settlement question that I raised? Do you know of anything that's been put to employees as to who pays?

PN48

MS BELL: In terms of payment I am instructed that Mr Pertzel is not entirely sure as to what was put to the employees at the time of the discussions, although I think the general practice has been for costs to be borne by the bank itself. Yes, the employees don't bear the costs associated with the dispute conciliation.

PN49

THE COMMISSIONER: All right. You just might like to confirm that for me and you can let me know over the next day or so. I will accept what you put to me in relation to that clause as constituting an undertaking, the spread of hours question and starting and finishing times, so that's easily enough dealt with. Just clarify for me the question of payment and then I will ponder the problem that you have so happily given me.

PN50

MS BELL: It is quite a problem, Commissioner, it's a very unique circumstance. If you look at the industry itself and it's one where there are awards in place but it is entirely regulated by enterprise awards.

PN51

THE COMMISSIONER: Yes, and to your knowledge this is the second of two only prior to 31 December.

PN52

MS BELL: That's precisely it, the second of two only and I mean having gone through the awards in the industry as part of the award modernisation process in assessing those awards, it is clear there is nothing which really applies to the banking industry. As the Full Bench itself said you can't divorce the skills and the work being performed by the employees in the industry in which they perform it. We find it difficult to find an award that fits the requirements of the Act.

PN53

THE COMMISSIONER: Then that's what we've both got to do, isn't it. All right, thank you very much for your assistance. I will simply reserve and adjourn.

<ADJOURNED INDEFINITELY [10.51AM]