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AG2005/ 3474 , Transcript of Proceedings [2005] AIRCTrans 1094 (6 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11413-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/ 3474 

APPLICATION BY NORTHERN DOMESTIC VIOLENCE SERVICE INC & AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION-SOUTH AUSTRALIAN AND NORTHERN TERRITORY BRANCH
s.170LS - Agreement about industrial dispute (Division 3)
(AG2005/ 3474 )

ADELAIDE

11.33AM, THURSDAY, 28 APRIL 2005

PN1

MS M ROGERS: I appear for Northern Domestic Violence Service.

PN2

MR D PAYNE: I appear on behalf of the Australian Services Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I have read the agreement and read the statutory declarations. The parties refer to two dispute findings in this particular application which is made pursuant to section 170LS of the Act. I should say, they appear to refer to three awards or the agreement refers to three awards, with those awards being awards of the state Commission so that the initial question that arises goes to the extent to which the necessary jurisdictional foundation for this application can be demonstrated.

PN4

I should say two other comments perhaps, before I invite either Ms Rogers or you, Mr Payne, to respond. Firstly, we have requested the reference to dispute findings from the Commission's files in Melbourne but haven't as yet received them. And secondly, there is an issue separate from but related to that which I am now raising, there are a number of clauses in the agreement where I will be referring back to those dispute findings simply to seek clarification as to the extent to which ambit exists, but could either you, Ms Rogers, or you, Mr Payne, throw any light on the jurisdictional question?

PN5

MR PAYNE: Okay?

PN6

MS ROGERS: Yes, please.

PN7

THE SENIOR DEPUTY PRESIDENT: I thought you looked enthusiastic,
Mr Payne.

PN8

MR PAYNE: Thank you, Commissioner. Look, I can attempt to assist the Commissioner with regards to questions raised. There are three awards indicated in the agreement term even though the - bear with me, I will find the appropriate document. Yes, the three awards, sir, that are mentioned in the agreement are the Crisis Assistance Support Housing (South Australian) Award. What I would say to that, sir, is that even though that has the wording Crisis Assistance Support Housing (South Australian) Award, that is a federal award, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR PAYNE: The other two awards, the Clerks SA Award and the Caretakers and Cleaners Award, it is my understanding that they are both state awards, both South Australian State awards, not federal awards. And then with regards to the two dispute numbers in the statutory declaration is that it is my understanding that the original dispute was 1998 and that this employer may not have been logged in that original dispute or their name was different at the time and that a more recent logging of this organisation was the C50275 of 1994 of when the log in and the dispute finding relevant to the new name of this organisation came about.

PN11

THE SENIOR DEPUTY PRESIDENT: And was there a new or an updated log served on the employer in 1994, Mr Payne?

PN12

MR PAYNE: I am not sure, sir, from Melbourne I got a log sent across to me that has a date of 1995 on it but I don't know whether that was when this was reprinted. My understanding was that the log was served in 1994.

PN13

THE SENIOR DEPUTY PRESIDENT: I see. All right. Well, we might have to hold over on that question until I can access the Commission's file. What I will indicate to you is that if consideration of that file gives rise to ongoing questions about the jurisdictional foundation for the agreement then I will make copies of those relevant logs available to the parties and perhaps ask you to come back and talk to them at some future time. The other option, Mr Payne and Ms Rogers, is that it would seem to me that Northern Domestic Violence Service Incorporated is a constitutional corporation. If that is the case, it begs the question as to why it is the parties want to rely on section 170LS and run the gauntlet of the agreement being found to be outside of the ambit established by those earlier dispute findings. I raise that question because I don't see any bar in the Act to the parties seeking to change the basis upon which an application is made so as to rely on section 170LJ as distinct from LS. It is not necessarily a question you need to answer now but I though I would insert into the mix for your consideration.

PN14

MR PAYNE: I appreciate the Commission's point in that area, sir.

PN15

THE SENIOR DEPUTY PRESIDENT: All right. Now, leaving aside that question I can advise the parties that I have no issue or concern on the information provided to me about the process followed in reaching this agreement. It appears to be consistent with the requirements of both Division 3 and, indeed, for that matter section 170LJ. However, if I can take the parties to the agreement itself, the questions that I have in this regard fall into a number of categories. There are questions that I have that go to the no disadvantage test where I will need to look at the relevant awards in overall terms as distinct from your particular agreement. Then there are questions that go to other of the criteria associated with certification and finally, there are a number of questions that I have that go to clarifying matters that I would rather clarify now as distinct from regret that I didn't do so at a later time.

PN16

Unfortunately, they are all mixed up a little so that if there is any doubt about the foundation upon which I am asking a question, please feel to seek that I clarify that. The questions do not invite the parties to rewrite the document and perhaps if I start with the no disadvantage test question, am I correct in understanding that the agreement does not specify wage rates? It certainly in that regard falls back on the award as it exists at the time of certification.

PN17

MR PAYNE: Commissioner, it is my understanding and my instructions that the agreement was not to disadvantage any employees, there were no wage increases above those applying in the awards. There were other offsets that were to meet the no disadvantage test but it wasn't the intention of the clause which states:

PN18

As the agreement is at the time of certification

PN19

That wasn't the intention of that clause that when there were wage increases by way of safety net increases in the award that they would still flow on to all of the employees. It wasn't to restrict that area, it was only, the intention was should provisions in the agreement be significantly changed during the life of, as to terms of employment that what would be applied to the employees would be the terms of the award as applied at that time but it wasn't to restrict the wages to what were, sir.

PN20

THE SENIOR DEPUTY PRESIDENT: So that if I look at clause 7.1 which relates to the relationship to awards, what you are saying to me there is that notwithstanding those provisions, any wage increases granted in those three awards subsequent to the certification of the agreement would be flowed on to employees.

PN21

MR PAYNE: That is correct, sir. That is my understanding.

PN22

THE SENIOR DEPUTY PRESIDENT: What about conditions changes?

PN23

MR PAYNE: The intention of the parties, sir, was that if there were any reductions in the awards from what they were at the time of certification that those provisions would still be applied to employees.

PN24

THE SENIOR DEPUTY PRESIDENT: I see. So that if there are improvements from an employee perspective made to those awards, the parties intend that they would also be picked up?

PN25

MR PAYNE: Yes, sir.

PN26

THE SENIOR DEPUTY PRESIDENT: I see. Ms Rogers, is that the employer understanding?

PN27

MS ROGERS: Yes. That is correct.

PN28

THE SENIOR DEPUTY PRESIDENT: So can I take it that because of the extent to which that advice could be said to be somewhat divergent from the actual literal words in clause 7, can I take it that the employer is, in effect, giving me an undertaking to apply the agreement in conjunction with the terms of the Crisis Assistance Supported Housing (South Australia) Award 1995, the Clerks South Australia Award and the Caretakers and Cleaners Award, however those awards might be varied over the life of this particular agreement?

PN29

MS ROGERS: Yes. The employer would give that undertaking.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN31

MR PAYNE: If I may?

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Payne?

PN33

MR PAYNE: Senior Deputy President, there was a reference I needed to make the Commission aware of. It is on page 4 and it is with respect to clause 12, Workplace Relations. The copy of the agreement submitted to the
Commission - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Hang on, Mr Payne. My page 4 doesn't have a clause 12.

PN35

MR PAYNE: That is where I am heading, sir. It is on page 5, there are two parts of clause 12, there is 12.2 and 12.3. What I was going to make the Commission aware of is the document that went to all employees to vote on in the instance had on page 4, following 11.2, it had the beginning of clause 12 which was headed Workplace Relations. It also had a statement as to what 12.1 indicated. It then went to page five with provisions of 12.2 and 12.3. We had addressed this issue and as I have stated on transcript, sir, that the document that went to all employees that voted on did have that wording on page 4 and it was an omission on the copy that was submitted to the Commission at the time, it was an error.

PN36

THE SENIOR DEPUTY PRESIDENT: So do you have a revised copy or, I better rephrase that, do you have a copy of the document upon which the employees voted?

PN37

MR PAYNE: I have a copy of the page 4 from the document that went to all of the employees and applied for the vote, the agreement that I have got to hand up to the Commission if that would assist it.

PN38

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. So what you are saying there is something happened in the reprinting process so as to delete a part of page 4.

PN39

MR PAYNE: Omissions. Yes, sir.

PN40

THE SENIOR DEPUTY PRESIDENT: And Ms Rogers, you can confirm to me that to the best of your understanding the document that went to employees reflected this revised page 4 that I have now been handed?

PN41

MS ROGERS: Yes, I can.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well, thank you. Mr Payne, I am struggling a little. This document is in a different type face, is that just simply reflecting the way in which it has been printed out?

PN43

MR PAYNE: Yes, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: I see. Thank you.

PN45

MR PAYNE: We have just changed all of our computers in our office.

PN46

THE SENIOR DEPUTY PRESIDENT: Clause 15 deals with redundancy.
15.1 establishes some general principles. How should I understand that 15.1 in the context of the three different award redundancy arrangements?

PN47

MR PAYNE: I am not quite sure of the Commission's question, if the Commission could elaborate?

PN48

THE SENIOR DEPUTY PRESIDENT: The awards have some variations in terms of their redundancy provisions. Does that mean that the three awards will be followed so that different discussions might occur with different groups of people? I mean, some discussions with various groups being the subject of different forms of discourse on this issue or will there be a collective approach to any such discussions?

PN49

MR PAYNE: There would be a collective approach to any discussions prior to any undertakings, sir.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 20 deals with special leave, Mr Payne. This is another one of the questions that is generated by the fact that this is a division 3 application. I will need to be satisfied either by my own consideration of the logs that the ambit exists for this particular provision. That is not a question that I would expect you to be able to answer now. Equally, clause 26 which relates to the reimbursement of childcare costs raises the question of ambit and so too does clause 27 which is the salary sacrificing provision. Clause 29 deals with mobile telephones and again it raises the question of ambit, particularly if that 1988 log is to be relied upon. There weren't a large number of mobile phones around in those days.

PN51

MR PAYNE: No, that's correct, sir. Just in regards to that on the ambit that I have got, and it may not be the same one as the Commission gets but we would need to wait and see that, I have been through the ambit that I have and there is certainly a clause in there, it is clause 47 which goes to the area of telephones and the ambit that I have, sir, indicates that the employer would supply all employees with a telephone.

PN52

THE SENIOR DEPUTY PRESIDENT: I see.

PN53

MR PAYNE: Other than that, sir, we would say that that clause is about a tool of their trade in that the employer will be supplying a telephone for people that are out on the road, a mobile telephone and would be classed as, could be linked to ambit as a tool of their trade.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, well as I have said to you, if I can't be satisfied from my consideration of those logs then I will re-list the matter and see what we can sort through.

PN55

MR PAYNE: Yes, sir.

PN56

THE SENIOR DEPUTY PRESIDENT: Needless to say, the use of section 170LJ eliminates the need for some of these ponderings. Clause 30 deals with the dispute resolution with particular reference to 30.4. Ms Rogers, are you able to advise me that in the event that an employee is not a member of the ASU, possible not a member of any union, they have the capacity to be represented by a representative of their choice.

PN57

MS ROGERS: Yes, certainly.

PN58

THE SENIOR DEPUTY PRESIDENT: And in terms of 30.6, the agreement envisages an unresolved matter would be referred to the Commission for determination. Do the parties expect that the Commission would first of all try to resolve any such matter by conciliation with arbitration as a last resort? Or have they another expectation?

PN59

MR PAYNE: That is the ASUs expectation, sir, that it would be by conciliation in the first instance and as a last resort, arbitration.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you. And Ms Rogers, is that your view too?

PN61

MS ROGERS: Yes, it certainly is.

PN62

THE SENIOR DEPUTY PRESIDENT: Clause 31 represents another question that goes to the issue of ambit. Depending on how I read that particular provision, Mr Payne, it might also be a question as to the extent to which it is a matter pertaining. Should I understand that it might go to consideration of the equipment used in the way in which employees work?

PN63

MR PAYNE: Sir, I think clause 31 in my understanding of the hearings that I have been involved with in this Commission could be the, for want of a better phrase, sir, the deal breaker or the maker or breaker of certification of this enterprise agreement whereby you, sir, or this Commission and yourself sitting in it had addressed a similar clause in a previous agreement, that agreement was the Copper Coast Enterprise Agreement. And you certainly placed on transcript that you believed that, or your finding was that it did pertain to the employee, employer relationship but that you had determined that it did not fit within ambit and under the provisions of the requirements of the Act for a division 3 certification in the dispute findings. Again, sir, I would have to indicate at this point in time, that with the ambit that I have it does not go any further to addressing environmental efficiency provisions per se and as the Commission indicated in that previous hearing that I was talking about, the Copper Coast EBA transcript whereby the Commission indicated that he had spent some time reading the dispute finding and the associated log of claims but cannot see the word, "environment" anywhere in it.

PN64

I certainly can't find the word "environment" anywhere in the log that I have, sir. I don't believe that even when the Commission is supplied with ambit that it will have the word, environment, in there as I indicated, sir, earlier per se. But I would put to the Commission with respect to this clause that it is incidental and ancillary to the ambit in the log that I have, sir. And that is with regards to clause 35, the change provisions, whereby - - -

PN65

THE SENIOR DEPUTY PRESIDENT: I take it we are talking about workplace change as distinct from private change?

PN66

MR PAYNE: Yes, sir. The introduction of change in my ambit indicates that where a respondent intends to carry out or has carried out a study as to the feasibility of any change or intends to implement any change whatsoever to their operations including, without limiting the general to the forgoing it indicates some areas. There are roman numerals (i) (ii) (iii) (iv) (v) and (vi) and in roman numeral (iv) the employer is generally the forgoing the equipment used in connection to work which we would say is as per 31.2 in the agreement, it talks about environmentally sensitive materials and technology. So we believe it would be linked by way of the introduction change clauses and that the clause in the agreement does only go to the area of the parties investigating ways of reducing of waste and use of energy and the using of more environmentally sensitive materials. It is not specifying any implementation so that the provision could be categorised as being trivial in the overall effect of the agreement, as I have indicated before, sir, in that it is a commitment from the parties only to investigate and not to implement. So with that, sir, that may help when you have your findings that you have a further submission in that area.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Payne. Ms Rogers, I am taking it that unless you have commented otherwise, you are in agreement with all of Mr Payne's responses?

PN68

MS ROGERS: Yes.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I can confirm to the parties once again that I am satisfied that the approach that was followed in reaching this agreement was consistent with the requirements of the Act. Had the application been made or in the event that a request is made that it be considered pursuant to section 170LJ, I would have certified the agreement today. In the event that a request is made to change the jurisdictional foundation upon which the application is made, I will consider that request. I see no bar to the parties changing the foundation upon which the application is made. If, however, the parties wish to proceed with the application as an application made pursuant to section 170LS then I will need to look at the relevant dispute findings and as I have indicated, if I am able to form a view that the ambit exists such that the agreement can be certified, then I will do so from the earliest possible date after my receipt of that material. If however, I have a problem in that regard, I will send out to the parties a copy of the ambit or the logs of claims referenced and invite you both back in here to talk to those various provisions. Are you happy with that approach, Mr Payne?

PN70

MR PAYNE: Certainly, sir. I was just wondering if we may have a short adjournment as I need to discuss a position with the employer that we had discussions with respect to this issue of the certification under LJ or LS, sir. We had some discussions about that situation yesterday afternoon and I was just going to confer with my colleague and we may be able to seek some further assistance from the Commission how we may be able to appropriately - - -

PN71

THE SENIOR DEPUTY PRESIDENT: You need five minutes or so, Mr Payne?

PN72

MR PAYNE: Five minutes would be quite sufficient, sir.

PN73

THE SENIOR DEPUTY PRESIDENT: All right. I will adjourn the matter for five minutes.

<SHORT ADJOURNMENT [12.02PM]
<RESUMED [12.06PM]

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Payne?

PN75

MR PAYNE: Thank you, Senior Deputy President. My colleague and I have had some discussions with regards to the application for this agreement and the jurisdictional areas of 170LJ versus 170LS and we have been authorised to further progress, or seek some assistance off the Commission of being able to change the jurisdiction for this agreement to 170LJ agreement versus 170LS, that the parties would be, if the Commission could give us some directions, were able to change that application. And what we would need to do to change that, whether we would need to go back to a vote of employees or - yes, basically, where we would need to go from this.

PN76

THE SENIOR DEPUTY PRESIDENT: Mr Payne, I don't' see that you need to go back to a vote of employees at all. The process outlined for approval of an agreement under Division 3 is fundamentally the same as that which is detailed in section 170LJ. I don't see the parties need to make any written change to the basis in the application and a verbal request for an alteration of the basis upon which the application is made would suffice. The only question that you will need to address is you will simply need to satisfy me that I can in fact regard the organisation as a constitutional corporation. Now, in that regard, Senior Deputy President Polites set out a series of tests in, I think it was the Esperance Shire Council case. The key factors appear to go to the corporate structure, the trading arrangements and as a subset of that, issues associated with sources of funding. Now, is there any information that you or Ms Rogers can provide to me in those respects? I don't want to force you to do so now if you are not quite ready to do so. I would be quite happy for you to go away and look at Senior Deputy President Polites' decision. If you can't find it you can come back to my office and we will give you the actual print number. But if you can provide me with that information now then I am happy to consider it now.

PN77

MS ROGERS: Yes. We are an incorporated organisation and we do have an incorporations number but unfortunately I don't know it.

PN78

THE SENIOR DEPUTY PRESIDENT: You would be no orphan in that regard, Ms Rogers.

PN79

MS ROGERS: Sorry?

PN80

THE SENIOR DEPUTY PRESIDENT: You would be no orphan in that regard. What about the sources of funding and the way in which the organisation trades? How could I regard you as in any sense a commercial organisation?

PN81

MS ROGERS: Our funding is government funding and we are a non-government organisation. We do also derive some funds through donations and through rental income. I am not sure what else to tell you.

PN82

THE SENIOR DEPUTY PRESIDENT: Are you able to give me the broad split of that funding arrangement? If you can't then I am happy to give you the opportunity to go away and put that documentation together.

PN83

MS ROGERS: I suppose I can tell you that our funding comes from the Commonwealth and state funding, that that is under an agreement that lasts for a period of time. This period of time it will go to the end of June and there will e a new agreement in July. That funding comes to us quarterly and that any other funding, as I say, is derived from donations which we don't always know when they will come in and is also derived from rental income in that our accommodation outlets we rent out, and so our clients pay us rent. So income is also derived in that area.

PN84

THE SENIOR DEPUTY PRESIDENT: I see. Yes. What sort of amounts are we talking about in percentage terms associated with the property rental? See, what I am looking for is how I can regard the organisation as operating on a commercial basis and once again, I stress I am very happy to give you the opportunity perhaps to let Mr Payne, using his vast resources, locate
Senior Deputy President Polites' decision, perhaps have a discussion with you on the phone and then you can forward it in to my office, that outline that addresses the criteria that were identified by the Senior Deputy President in that decision. It would seem to me that might be the safer way about it.

PN85

MS ROGERS: Yes. Off the top of my head I wouldn't be able to say what proportion the rental income is.

PN86

THE SENIOR DEPUTY PRESIDENT: And if on the basis of that information, I was able to conclude that the employer could be regarded as a constitutional corporation, then as I have indicated already I would certify the agreement from that date. And inherent in that is accepting the requests of the parties to change the jurisdictional basis upon which the application is made. If, on the other hand, I had a problem in that regard and I would be somewhat surprised if I did, but let's say that I had a problem in that regard, then I take it the parties would revoke the request to change the foundation upon which the application is made and we will go back to plan A.

PN87

MS ROGERS: Yes.

PN88

THE SENIOR DEPUTY PRESIDENT: Are you happy with that approach, Ms Rogers?

PN89

MS ROGERS: Yes, I am.

PN90

THE SENIOR DEPUTY PRESIDENT: Mr Payne?

PN91

MR PAYNE: Yes, sir. We think it's appropriate that we would go away and help, he parties would try to get the information together and the written submission to the Commissioner as to the constitutional corporation status of the organisation.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes. All right. And if, Mr Payne, perchance, you were not able to locate that decision of the Senior Deputy President please feel free to contact my associate and we will put our fingers on it for you fairly quickly.

PN93

MR PAYNE: Thank you, sir.

PN94

THE SENIOR DEPUTY PRESIDENT: I could have given it the wrong title but I think it was Esperance in Western Australia. Very well. I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [12.14AM]