THE COMMISSIONER: ......to have an agreement which will allow an employer to give less by way of remuneration or conditions to employees without having to seek a variation of the agreement could be a problem, and I just hope the parties will note that.

Here's a link to Bill Shorten's sweetheart Agreement with Clean Event Pty Ltd.

On 20 December, 2004 the Australian Industrial Relations Commission (AIRC) heard the application to certify the deal - here is a link to the transcript of proceedings (thank you to the incomparable Seeker of Truth for the tip):

TRANSCRIPT OF PROCEEDINGS 

O/N 9536

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

AG2004/8648

APPLICATION FOR CERTIFICATION 
OF AGREEMENT

Application under section 170LJ of the Act 
by the Australian Workers' Union - Victoria 
Branch and Another for certification of the 
Cleanevent Australia Pty Ltd Enterprise 
Agreement 2004

MELBOURNE

12.08 PM, MONDAY, 20 DECEMBER 2004

These were formal legal proceedings of record where parties are expected to tell the truth.  The AWU and Clean Event briefed counsel, as did the Liquor and Hospitality union.   

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN2

MR B. McNAB: I appear on behalf of Cleanevent.

PN3

MR J.W. NOLAN: I seek leave to appear for the Liquor, Hospitality and Miscellaneous Workers Union, to intervene.

In 2004 the AIRC had to be satisfied proposed Enterprise Agreements passed a "No Disadvantage Test".  

This test compared a proposed agreement to an underpinning and relevant award that had or should have covered employees up until the proposal for an agreement.

 

The No Disadvantage Test weighed the benefits of the award against the proposed agreement to ensure that, overall, employees were no worse off.

Here's what Shorten's lawyer said ostensibly on behalf of the workers - this is on Shorten's instructions:

 

THE COMMISSIONER: Good. Now, Mr Winter, my question: do you generally assert that this agreement meets the no disadvantage test?

 

PN36

 

MR WINTER: Yes, we believe it does and - - - 

 

PN37

 

THE COMMISSIONER: Good, that is sufficient, Mr Winter. Just a general question, I am looking for a yes, or basically a brief answer. But the flexibility provisions: are they anticipating that flexibility will be up or will it be both and down?

 

PN38

 

MR WINTER: We see that the flexibility provision will be basically up; that there will be - during different events there will need to be discussions between the parties on how to best operate the agreement in relation to those events. They include things like the Commonwealth Games, etcetera.

 

PN39

 

THE COMMISSIONER: Yes. Well, there is little concern about flexibility provisions which improve conditions of employment, but to have an agreement which will allow an employer to give less by way of remuneration or conditions to employees without having to seek a variation of the agreement could be a problem, and I just hope the parties will note that.

 

PN40

 

MR McNAB: That is understood, Commissioner.

 

PN41

 

THE COMMISSIONER: Good. Now, have you anything else to say, Mr Winter?

 

PN42

 

MR WINTER: Unless you have any further questions, I would rely on the statutory declarations. It has been for a re-vote and that is shown in the statutory declarations.

 

PN43

 

THE COMMISSIONER: Yes, and it was solidly supported, as I recall.

 

PN44

 

MR WINTER: Yes, it was overwhelming. 

 

PN45

 

THE COMMISSIONER: Yes.

 

PN46

 

MR WINTER: We can provide that information if you require it.

 

PN47

 

THE COMMISSIONER: But I am pleased to note that I think the retrospective payments have already been made to a number of employees.

 

PN48

 

MR WINTER: Only to the full timers. The casuals are waiting for their Christmas present at the moment.

 

PN49

 

THE COMMISSIONER: Are they? Well, there you go. It is even more important that we get this done. Mr McNab, anything else to say?

 

PN50

 

MR McNAB: Nothing further to add, Commissioner.

 

PN51

 

THE COMMISSIONER: Good, thank you. Well, having considered the submissions of the parties and the statutory declaration - of course, I take note of the undertakings given by the LHMU - sorry, the AWU and the company to the LHMU, but I am satisfied that the agreement meets the relevant requirements of the Act. The employees have been given the relevant notice of the intention to enter into the agreement. The terms of the agreement have been explained in an appropriate way. The agreement has been approved by a valid majority of employees, and lodged within the time period prescribed. 

 

PN52

 

The Commission is satisfied the agreement meets the no disadvantage test. It contains the necessary dispute settlement procedure, specifies a nominal expiry date in accordance with the Act's requirements, and is not inconsistent with the decisions of the Commission in regard to matters pertaining between the employee and employer. I, therefore, propose to certify the agreement as sought by the parties. This matter is adjourned.

 

ADJOURNED INDEFINITELY [12.17pm]

 

I would love to see (and I will as soon as we can pull the file) the statutory declarations about the workers from Clean Event voting on Bill Shorten's sell-out Agreement.   That'll be a doozy.  If you were a worker at Clean Event in 2004, can you recall voting to lose your overtime?

Finally here's some great analysis  from industrial relations consultant Grace Collier published in The Australian online here.  Grace pulls Shorten's Enterprise Agreement to bits!