S1100CRN Dec 1127/99 D Print R9324
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.99 notification of industrial dispute
Australian Municipal, Administrative, Clerical and Services Union
and
Aboriginal Housing Advisory Service
(C No. 80062 of 1999)
[ODN C No. 11134 of 1995]
[Print N3299 [S1100CRN]]
Various employees Northern Territory
COMMISSIONER EAMES DARWIN, 20 SEPTEMBER 1999
Alleged under classifications and under payment of staff.
DECISION
[1] This matter was listed for hearing following an application made pursuant to s.99 of the Workplace Relations Act 1996 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (ASU).
[2] The Applicant on behalf of its members (5 in total) raised a number of issues concerning its members employment at the Aboriginal Housing Advisory Service (AHAS) including, inter alia:
[3] Following initial submissions from the relevant parties, the Commission as constituted in this matter convened a number of conferences, involving the parties in an endeavor to secure an acceptable and agreed resolution of the matter, and it was finally determined that the Commission would hear formal submissions from the parties, to determine the matter. That hearing was conducted in Darwin on 9 September 1999.
[4] Mr Matarazzo for the ASU tendered three (3) exhibits as follows:
Exhibit M1 - Table containing the claimed grades and wage levels applicable under the Award for the five (5) ASU members.
Exhibit M2 - Receptionist Job Description.
Exhibit M3 - Housing Liaison Officer Job Description.
[5] Mr Matarazzo also called two witnesses who were employed as Housing Liaison Officers during the relevant period, namely:
Ms Cheryl Greymore
Ms Nailin Waterson
[6] It was submitted by the ASU that the 5 persons referred to above were employed by the Respondent at either the Casuarina or Palmerston offices during the financial year 1 July 1998 to 30 June 1999. The charter and goals of the Respondent were to provide information and assistance to Aboriginal and Torres Strait Islander persons, who were seeking to obtain public housing from the N.T. Department of Housing, and to assist those persons in knowing their rights and obligations regarding the conditions of tenancy in a public dwelling.
[7] From July 1999 the 5 persons were covered by the minimum terms and conditions of the Social and Community Services Industry - Community Services Workers - Northern Territory Award 1996 (the Award). It was put by Mr Matarazzo that if one examines clause 1.3.3 of the Award which defines the meaning of the social and community services industry, that many of the functions outlined, were performed by the 5 persons.
[8] The Award was declared a Common Rule Award, effective from 1 July 1998, and if one examines the exclusions subclause in that declaration, one would find that it does not include the Aboriginal Housing Advisory Service.
[9] It was submitted, that Exhibit M1 sets out the gradings contained in the Award, which are appropriate to the 5 persons, the actual pay they received during the relevant period, and the alleged underpayments the ASU was seeking on behalf of its 5 members. The total underpayment sought was $18,525.14. The period in question only began with the Common Rule declaration, and underpayments alleged, prior to that date are not sought by the ASU.
[10] Referring to Exhibit M2, the receptionists job description, Mr Matarazzo indicated that Ms Grey was the only person occupying that position. In accordance with the descriptors expressed in Grade 2 of the Award, Ms Grey's role clearly fits within those descriptors. She was the first point of call when clients visited the service and in addition to normal work processing functions, reception/filing work, she also liaised with clients in the absence of other officers.
[11] The other four ASU members were designated as Housing Liaison Officer/Home-maker, and it was put by Mr Matarazzo that their duties, set out in Exhibit M3 were in accord with the descriptors expressed in Grade 4 of the Award. They were the four most senior employees in the Association. Witness evidence was adduced from Ms Greymore and Ms Waterson which attested to the validity of Exhibits M2 and M3 and to the relevance of those exhibits to their claim to be graded as level 4 persons. [Transcript ps 14 - 22]
[12] With regard to Mr Newton, it was submitted that he was the longest serving of the employees and assumed the title of Manager simply on that basis. His duties were the same as the 3 other officers.
[13] It was claimed by Mr Matarazzo that following the common ruling of the Award, and the fact that the AHAS then became respondent to that Award, the wages of the 5 persons he represented should have been adjusted, in line with the relevant gradings in the award - namely either Grade 2 for the Receptionist and Grade 4 for the Officers. That adjustment was never done, and accordingly there is now a claim for backpay associated with that alleged underpayment and/or under classification.
[14] Mr Dearn who appeared by leave for the ADF indicated that his organisation is entirely independent of the AHAS, and whilst it is correct to say that ADF has acted as the agent of the AHAS, and at the behest of the Northern Territory Government to assist in the continuation of the work of ADF, it is not or has not taken over the AHAS. Whilst ADF attended the hearing as an interested party and is keen to see any unlawful position remedied, it believed that was an issue primarily between the ASU and the AHAS.
[15] Mr Chamberlain for the Registrar of Associations submitted that AHAS remained an incorporated organisation and has not been dissolved, even though for some time it appeared ADF had been attempting to maintain the services offered by AHAS, which had now effectively ceased to operate. Had AHAS been dissolved, the Associations Incorporations Act does provide that any assets that have not been disposed of, would vest in the Registrar of Associations. In that event, if there were funds in some account, the ASU may have a claim against those funds. One further piece of information he provided was that as part of the audit report lodged for the period ending 30 June 1997, the auditor made the comment that:
"As at 1 July 1997 the committee of Aboriginal Housing Advisory Service agreed to disband the association, hence all functions of Aboriginal Housing Advisory Service Inc will be resumed by the Aboriginal Development Foundation."
Conclusion
[16] I am satisfied based on the material presented in these proceedings, the evidence of the witnesses and a perusal of the gradings in the Award, that the claim made by the ASU on behalf of its 5 members has been made out. It is appropriate in my view that the receptionist Ms Grey is graded at grade 2, and that the four officers, Ms Waterson, Ms Greymore, Mr McKenzie and Mr Newton, are graded at grade 4.
[17] These gradings would have been effective from 1 July 1998, the time at which, through a common ruling the AHAS became respondent to the award. It would be my recommendation that the ASU pursue its claims on behalf of its members.
[18] I understand there is a continuing debate about who is responsible for any monetary claims made by the 5 persons affected by this decision, and in the event that the matter is not finally settled satisfactorily, to all concerned, the ASU may need to consider how it could further advance its claim, bearing in mind, the limits to the Commission's jurisdiction.
BY THE COMMISSION:
COMMISSIONER
Appearances:
L. Matarazzo for the Australian Municipal, Administrative, Clerical and Services Union.
J. Dearn for the Aboriginal Development Foundation.
R. Chamberlain for the Registrar of Associations.
Hearing details:
1999.
Darwin:
September 9.
Decision Summary
Work value - nature of work - classifications - various employees, Northern Territory - alleged under classification and under payment of staff - union submitted AHAS became respondent of Social and Community Services Industry - Community Services Workers - Northern Territory Award 1996 when declared Common Rule Award in 1 July 1998 - 5 employees in need of upgrading - alleged total underpayment: $18,525 - satisfied union's claims substantiated - all persons upgraded effective 1 July 1998 - debate over where monetary responsibility lies as AHAS may be dissolved - ASU may undertake further proceedings (bearing in mind limits to Commission's jurisdiction). | ||||
Australian Municipal, Administrative, Clerical and Services Union and Aboriginal Housing Advisory Service | ||||
C No 80062 of 1999 |
Print R9324 | |||
Eames C |
Darwin |
20 September 1999 | ||
Printed by authority of the Commonwealth Government Printer
<Price code B>
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