AG2001/2800, Transcript of Proceedings [2001] AIRCTrans 1191 (20 June 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE BOULTON

AG 2001/2800

APPLICATION FOR CERTIFICATION OF AGREEMENT

APPLICATION UNDER SECTION 170LK OF THE ACT
BY LINKBOND (ASIA) LIMITED TRADING AS
THE GRACE HOTEL FOR CERTIFICATION OF THE
GRACE HOTEL SYDNEY - CERTIFIED AGREEMENT
2001-2004

SYDNEY

3.00 PM, MONDAY, 28 MAY 2001

PN1

HIS HONOUR: Can I have appearances please?

PN2

MR AGNEW: If your Honour please, I seek leave to appear.

PN3

HIS HONOUR: Yes, thank you.

PN4

MR TAHERI: Your Honour, I am the representative of the staff of the Grace Hotel of the focus group. The focus group being they are the representatives elected within the hotel to discuss the enterprise agreement.

PN5

HIS HONOUR: Thank you. Yes, Mr Agnew.

PN6

MR AGNEW: Your Honour, I would just refer you to material that has been filed with the application, they being two statutory declarations, one by Mr Taheri, who is here today, representing the employees, another by Mr Colby, who is the hotel general manager, and he is also with me today, together with human resources manager, Mr White. In terms of the statutory requirements, I believe that that material meets the requirements for you to approve the agreement under section 170LT. I can if you wish, just go through some key changes or benefits - and/or benefits - to the agreement, if you wish?

PN7

HIS HONOUR: Yes, if you would do that.

PN8

MR AGNEW: Your Honour, the agreement that the hotel is seeking to have approved, is one that will operate for a period of just under three years. And it is also one that has been developed through a process of long negotiation with a focus committee, since December of last year. Some of the benefits and/or reductions, I just refer you to, there is a multi-hiring clause at clause 2.7. This gives the ability for employees who are either full-time or part-time, on mutual agreement, to work a second job as a casual.

PN9

I would point out to you, there was a - and I would be seeking to have these undertakings form part of the agreement - but attached to the agreement as filed are - is a section 170LV undertaking, and with respect to clause 2.7, at point 2 of that undertaking, there is a clear undertaking that that clause would not be used to avoid overtime. That was a concern, not only of the employees, but of the union, when we had some discussions with the union prior to this application being before you.

PN10

Other key reductions or benefits - I would just point out the classification structure is what is termed as a generic classification structure at 3.2. It has job titles and does refer to certain competencies for each of those levels. Again I would refer you to the undertaking attached to the front of the document which deals with claus 3.2. Those competencies to get from one level to the next, your Honour, are actually based upon the same competencies set out in the relevant award, being the Federal Hotels Award, or the major award for that site.

PN11

They are what are termed as national competency standards, so what we are seeking to apply to the classification structure there is a similar - there is a six level, what I call skills stream structure in the award. We have adopted exactly the same, but we have put it on a generic level. When I say skill stream, there are three streams, there is food and beverage, there is guest service, and there is front office and clerical. What we have done in the job levels is put them together at 3.2 and we have one generic classification structure.

PN12

But the competencies to get from levels 1 to 2, 2 to 3, 4 to 5, etcetera, are exactly the same competencies as the award dictates. Then I would refer your Honour to clause 3.3, wages. The rates at the time, your Honour, that the agreement was voted on, didn't include the national wage case, or the recent national wage case decision, on 2 May. I have been informed by my client that in fact the award, the relevant award, or the major award, that being the what is colloquially called the Federal Hotels Award, was actually varied on 22 May, to incorporate the recent safety net adjustments.

PN13

I would just point out to you at 3.3, we actually, or my client actually, included - if I take you first of all to the full-time/part-time base rate, the time the agreement was voted on, that rate was actually 3 per cent above the award rates that existed at that time. So currently they are in fact equivalent to, or slightly less than, the award rate, and I will go on that point about being slightly less than, shortly. In terms of the loaded rates. There are two loaded rates, or what we call flat rates, in the document, one applying to casuals and the other applying to full-time/part-time employees.

PN14

That rate is a 14 per cent on the base rate, which in effect at the time the agreement was voted upon, if you go to say, for instance, the entry level, it is, at the time the agreement was voted upon, it was actually 17 per cent above the relevant award rates, and to get from entry to mid-point, from mid to high, there are 3 per cent increments. And they are basically based upon employees meeting certain defined tasks. Basically, if you want to get from entry to mid, it is automatic after three months, and then after - from mid to high, you have to achieve some defined competencies that are required.

PN15

But in terms of the full-time/part-time rate, it is currently between 14 and 20 per cent higher than the current award rates.

PN16

HIS HONOUR: This is the mid-rate? Is that what you said?

PN17

MR AGNEW: No, the entry rate would be 14.

PN18

HIS HONOUR: The entry rate?

PN19

MR AGNEW: The mid-rate would be 17, and the high point would be 20.

PN20

HIS HONOUR: For which level are you talking about?

PN21

MR AGNEW: All the levels except for the introductory of course, your Honour. From levels 1 through to 6.

PN22

HIS HONOUR: What do you say they are? What figures did you quote?

PN23

MR AGNEW: Well, your entry rate, your current award rate.

PN24

HIS HONOUR: Yes.

PN25

MR AGNEW: Say at level 1, is actually, it is 11.3184 now.

PN26

HIS HONOUR: Yes.

PN27

MR AGNEW: We are slightly less than that, and I will refer to what we are going to do about that. But the 12.88 is 14 per cent on that entry rate for the base rate.

PN28

HIS HONOUR: I see.

PN29

MR AGNEW: And then - - -

PN30

HIS HONOUR: The 12.88, that picks up - the loaded rate picks up various payments that would otherwise be made.

PN31

MR AGNEW: Yes.

PN32

HIS HONOUR: In relation to - - -

PN33

MR AGNEW: Weekend penalties - - -

PN34

HIS HONOUR: Weekend penalties - - -

PN35

MR AGNEW: - - - late work allowances - - -

PN36

HIS HONOUR: - - - and evening, yes.

PN37

MR AGNEW: - - - and some public holidays. Not all public holidays.

PN38

HIS HONOUR: Yes.

PN39

MR AGNEW: There are two days - sorry - three days in the agreement, Good Friday, Easter Monday and Christmas Day, which will be paid at double the loaded rate. That is set out in clause 5.6(i)(b). The same applies, your Honour, for the casual loaded rate. It currently stands, if you look at the current award rates, as of 22 May, the entry rate is 32 per cent above the award Monday to Friday rate. And the mid point is 35, and the high point is 38 per cent. The award for Monday to Friday, is a 25 per cent loading.

PN40

So Monday to Friday they are getting at least 7 per cent above the award. The award on Saturdays and Sundays is 50 per cent and 75 per cent respectively. There are no junior rates in this document, your Honour, so that if you have persons under the age of 20, I think it goes down, well, 20, 18, and 17 and under, there are no percentages of those rates, all employees regardless of their age will be paid the same rate. That is set out in 3.3.2. There is a provision for existing staff to choose which rate they should get. So if you have an existing full-time employee, they can choose to be paid the base rate or the flat loaded rate.

PN41

And that commitment is set out in 3.3.5. If they choose the base rate, your Honour, they will get the same weekend and public holiday penalties as per the award, and that applies whether you are full time, part time or whether you are a casual employee. Again, there is an audit test in this document, your Honour, at 3.3.8, and at appendix 1, to the document. That audit test basically says an employee can turn around on termination or after 12 months of service, and request that the hotel compare what they would have been paid under the award against what this agreement paid them, and if there is a deficiency, then the hotel will make up that deficiency.

PN42

I should also point out at clause 3.3.11, in keeping with some recent decisions which I know are under appeal, but there is a provision at 3.3.11 if there is a casual employee engaged in the hotel for 12 months or more, currently, or in the future, they will be offered either full time or part time employment based upon whether or not people can fulfil the role of a full time employee or a part time employee. But there is a commitment that they work regular hours, 12 months or more, they will be offered full time or part time employment.

PN43

There is also a commitment with respect to trainees which is increasingly a feature of the hospitality industry, your Honour, that trainees will not be paid in accordance with the National Training Wage Award, but will in fact be paid in accordance with appendix 3, and 3.4.3 which in a nutshell says, you will be paid the same rate as other employees if you do traineeships. So there is no provision there for the National Training Wage Award, it is a provision basically saying the hotel will pay you the trainee the same rate as somebody who is not doing a traineeship. At clause 3.6, your Honour, there is a provision for a wage increase.

PN44

As I say at the time the agreement was voted on, we actually gave, or what we thought was to be enough for the National Wage Case decision. There was a three per cent bonus there for approval. There will be a further three per 1 February 2002, and another further three per cent from 1 February 2003. Now, at clause 3.6.3, there is a commitment that if those increases fall behind the National Wage Case decisions, then the hotel will make up the difference, and your Honour, I should then refer you back to - of the rates specified in 3.3 of the Agreement, the introductory rate in level one are slightly behind the National Wage Case decision, or the recent one.

PN45

And I will give an undertaking in accordance - in addition to 3.6.3 that the rates will be adjusted so that the National Wage Case decision is reflected in those two levels - the minimums. The difference, your Honour, is for instance at the introductory level base rate, full time, part time, the agreement specifies 1085.29, that the current rate would be 10887.59. It is a couple of sens but in accordance with the commitment at 3.6.3 and I would further undertake to match the recent National Wage Case decision, just for those two levels.

PN46

You will find, for instance, at level four, they are getting about five cents an hour better, because we go to flat three per cent and you will find that in the award the recent National Wage Case adjustment for say a level four person or a trade rate was only about 2.7 to 2.8 per cent.

PN47

HIS HONOUR: So how do you intend to deal with that?

PN48

MR AGNEW: In accordance with the commitment at 3.6.3. I am just making you aware if you need an undertaking, I can certainly give you that undertaking, but the intention of 3.6.3 was to match any National Wage Case decisions if we fell behind. Just emphasise that we gave the employees actually a three per cent increase on approval.

PN49

HIS HONOUR: 3.6.3?

PN50

MR AGNEW: Yes, your Honour. What 3.6 does not show is that we gave three per cent on approval of this agreement, and that was one of the increases.

PN51

HIS HONOUR: Where are the performance based increases? They are the mid - - -

PN52

MR AGNEW: That is the entry, the mid, the high. That is set out, your Honour - - -

PN53

HIS HONOUR: So that is - they are the performance based increases?

PN54

MR AGNEW: Yes. They are additional pay increases that people will get. A summary of it is set out in appendix two. Basically how it works, your Honour, is that a new employee will start at the entry point, which is, in effect, the award rate. If you look at the base full time part time rate?

PN55

HIS HONOUR: Yes, no, I remember the explanation you gave.

PN56

MR AGNEW: Yes.

PN57

HIS HONOUR: So which rates would this apply to this - immediately - - -

PN58

MR AGNEW: All the rates in the agreement including - - -

PN59

HIS HONOUR: No, sorry, the adjustments that you are proposing?

PN60

MR AGNEW: Sorry, your Honour. The introductory rate - - -

PN61

HIS HONOUR: Yes.

PN62

MR AGNEW: - - - needs to be adjusted to base rate - or needs to be adjusted from 1085.29, to 1087.89, and therein all the other rates will have to be adjusted across the board - the loaded rates.

PN63

HIS HONOUR: For the introductory person?

PN64

MR AGNEW: That is correct, your Honour.

PN65

HIS HONOUR: Yes.

PN66

MR AGNEW: And level one, is currently 1130.56 will have to be adjusted to 1131.84, and then all the other rates across and down, level one, would have to be adjusted. The rest of the levels are marginally above or substantially above. I will then refer you to the hours of work, your Honour. There are some reductions that I need to make you aware, in terms of hours of work. For instance, 4.1.1(b), minimum hours for a full timer, the awards says, six, we are asking for a three hour minimum. The maximum though is 10, the award says 11½, so it is 10 or 12 by mutual agreement.

PN67

HIS HONOUR: Sorry, this is what clause?

PN68

MR AGNEW: 4.1.1(b), your Honour.

PN69

HIS HONOUR: Yes.

PN70

MR AGNEW: The span of hours is 14, the award says 12. That is at 4.1.1(c). At 4.1.1(f), a minimum break between shifts is eight hours, the award says 10, but in cases of employees swapping shifts it is eight. The same sorts of changes I have just mentioned are 4.2.1(b) and (c). I should though, point out that unlike the award where it simply says - specifies a daily minimum, and then says you must work regular hours, there is a guarantee for part timers of 24 hours or 48 hours over a two or four week period respectively, so that is a benefit compared to the award.

PN71

Than with respect to overtime, your Honour, at 4.5.3, we are asking for overtime to be simplified in the sense of, it will be 50 per cent in addition to whatever rate they are paid for the first two hours, and 100 per cent thereafter. The award on weekends says it has all got to be 100 per cent. And the overtime clause also has a provision for banking of hours on a - by mutual agreement. If there is no mutual agreement then overtime is payable, but if employees agree they can bank hours on a hour for hour basis.

PN72

I should point out that I do recollect Vice President Ross in a decision some years ago in Lilianfels Blue where he approved that type of arrangement as long as it was by mutual agreement and it was not done to avoid overtime. Your Honour, then I take you to annual leave. Obviously all the leave entitlements for those people paid the loaded rate will be at a higher rate rather than being payable at the ordinary Monday to Friday rate when taken, leave will obviously be paid at a higher 14 to 20 per cent so they have already got a loading, let us say, built into that rate or when they take annual leave.

PN73

There is a provision that we do say at 5.1.5 that the leave loading has been bought out so that flat rate that we talked about previously, not only included weekend penalties and some public holidays, it does buy out going forward leave loading. I should point out the award does not prescribe leave loading in situations where the employee is terminated with less than 12 months service. I should also point out that with existing staff the hotels guaranteed that if you have qualified for leave loading they will pay it out on operation of the agreement.

PN74

There is also a provision at 5.1.8, your Honour, with respect to cashing in of annual leave. I would point out, though, that will only be done if the employee can establish - first of all it will be done with the consent of the hotel, but more importantly, it will be only be done if the employee has taken some annual leave in the previous 12 months and can establish a financial necessity to do so. With respect to clause 5.2, personal leave, again it will be paid at a higher rate, for instance if an employee is sick on a Saturday they will get their flat rate if they are paid that flat loaded rate rather than the award Monday to Friday rate as it currently stands.

PN75

There is at 5.2.7 an attendance bonus where employees will be paid, if they do not take any annual leave in a particular year they will be paid two days of their accrued entitlement. Long service leave, your Honour, is in accordance with the New South Wales legislation except there is a provision for employees to cash that long service leave in. That is at 5.3 At 5.6, your Honour, there is a provision with respect to public holidays. People paid the base rate will still get the normal award public holiday penalty. Those paid the loaded or that flat rate, full time, part time or casual, will get a hundred per cent in addition to their rate for three days, Good Friday, Easter Monday and Christmas Day. Lieu days still remain as per the award.

PN76

HIS HONOUR: The long service leave entitlement would otherwise be under the New South Wales legislation?

PN77

MR AGNEW: That is correct, your Honour. It is the Long Service Leave Act 1955.

PN78

HIS HONOUR: Is that 15 years after 13 weeks?

PN79

MR AGNEW: Yes. In order to take it, it is 13 weeks after 15 years service. In certain defined situations you can get it pro rata in two incidences. If you are ill or made redundant you are entitled to a pro rata payment of long service leave after five years. If you are not terminated for anything other than serious misconduct you will be entitled to it pro rata after ten years. The only real difference in this case, your Honour, is that we do not make any difference with respect to the two pro rata entitlements and in fact we say after five years across the board you can either take it or be paid it regardless of whether, or except for situations where you have been terminated for serious misconduct, or if you resign.

PN80

Sorry, you will be able to take it if you resign or you resign due to personal illness. There is a stand down provision that is as per the award that states that. As I say, appendix 1, your Honour, sets out the audit test, appendix 2 sets out the performance pay system. Appendix three sets out the traineeships, appendix 4 sets out parental leave. In terms of the agreement, your Honour, they are the key differences that I would refer you to. There is only just one other point.

PN81

In terms of that undertaking attached to the front of the application, your Honour, or to the document accompanying the application, there was one other point that employees were concerned about and that was, there was not any specific reference in clause 1.5 to them having the ability to have an industrial organisation represent their interests. At point 1 to that undertaking, we have made that commitment. So that any stage if the dispute resolution clause is enacted, that can have an industrial organisations that is entitled to represent them - their interests - represent them at any stage of those steps. If your Honour has any further questions I am quite prepared to answer them, but they are - that is a summary of the key reductions and benefits in the agreement or the application before you.

PN82

HIS HONOUR: The outcome of the ballot was 54 in favour, and 51 against?

PN83

MR AGNEW: Your Honour, we have - I should point out to you that there was a previous ballot about six weeks before where it was narrowly defeated, and I should say that from our perspective we have, and I will not mess around with you, we have had a number of issues with the union but they have chosen today not to turn up, for whatever reason is unto themselves. All I would simply say to you, yes, it was a narrow vote, but the Act simply requires a valid majority. I should point out that this second ballot was conducted by the Australian Electoral Commission. It was a postal ballot, so any form of intimidation or duress certainly was not there.

PN84

HIS HONOUR: Was the agreement the same?

PN85

MR AGNEW: There were not any changes, I am advised or instructed, your Honour. There was a suggestion, I believe, that the first vote - we had some issues - right of entry issues with the union. A number of employees and the hotel itself were concerned that employees were intimidated in some way of the first vote, and the object of having a second vote and the way it was conducted was to take that intimidation out and get a true reflection of the staff's view of the proposal. If your Honour pleases.

PN86

HIS HONOUR: Can you address section 170LK(5) in relation to the correspondence that is attached to - - -

PN87

MR AGNEW: If you wish your Honour - - -

PN88

HIS HONOUR: - - - Mr Colby's declaration?

PN89

MR AGNEW: Your Honour, you would be aware of the Novack decision. I do have a copy of that for you. It would be my submission in terms of that, before the making of this agreement, that no request of this agreement in terms of this current - the last vote that we had, that there was no request made, and I can hand up a copy of that decision. Why I say that your Honour, and once I let you get a copy - look at the - if I could just refer you to page 6 of their Honour's - or the Full Bench's - sorry - decision, this is dealing with a situation where the LHMU sought to intervene in a process under section 43(2)(a) which was - in effect they were saying, your Honour, that there was a request made to represent, prior to the making of an agreement. If I take you to paragraph 18, that is marked there, and just to the fourth last line where the Full Bench says:

PN90

We are of the opinion that any entitlement a person has to request an organisation to represent and consequent entitlement of the organisation to be given a reasonable opportunity ceases when the agreement is made.

PN91

That is in the present case on 1 March 1999. If you look at our material, in respect of a request to confer about this document it was not - there really was not any request of any nature until the - and I should point out there was a dispute notification filed on 19 April with the LHMU. The votes started on 16 April. In my view an agreement starts - comes to be made as soon as the vote starts. And in that respect I will hand up another decision of her Honour, Senior Deputy President Drake.

PN92

HIS HONOUR: Why would the agreement be made before it is approved by the majority of the people - - -

PN93

MR AGNEW: Well, in that case that was what 1 March was, when the vote - I mean, the practical difficulties are, your Honour - - -

PN94

HIS HONOUR: 1 March?

PN95

MR AGNEW: The first of March. That - in particular - in that Novack decision - - -

PN96

HIS HONOUR: Yes.

PN97

MR AGNEW: But the practical difficulties are these, your Honour. We have a postal ballot which, in order to give people a fair chance to vote, is conducted over two weeks. It is not a situation where it is conducted on the day, for a couple of hours, or it is in a factory floor with a show of hands. It is a situation where the vote starts on 16 April, with respect to this application, and ends on 27 April.

PN98

HIS HONOUR: Yes.

PN99

MR AGNEW: Now, if you suggest that it was not made from that, from 16 April, there is still material before you that shows that we met with the union on 26 April - which is the day before the vote finished and when it was declared - and we conferred with them. And if I can refer you to the statutory declaration of Mr Colby where there is a letter - well, first of all, attachment (i) which are minutes of a meeting held on 27 April.

PN100

HIS HONOUR: Yes. Just - just give me a moment. Attachment (i) - - -

PN101

MR AGNEW: Should be minutes headed, "Meeting Held on 27 April at Industrial Relations Commission Regarding Proposed Certified Agreement".

PN102

HIS HONOUR: Yes.

PN103

MR AGNEW: So there were discussions. That was followed up with a letter outlining the issues. And that letter was sent by Mr Colby, the General Manager, to the Assistant Secretary of the LHMU New South Wales branch - - -

PN104

HIS HONOUR: Just - just give me a moment to read these minutes.

PN105

MR AGNEW: Sorry, your Honour. We will go off the record for a moment.

OFF THE RECORD

PN106

MR AGNEW: I will just refer you further. There was, in a further letter sent to them, that is (k) on 11 May. That was in response to - we had left the door open for the union to come back to us with any further concerns, and we had not had a response by 11 May so the letter was sent. I will just refer you to that second case that I handed up, your Honour. If I can just refer you to it again, it is the Amy case, by her Honour Senior Deputy President Drake. The first paragraph of page 6, her Honour in the second sentence says - and this is the fourth line down:

PN107

The union's right to represent members consequent-

PN108

HIS HONOUR: Sorry, the second - where is it?

PN109

MR AGNEW: It is the first paragraph, top paragraph.

PN110

HIS HONOUR: On page what?

PN111

MR AGNEW: On page 6.

PN112

HIS HONOUR: 6.

PN113

MR AGNEW: Yes. This is of her Honour's decision.

PN114

HIS HONOUR: Yes.

PN115

MR AGNEW: If you go to the fourth line down it is the second sentence, which says - sorry, the third sentence:

PN116

The union's right to represent members, consequent upon request from individual members, ceases on the vote.

PN117

The argument is two issues, your Honour. I am arguing - my client is arguing that there really was not a request made, either in a formal or an informal sense, yet my clients still took the opportunity to sit down and talk to the union. But I am saying first of all, there was no request. The vote starts and finishes, the agreement is made, therefore the requests are no longer valid. Well, therefore, any request after that date is no longer valid.

PN118

HIS HONOUR: But the request by the union - it is in the documentation here. Where is it? It is - - -

PN119

MR AGNEW: Though the authorities look - your Honour - - -

PN120

HIS HONOUR: - - - (f) - - -

PN121

MR AGNEW: Again this is probably the point that this case goes to. Her Honour basically says that once you have made a request, the vote happens, that request does not last indefinitely.

PN122

HIS HONOUR: But the - there was an initial request was there not - sorry, there was an initial ballot - - -

PN123

MR AGNEW: - - - prior to the first vote. Prior to the first vote.

PN124

HIS HONOUR: But when was that ballot held?

PN125

MR AGNEW: That was held over the 19th and 20th.

PN126

HIS HONOUR: Of?

PN127

MR AGNEW: Of March.

PN128

HIS HONOUR: March.

PN129

MR AGNEW: And if you look at I suppose exhibit F or annexure F there is a letter from Mr Aaron Magnum to the hotel. In the second paragraph, I will just quote it for you:

PN130

The union reminds you the company was previously advised - appointed to act in this capacity.

PN131

Well, upon getting that on the 19th the hotel in fact did sit down, and if I can refer you to page - there is a five page transcript of discussions with the union on that day. The document is headed, "Minutes for meeting between Carrie White, Human Resources Manager, and union representatives."

PN132

HIS HONOUR: What is it, it is a recorded version?

PN133

MR AGNEW: That is right, there were minutes taken by the Human Resources Manager's assistant in shorthand and it has been typed up. CW obviously means Carrie White. The names are there up the top, who was present and who the initials stand for. So, what I am saying is that with respect to any request, in particular that request way back on the 20th, related to the vote conducted on the 20th, and that's what her Honour says, is that that request ceases on the next vote, it does not stay open for ever and a day.

PN134

Even if I am wrong, hour Honour, I would simply say that the hotel has still taken steps, even though there has not been a request, and met with the union on 27 April, held out for further meetings, and no response from the union and no presence here today. They have not indicated whether they want to be bound, whether they want to intervene in the process.

PN135

I would simply say that even if you reject my argument that there has not been a request before this ballot that I believe that the hotel has taken reasonable steps to meet the requirements of section 170LK(5), and it is not - well, in other words, we have met the requirements in order for you to approve the agreement. I should point out, those authorities are all dated February 2001, in fact one is dated February 2002. They are the authorities from three union members attached to the letter of 20 March which is exhibit F. If your Honour pleases.

PN136

HIS HONOUR: Yes, thank you. Mr - is it Taheri?

PN137

MR TAHERI: That is right.

PN138

HIS HONOUR: What do you want to say about the agreement and the process?

PN139

MR TAHERI: As far as I was aware and could see everything was conducted in a fair and just manner, I mean, as part of the staff there at the hotel, and it is in my best interests also that this goes and is done fairly, and I can see nothing wrong with it, your Honour.

PN140

HIS HONOUR: Was this negotiating group that you were a member of, you met on a number of occasions with the company management, did you go through the changes in the various penalty rates that would flow from the - - -

PN141

MR TAHERI: You mean the recent changes?

PN142

HIS HONOUR: Sorry?

PN143

MR TAHERI: Do you mean the recent changes, your Honour?

PN144

HIS HONOUR: No, the changes that there would be compared to the award rates.

PN145

MR TAHERI: Yes, your Honour, we did.

PN146

HIS HONOUR: Was the hotel previously covered by the award - - -

PN147

MR TAHERI: Yes, your Honour.

PN148

HIS HONOUR: - - - not by a previous agreement?

PN149

MR TAHERI: No, your Honour.

PN150

HIS HONOUR: So, this is the first agreement for the hotel, as I understand it?

PN151

MR TAHERI: Correct, your Honour.

PN152

HIS HONOUR: How many people were there in the group that you acted - Guest Services I think you come from, do you not?

PN153

MR TAHERI: Correct, your Honour, yes. Now, unfortunately week to week it would change due to work reasons or personal reasons. It total I believe we would have at the most up to about nine or ten, I believe, was the figures. That included - - -

PN154

HIS HONOUR: Are you the front office staff?

PN155

MR TAHERI: Am I, sorry?

PN156

HIS HONOUR: Are you front office staff?

PN157

MR TAHERI: Yes, I am, your Honour, yes.

PN158

HIS HONOUR: So, Guest Services is front office.

PN159

MR TAHERI: Yes, your Honour.

PN160

HIS HONOUR: There was a previous ballot which was taken?

PN161

MR TAHERI: Yes, your Honour.

PN162

HIS HONOUR: And that was held - who conducted that ballot?

PN163

MR TAHERI: Actually, I did, your Honour, as returning officer of that particular vote.

PN164

HIS HONOUR: You were the returning officer?

PN165

MR TAHERI: Yes, your Honour.

PN166

HIS HONOUR: And what - there was a majority against the agreement at that stage?

PN167

MR TAHERI: There was a slight margin against, yes, your Honour. Again, as - - -

PN168

HIS HONOUR: A slight margin meaning - what sort of return rate did you have? How many ballots, do you remember?

PN169

MR TAHERI: In total it was in the 160s, your Honour. I cannot remember the exact figure. It was in the 160s in total votes conducted because the vote was actually conducted at the hotel.

PN170

HIS HONOUR: I see.

PN171

MR TAHERI: Where our union were present.

PN172

MR AGNEW: Your Honour, I can assist, if you wish.

PN173

HIS HONOUR: Yes.

PN174

MR AGNEW: The result was 75 against, 63 for, and there were four informal.

PN175

HIS HONOUR: Yes. And what were the circumstances regarding the second ballot? That was a postal ballot, was it?

PN176

MR TAHERI: Yes, your Honour, that was conducted outside of the hotel. The only part in which the hotel actually took in that particular vote I believe was to provide a scrutineer for that vote, where the vote was sent to each person's home address, of course, and without duress and so forth of union or anybody, or for the hotel for that matter, were able to cast their votes and make up their minds over a two week period and return them through post, return the votes through post.

PN177

HIS HONOUR: So, the hotel staff were fairly evenly divided, it would seem, about those who wanted and those who do not want this agreement?

PN178

MR TAHERI: Yes, your Honour. Unfortunately, due to certain focus group members dropping out and so forth maybe the message was not sent across to all staff originally, although since then it has been, which may have something to do with that first vote. It was still rather raw and so forth, I felt, the original vote. I did not think that all staff had a full grasp of the concept because there was still so many questions floating around even after the first vote. But since then I believe that those questions have been answered and the second vote showed that with the turnaround.

PN179

HIS HONOUR: What were the main concerns?

PN180

MR TAHERI: The main concerns were the pay difference and the weekend rates and the public holiday rates, and so forth. It had to be explained to them the differences and so forth, and sick leave. It was mainly monetary reasons various staff were worried about originally. They were the main problems, your Honour, but once, your Honour, once it was shown and realised by staff that they had the option of staying with the base and loaded - or choosing to go to the loaded rate, they were quite happy with that.

PN181

HIS HONOUR: But they cannot stay with the base, can they?

PN182

MR TAHERI: I am sorry?

PN183

HIS HONOUR: They cannot stay with the base, can they?

PN184

MR TAHERI: They had - there was one point - Mr Agnew.

PN185

MR AGNEW: There is a choice, your Honour.

PN186

MR TAHERI: They do have the choice.

PN187

MR AGNEW: Yes. At - if I can get - - -

PN188

HIS HONOUR: What they - but they cannot stay with the base and get the weekend penalties.

PN189

MR AGNEW: Yes, that is the intention, your Honour. At 3.3.5, the question is, "Who decides whether you will be paid base or loaded hourly rate for all associates employed" - so all existing staff have a choice. Now, if you choose the base rate, your Honour, 3.3.6 comes into play where the Saturday they get a 25 per cent penalty, Sunday they get a 75 per cent penalty, public holidays they get their usual 150 per cent for all of the public holidays. If your Honour pleases.

PN190

HIS HONOUR: So they are the normal - they are the award rates for those holidays, are they?

PN191

MR AGNEW: Equivalent to if not slightly better than, yes. And I should say that is the entry rate. Most of the existing staff will go on to the mid-point, so in fact a lot of them will actually be 3 per cent above the award.

PN192

HIS HONOUR: Yes. Now, in your declaration, there is a question here that asks about if the agreement will result in a reduction in the overall terms and conditions of employment, are people covered by it, and you say, "No, not as far as I am aware".

PN193

MR TAHERI: Sorry, your Honour, that point number?

PN194

HIS HONOUR: This is a statutory declaration at 6.2 - your declaration, so why did you add those words?

PN195

MR TAHERI: I wrote that because as far as I am concerned, or as far as I am aware, no, we will not be at a reduction, so, your Honour, there would not be a reduction for us, as far as I am aware, your Honour.

PN196

HIS HONOUR: And you have gone through the agreement and compared what you might be entitled to under it?

PN197

MR TAHERI: Yes, your Honour.

PN198

HIS HONOUR: And you are satisfied that there will not be a reduction?

PN199

MR TAHERI: Yes, your Honour.

PN200

HIS HONOUR: And the other people who were selected to negotiate the agreement, do you know what their position is?

PN201

MR TAHERI: I have spoken to - not all, several members. We have argued the points that we have not been happy with, throughout the meetings, your Honour. There have been changes along the way. As far as I do know, your Honour, the members that I have spoken to you are relatively happy with the agreement, as far as I do know.

PN202

HIS HONOUR: Yes, thank you.

PN203

MR TAHERI: Thank your Honour.

PN204

HIS HONOUR: Mr Agnew, are you aware as to whether the union was aware of the proceedings today?

PN205

MR AGNEW: We have had no communication with the union. We did get a response, I should say, to the letter of the 11 May, but we have really had no communication, so all I can say to your Honour is there is a public list. I become aware of these things by looking at that list on the internet most of the time. All I can simply say to you is I am not aware of whether they were aware. There has been a lot of proceedings associated with this application.

PN206

I should point out to you as a result of the first ballot, there were applications made under section 285 of the Act to revoke two union representatives right of entry permits who - and further to that we had a dispute hearing before Senior Deputy President Williams, so they are aware that we are doing this document. They were aware that we were going to file it after a particular day, which was the 11th, we held that out to them so, I mean it is a question of contacting the Registry, your Honour.

PN207

I think the usual process is for unions to write letters to the Registry to ask them to advise them of the hearing date. It is not encumbered upon myself - we did make the employees - I should say aware of these proceedings today via Mr Taheri. He was given a copy of your notification. All I can simply say to you is that if they were not aware then there was enough information out there for them to be aware. I should point out in the listing today that there are a number of applications before your Honour concerning the LHMU, so if they did not become aware prior to today, they certainly should have become aware today by looking at the listings. If your Honour pleases.

PN208

HIS HONOUR: Yes, I am concerned in relation to the provisions of the Act which allow intervention, section 43 subsection 2. I also take the view that the agreement is one of those which I consider to be near the borderline in terms of the no disadvantage test, so I would prefer to have whatever undertakings the company is going to provide in writing. That would include the undertakings about those rates that you refer to. In view of the provision of 43(2), I also would prefer to adjourn this matter for a couple of days so that there can be no question that the union was not given appropriate notice of the proceedings.

PN209

The view that I am taking is that given that there is a requirement in that subsection for the Commission to grant leave to intervene in a matter, if it has been requested by an organisation that employees have requested to represent them in accordance with section 170LK, it is appropriate for us to give a notification to the union specifically regarding the proceedings. It might seem a formality at this stage, but it could be a basis on which if I was to proceed to certify the agreement as I would say is my inclination, without going to that step, there could be proceedings elsewhere to have that certification set aside.

PN210

MR AGNEW: Your Honour, then may I suggest just a similar - I suppose the wording is a guillotine order - that after a cooling off period, let us say, that if you do not get contacted, that that certification should be given, rather than another appearance before you?

PN211

HIS HONOUR: Yes, I think probably the best is simply to set it down, and then to proceed to deal with it on that day.

PN212

MR AGNEW: Certainly, your Honour. I will just simply indicate to your Honour - I will reserve my clients rights in respect of that ruling, because in my submission I do not believe the Act requires you to do that - requires the provisions of section 170LT are clear that if you believe that the agreement meets the statutory tests then you should approve it. It uses the words, "must", and section 43(2) is only a provision that is available on application. There is no application before you today - I am just a little bit concerned - I take on board your comments, but I would like to reserve my clients rights in respect of any ruling of that nature.

PN213

HIS HONOUR: Well, it is not a ruling, it is simply an indication of how I intend to proceed to - with the consideration of this matter. I have indicated I want the undertaking in writing - that I intend to adjourn the proceedings until I receive that. The advice - the notice of listing required that you notify the employer and the employee representatives of the listing. Was that done in relation to the other employees who were involved?

PN214

MR AGNEW: A copy of the listing was given to Mr Taheri. I will have to get instructions as to whether the focus group - it was only Mr Taheri that was advised. I am fairly much reliant upon what Mr Taheri must have told other people. I am trying to actually get a copy, your Honour, if you can bear with me for a minute. Your Honour, my client is quite prepared to give the undertaking as you have indicated, then it is just a question, I suppose of how long you wish to delay or adjourn this process.

PN215

HIS HONOUR: Yes. Well, I would prefer to see the undertaking in writing and to have those rates that need to be recalculated, recalculated. I am intending to call it back on on Thursday for this week. I can call it on in the morning or the afternoon.

PN216

MR AGNEW: I have a difficulty personally, but I will rearrange things so that somebody else is here. I will not myself be here.

PN217

HIS HONOUR: Yes.

PN218

MR AGNEW: I have other things on, sorry, your Honour.

PN219

HIS HONOUR: Well, I could call it on on Friday.

PN220

MR AGNEW: If you could just bear with me for a minute, your Honour, sorry.

PN221

HIS HONOUR: I could call it on some time next week, as well. I just think if I call it on tomorrow, it is too early. I could call it on Wednesday, but that might be too early, too.

PN222

MR AGNEW: I would prefer - you would be more comfortable with a longer time. There is no great hurry, but I would like - my client does wish to get this thing brought to finality because there are questions of pay increases to employees that they need to consider. What time on Thursday, your Honour, you were looking at?

PN223

HIS HONOUR: Well, I can call it on nearly any time, so long as the time is reasonable. I mean, I can call it on at 9.30, if you want it in the morning. I can call it on at 1 o'clock, or I can call it on at 4 o'clock, or I can call it on at a more regular time, 10 o'clock or 2 o'clock. It might be that the hearing will not be very long. I mean, my concern is that it might be that the union is not aware of the proceedings, in which case it could argue that it has not been notified of a set of proceedings that it might have been entitled to have some notification about. If it is duly notified and it does not choose to turn up for the proceedings, then I suspect that there is no need for any further submissions, apart from handing up the written undertakings.

PN224

MR AGNEW: Is Wednesday too early, in your view, your Honour?

OFF THE RECORD

PN225

HIS HONOUR: Yes, as I indicated, I intend to call this matter back on. It will be called back on at 9.30 on Thursday morning, 31 May. The company should take steps to advise the other employee representatives that that is when the proceedings will be before the Commission, and in the notice of listing that the Commission sends out, we will forward a copy of that to the Liquor and Hospitality Union, in addition to forwarding it to the company. Yes, this matter will now be adjourned until that time.

ADJOURNED UNTIL THURSDAY, 31 MAY 2001 [4.45pm]