AG2001/4980, Transcript of Proceedings [2001] AIRCTrans 2604 (3 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 0227
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

AG2001/4980

CERTIFICATION OF AGREEMENT

Application under section 170LK of the Act
by Glen Cameron South Australia Metro
for certification of agreement with employees
(Division 2)

MELBOURNE

12.06 PM, THURSDAY, 13 SEPTEMBER 2001

PN1

THE COMMISSIONER: I will take appearances please.

PN2

MR G. ROHAN: Glen Rohan from the Glen Cameron group.

PN3

THE COMMISSIONER: Sorry?

PN4

MR ROHAN: Glen Rohan for the Glen Cameron group.

PN5

THE COMMISSIONER: Thank you, very much. You are an employee of the company, are you?

PN6

MR ROHAN: I am the group operations manager.

PN7

THE COMMISSIONER: Thank you.

PN8

MR M. BENTLEY: Mark Bentley, from the Glen Cameron group.

PN9

MR S. JOHNSON: Simon Johnson from the Glen Cameron group.

PN10

THE COMMISSIONER: Yes, Mr Rohan, if you would address me in relation to - I don't know whether you have been through this process before or not?

PN11

MR ROHAN: Commissioner, I have been a bystander, I suppose, so I am a new boy at this.

PN12

THE COMMISSIONER: We will take it as we go. Those microphones do not amplify your voice. All they do is record on tape and there is a transcript produced so as I am partially deaf, if you would just stand and talk if you would on the basis that you have this person in front of you who is not - does not have acute hearing, you will be fine so no need to lean over and talk into the microphone. Well, basically, Mr Rohan, what you are seeking is the certification of this agreement. As I understand it, the agreement covers 13 employees and the agreement was voted on by the employees on 17 August, is that correct?

PN13

MR ROHAN: That is correct.

PN14

THE COMMISSIONER: Then it was lodged by you or someone else in this place on 21 August. Having looked at your statutory declaration, I am not sure it is yours but - yes, it is yours, I am sorry, you have indicated there is a reduction in conditions contained in this award - sorry, in this agreement as compared with the award and that relates to the 20 minute crib break and the next issue that you have sighted, this is at paragraph 6.3 of your statutory declaration, that - I has got "now inclusion" I think it means "non inclusion" of irrelevant award clauses for special allowances such as dirty work handling coffins, carrying livestock etcetera.

PN15

MR ROHAN: Yes, that would seem to be a type error, yes.

PN16

THE COMMISSIONER: Now, what type of transport do you actually do in the metropolitan area of South Australia?

PN17

MR ROHAN: We do just general transport. Got some customers, some white goods, bedding and just general freight which can be picked up from our interstate division so it is general type freight. It is certainly nothing to do with coffin handling or any of those type of issues or dirty work or anything like that so we just excluded them from the award. If I could probably tell the Commission this agreement is along the lines of our divisions in both New South Wales and Queensland which we have had certified to so it is probably just trying to get all of our division on sort of the same agreement. Those other two have been already registered.

PN18

THE COMMISSIONER: Do you know who they were certified by and when? I can find out, I just - - -

PN19

MR ROHAN: Commissioner, no, sorry, I don't remember.

PN20

THE COMMISSIONER: That is fine. There is also a reduction in - well, you have removed meal money when overtime is worked. So what, on a weekly basis, is the effect of the crib break - it would have been a paid crib break, wouldn't it, of 20 minutes?

PN21

MR ROHAN: Yes. The quantum of both the crib break and the meal allowance is not significant. I suppose because our head office is in Bayswater in Melbourne it is a bit of a nightmare to control for administration-wise and that is why we wanted to simplify that process, if we could and obviously, as you will get to it further in the document, we have made some provisions for other things to compensate for that but in general the compensation that we are offering as far as bonuses to the people would far outweigh the monetary disadvantage of the crib break and the tea money - meal money.

PN22

THE COMMISSIONER: What do you see as those benefits?

PN23

MR ROHAN: All our people in that operation have fork-lift licences and there is a special attachment that we use to handle the white good product that, under the award, does not have any allowance for it. It is still classed as a grade 3 function. We put a dollar increase per hour on that function in order to compensate for the loss of the other two issues.

PN24

THE COMMISSIONER: So that is $40 additional.

PN25

MR ROHAN: $38 per plus, of course, any - - -

PN26

THE COMMISSIONER: Sorry, $38, yes.

PN27

MR ROHAN: - - - overtime they do, they get that allowance through that as well.

PN28

THE COMMISSIONER: Right. In relation to the actual rates of pay, I had a quick look and I am not sure, do they reflect the current award rates or are they higher than the award rates?

PN29

MR ROHAN: The current award rates, yes. That is the Federal award.

PN30

THE COMMISSIONER: Sorry?

PN31

MR ROHAN: They reflect the Federal award rates.

PN32

THE COMMISSIONER: There is no proposal to - wait a minute, sorry. I missed clause 13 when I reads it this morning, it is all right. There is a process for adjusting it either by the 2 per cent or the national wage adjustment.

PN33

MR ROHAN: Whichever is the higher, Commissioner.

PN34

THE COMMISSIONER: Thank you. The only other clause I had some question about was in relation to clause 17, specified period of employment. I know this clause has been agreed upon but I assume - sorry, it seems to me, under the first paragraph of that clause, it would be possible for someone in fact to be given 11 months contract followed by another 11 months contract followed by another 11 months contract. In other words, it could go on forever but in fact the person would never ever become full time pursuant to the definition in clause 17(b), is that a correct interpretation of that clause?

PN35

MR ROHAN: It is certainly not our intention, Commissioner. I am failing, probably, to grab you. The full-time clause is a person who is obviously full time. If you are going for a specific period of employment, is that your query?

PN36

THE COMMISSIONER: Yes.

PN37

MR ROHAN: That is for somebody who may cover for periods like maternity leave or something like that and the intention is that would be a short-term coverage to cover somebody who may have some issues with paternity leave or something like that, certainly not our intention to hire people on that type of arrangement of 11 months sort of thing.

PN38

THE COMMISSIONER: Right.

PN39

MR ROHAN: We would be happy if you wanted to put something in the document to that affect, it is not an issue for us.

PN40

THE COMMISSIONER: The fact that you have put it on the record and you give that as an undertaking, I will just arrange for the transcript to go with this agreement, that is fine. I mean, the only reason I raised that concern was that there is references in that clause in relation to unfair termination which I was just wanting to say to you that whilst there is something in the agreement that can't, of itself, override the provisions of the Workplace Relations Act 1996 and so whilst the last clause says a specified employee - under 12(d) last paragraph it says:

PN41

Specified employee. No entitlement to bring an unfair dismissal claim.

PN42

The reason that I was raising that issue was certainly that is true in circumstances where there is a clear specified period at the outset but in circumstances where that, how do I put it, recycling, and I don't mean that in a - it is the only thing that comes to mind where you are putting someone on short term contracts and rolling them over, rolling them over, rolling them over. There may be some issue about that at law. I am not going to indicate what the law is but I am just indicating. Your answer and the undertaking you have given satisfies me in relation to that. Mr Bentley, is there anything you wanted to - you are not here to - - -

PN43

MR BENTLEY: No, I am just an observer.

PN44

THE COMMISSIONER: Fine. Mr Johnson, is there anything you wish to say?

PN45

MR JOHNSON: No.

PN46

THE COMMISSIONER: I take it both you, Mr Johnson and Mr Bentley, are affected by this agreement?

PN47

MR JOHNSON: Yes.

PN48

MR ROHAN: Indirectly it does not have a great affect on myself.

PN49

THE COMMISSIONER: It does not apply to the way you work?

PN50

MR ROHAN: No.

PN51

THE COMMISSIONER: Fine. Well, Mr Johnson, perhaps I will just ask you, in relation to the processes of consultation, I take it that - perhaps, are you prepared to give evidence about the process? You have not sworn a statutory declaration in relation to this process?

PN52

MR JOHNSON: No, we have just talked about at work and we agreed.

PN53

THE COMMISSIONER: Okay. I will just ask you from the bar table and if there is any disagreement with what you say from Mr Rohan then I will need to put you in the witness-box. In relation to the process, I take it the company produced the agreement provided to each of the employees and asked you what your views were?

PN54

MR JOHNSON: Yes, they did and we agreed.

PN55

THE COMMISSIONER: Would you have had 14 days in which to consider the agreement?

PN56

MR JOHNSON: Yes.

PN57

THE COMMISSIONER: Did the company advise you that if you wanted to you could seek the assistance of a registered organisation?

PN58

MR JOHNSON: Yes.

PN59

THE COMMISSIONER: Fine. Thank you very much for that. Well, in light of that helpful additional submission, I am satisfied that the requirements of the Workplace Relations Act are met in relation to this agreement, the no disadvantage test is met on balance and therefore I must certify the agreement and I shall do so. I hope you did not find the process to harrowing. My associate will give you a sealed copy of the certificate once we adjourn, which I now do. This matter is adjourned.

ADJOURNED INDEFINITELY [12.20pm]