AG2001/5601, Transcript of Proceedings [2001] AIRCTrans 3647 (24 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2001/5601

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Shop Distributive and Allied Employees
Association-Western Australian
Branch and Another for certification of
the Hungry Jacks Employees, SDA Enterprise
Agreement 2001

PERTH

10.26 AM, THURSDAY, 6 DECEMBER 2001

PN1

MR T.J. POPE: I appear on behalf of SDA, sir.

PN2

MR J. BUTLER: I appear on behalf of Hungry Jacks, sir.

PN3

THE DEPUTY PRESIDENT: Thank you, gentlemen. I don't think I need to go through the agreement in any detail. The stat dec - the stat decs have been filed and lodged and they are all in conformity with the requirements of the legislation. There is one issue that I would address to both of you and that I did indicate to you and foreshadow that I would be raising this issue, and it's with respect to clause 42 of the proposed agreement and, in particular, subclause (2).

PN4

Mr Pope, you would be aware from a previous matter that I raised this issue with another agreement and issued a decision with respect to that agreement - that's print 911888 the certification of it and 911869 the reasons underlying that. So I just ask the parties, given the outline of what I would be requiring for provisions of that nature, if they could address me on how that subclause is to apply.

PN5

MR BUTLER: Should I explain our process sir?

PN6

THE DEPUTY PRESIDENT: Yes.

PN7

MR BUTLER: Each individual restaurant manager hires their own staff and they have approximately 60 employees in each outlet. When they choose a future employee they give him a number of forms which he has to fill out and bring with him on his first shift and, amongst those, are a application form to join the SDA. The managers recommend the SDA and explain what the SDA does and how much it will cost them to be a member. The manager then asks the employee to discuss it with their family before they come back to start work. We have approximately 50 per cent of our employees as union members and there certainly is no coercion of - in making them belong to the union.

PN8

THE DEPUTY PRESIDENT: See the issue I have, as a requirement of the Act is that I must refuse to certify an agreement if I form the view that provisions in the agreement have the effect of discriminating against or in any way prejudicing an employee or a potential employee with respect to their employment because of union membership or lack of union membership. Now, I can - as I did in the Woolworth's case - accept that, when the approach is made or the recommendation is made, it is made post the actual engagement of the employee, that it would not have an effect of prejudicing or the employee forming a view that it would impact on their opportunity for employment, that they were in any way related.

PN9

Because the promotion occurs post-engagement, but what you're saying is quite different to that and it concerns me that an individual applying for employment, particularly if they're young people, at the same time as union membership is promoted, does that have the effect of that potential employee believing that their potential employment would be in jeopardy by relationship or lack of a relationship with the union. That's my concern.

PN10

MR BUTLER: I understand your point, sir. I think what we would - - -

PN11

THE DEPUTY PRESIDENT: So, what I need from you is to why I should not have that concern.

PN12

MR BUTLER: I think the managers make it quite clear that it's purely up to them whether they join the union or not and I mean we've had similar clauses, I guess, for a number of years and our membership, as I say, is around 50 per cent so I think that sort of points out that, you know, there is no coercion on our part at all.

PN13

THE DEPUTY PRESIDENT: See, one of the options open to me is if I still have concerns and at this point there really has been nothing that has been put to me that would dissipate entirely that concern, one of the options available to me is to accept an undertaking from any of the parties as to how that clause is to apply. Given what you've outlined as your process what I would suggest to you that, along with the documentation of union membership that is provided to the potential employee, a document is provided or a statement is provided, in writing, to the potential employee that their potential employment will, in no way, be affected by their decision to join or not join a union or the union.

PN14

Does the company or do you want to reflect on that? Would Hungry Jacks be prepared to make that undertaking? If they do, I have no difficulty in certifying; if they don't - - -

PN15

MR BUTLER: Well, I'm sure - I don't think that's a problem, sir. I think it's probably happening now. I do believe that the managers do make it quite clear that they don't have to join the union and we obviously like them to discuss it with their parents as well, so.

PN16

THE DEPUTY PRESIDENT: So if you're providing documentation about union membership and you're encouraging them, as you probably should, to discuss their potential employment and their potential union membership with their parents or guardians, now I think it appropriate that you provide documentation that their employment isn't affected and won't be affected by their membership or lack thereof of the union rather than just verbal.

PN17

MR BUTLER: I think just one point I guess is that they have been employed before they actually fill out that - when they are accepted for employment then they are given the forms so they've actually have been hired and - - -

PN18

THE DEPUTY PRESIDENT: So the forms are provided after they are actually hired, are they?

PN19

MR BUTLER: They're hired and the forms are given to them.

PN20

THE DEPUTY PRESIDENT: Because that's not what you said earlier.

PN21

MR POPE: Well, that's what takes place, sir.

PN22

THE DEPUTY PRESIDENT: Can you stand when you address me please Mr Pope?

PN23

MR POPE: Yes, that is what takes place, sir, excuse me.

PN24

MR BUTLER: Yes. Sorry, didn't I make that quite clear? When they actually are employed - - -

PN25

THE DEPUTY PRESIDENT: Well, can I ask you then - I'll adjourn this matter. What I'll ask is you provide me with some documentation as to what the explicit process is. If it's as you just outlined, then I will certify the agreement without the requirement for an undertaking.

PN26

MR BUTLER: Right, sir.

PN27

THE DEPUTY PRESIDENT: If it is different to that, then I will consider what options are open to us and I will await that advice from you, Mr Bishop. This matter is adjourned.

ADJOURNED INDEFINITELY [10.34am]]