AG2001/554, Transcript of Proceedings [2001] AIRCTrans 489 (6 April 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 6443
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2001/554

APPLICATION FOR CERTIFICATION OF
AGREEMENT

APPLICATION UNDER SECTION 170LK OF THE ACT
FOR CERTIFICATION OF THE NATIONAL LOSS
PREVENTION CERTIFIED AGREEMENT

MELBOURNE

9.04 AM, TUESDAY, 20 MARCH 2001

PN1

MR R. GRAHAM: I appear on behalf of the applicant, National Loss Prevention, in this application, together with MR P. DROST, State Manager for National Loss Prevention, and MR Y. CHOPRA, who has been appointed as the elected staff representative through this whole process.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN3

MR GRAHAM: Your Honour, this is an application made under Division 2, making agreements with constitutional corporations or the Commonwealth, of Part VIB of the Workplace Relations Act. This proposed agreement is a certified agreement with employees about matters pertaining to the employment relationship between the employer, National Loss Prevention Pty Ltd, trading as National Loss Prevention, and its employees who are involved in the security industry.

PN4

This process has been followed in accordance with the procedures under section 170LK of the Act. The documents which have been served upon the Commission with this application are quite substantial. There is the standard application form under the signature of Mr Drost. We have also attached the statutory declaration from Mr Drost and Mr Chopra.

PN5

I would indicate to the Commission that the processes that were followed commenced in October 2000. The employer at this time - it was around the same time that they received a log of claims from the Australian Liquor Hospitality and Miscellaneous Workers Union. The employer sent out a notice calling for expressions of interest from the employees for anybody who would like to be nominated as an elected staff representative. Mr Chopra was nominated by the employees. There were no other nominations received, and so Mr Chopra was elected unopposed.

PN6

Then on 28 December a general staff notice was sent out to all the employees advising them that there would be a general staff meeting commencing on Friday 5 January at 2 pm at the offices of National Loss Prevention. Accompanied with the agreement was a copy of the section 170LK notice advising the employees of 14 days in which discussions would take place, and at the completion of the 14 days there would be a secret ballot.

PN7

During that 14 day period the employees were advised that those who were unavailable to attend that meeting, the employer would be conducting a series of information sessions and meetings in order to explain the process of how the agreement operated. We say that the agreement as far as the process has been followed, that there be a secret ballot as witnessed by Mr Chopra and also by Mr Drost, and was later witnessed by an officer of the Victorian Police Force, indicates that of those who voted it was 100 per cent approval of those who cast their ballot papers.

PN8

During the 14 day notice period nobody called upon any officials of the union to come and represent them, but we would indicate that some 2 weeks after the agreement was made and had been lodged with the Commission, the employer did receive a phone call on Thursday 1 February from an officer of the Australian Liquor Hospitality and Miscellaneous Workers Union indicating they were aware an agreement had been made, and there was a possibility that they may present this morning seeking to oppose the agreement, but we note that nobody has presented.

PN9

On the basis of the statutory declaration that is before you, your Honour, we would ask that this agreement be given due consideration. We do appreciate that the Commission does like to take some detail, and may want to ask some questions regarding the process of the agreement. The agreement is for a period of some 36 months. It does have dispute procedures involved in it. It does have a provision that in the event the organisation were to be sold or bought out by another organisation, that the terms and conditions of this agreement would be assigned over to the new employer, so that the terms and conditions negotiated with these employees would transfer over.

PN10

We would ask that the Commission look favourably upon this application, and accordingly we would ask that if there are any further questions or anything that needs to be answered, we would be prepared to answer those for you.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. I recollect that I made a roping-in award or at least announced that I intended to make one, following the service of a log of claims on the company by the union. My recollection is that I wrote the company into both the Security Industry Victoria Award and the Security Employees State Government Departments and Instrumentalities Award.

PN12

MR GRAHAM: Your Honour, the decision that we have here dated 25 January from yourself, my reading of that is that the employer was roped into the Security State Government Departments and Instrumentalities Victoria Interim Award 1993. I do note there, if I may be permitted, page 5 of your Honour's decision states:

PN13

The SGDI Award is one that is used by employees when tendering or bidding for work.

PN14

The advocate who was representing the employer on the last day of the hearing that was before your Honour on Monday 15 January indicated that - I just read here from your decision, your Honour, at paragraph 19 which states: "There is one final issue which I need to address" - this is from your Honour. "Mr Molnar" - that is the person representing National Loss Prevention:

PN15

... indicated in his submission that the roping-in award should not be made because his client would not have any employees covered by it.

PN16

We would indicate that my client does not actually tender for work within State Government or instrumentalities as such. We bear in mind that in the event that they were to do this, then obviously the relevant award in that situation would be the one that they have been roped into: but for the purposes of this agreement, the award that we have proposed be used as the most relevant - and bear in mind that this agreement was circulated to the staff on 5 January, so it was actually ahead of the hearing on 15 January - we have in fact used the State Victoria Employees Award of 1998.

PN17

I have only gone over this decision on the weekend, your Honour, and I would hope that there would be no impediment to this agreement being approved, because it is relative if I can put it to the private sector, and the employer provides services, for example, in shopping centres, to major events, and the like: whereas if it was to do with State Government Departments and instrumentalities, we would really be looking at anything from tertiary institutions, to Government departments, and buildings, and so on, and the employer does not provide services in that particular area.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. Now I understand from the statutory declaration that at least at the time that was signed there was some 23 employees, of which 10 were part-time and 6 were casuals?

PN19

MR GRAHAM: That is correct, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Is that still the make-up of the - - -

PN21

MR GRAHAM: It may have varied slightly since the agreement was made. I think that was at the end of January. It does vary from time to time, but that is pretty consistent.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, because of turnover of employees.

PN23

MR GRAHAM: Correct. And I can also indicate that if there are major events on from time to time, such as the Grand Prix, and so on, that big organisations such as Chubb do contact those that are slightly smaller to ask if they will provide other employees. It will vary.

PN24

THE SENIOR DEPUTY PRESIDENT: All right. Well, Mr Graham, I am not satisfied that the agreement passes the no disadvantage test. I will indicate the particular concerns I have, and you are well aware that you will then have an opportunity to consider the provisions of the Act, and in particular section 170LV, about the giving of undertakings to meet my concerns, or, in the alternative, your ability to run a public interest argument under section 170LT(3).

PN25

The particular concerns that I have are that the agreement is to run for a period of three years, and the only safeguard that employees have is that during that time there will be no loss in ordinary time rate of pay. The provisions of clause 10.1 being expressed as an annual salary do not adequately compensate for the loss of penalty and overtime rates. The provisions of clause 12 refer to no span of hours clause, and just refer to an amount of hours of work. I do not think I need to go beyond those clauses to indicate that they do not, in my opinion, pass the no disadvantage test.

PN26

You are aware of the several decisions that I have issued, Mr Graham, so I will not refer to them. You can advise your client about them, and what your client might need to do to satisfy me that the agreement should be certified. Unless I hear from you further - well, if I hear from you further, I will of course consider how this matter should be dealt with. If I do not, I would intend to refuse certification of the agreement.

PN27

MR GRAHAM: If it please your Honour. Obviously, other matters that I have appeared before your Honour, this agreement has been prepared on or around the same time, so the changes that I have put into another one that is pending upon decision would have already been incorporated into this, so I wasn't trying to mislead the Commission on that. I just wish to put that on the record.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. I am not suggesting that. It still falls short, Mr Graham. So on that basis I will just adjourn to a date to be fixed, and you really have liberty to apply to either send in correspondence to persuade me as to what I should now do, or, alternatively, ask that the matter be listed again in the near future. I will be in Melbourne quite a good deal, so there should be no particular delay in listing it again, if that was your request.

PN29

The Commission now adjourns.

ADJOURNED INDEFINITELY [9.15am]