C2415/200, Transcript of Proceedings [2001] AIRCTrans 58 (22 February 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C NO 24152 OF 2000

APPLICATION FOR CERTIFICATION OF AGREEMENT
(UNION - DIVISION 2)

APPLICATION UNDER SECTION 170LJ OF THE ACT
BY FRESCO SUPERMARKETS PTY LIMITED AND SHOP,
DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
FOR CERTIFICATION OF THE FRESCO SUPERMARKETS INTERIM ENTERPRISE AGREEMENT 2000

SYDNEY

1.55 PM, WEDNESDAY, 7 FEBRUARY 2001

ADJOURNED SINE DIE

PN1

THE COMMISSIONER: Yes, could I have the appearances, please?

PN2

MR R. MIMMO: If the Commission pleases, I seek leave to appear, just to be on the safe side.

PN3

MR G. DWYER: If the Commission pleases , I appear for the Shop, Distributive and Allied Employees Association.

PN4

THE COMMISSIONER: No objection to Mr Mimmo's appearance, Mr Dwyer?

PN5

MR DWYER: No objection, Commissioner.

PN6

THE COMMISSIONER: Leave is granted, Mr Mimmo. Yes, Mr Mimmo?

PN7

MR MIMMO: Commissioner, perhaps just a little bit of introduction. Fresco Supermarket is a new player in the supermarket chain, operates in New South Wales at the moment, has approximately 18 stores and trying to grow beyond that, at some stage hopes to go interstate but its purchasing the old Jewels stores from the previous owners of Davids called Vetrone so it is relatively new, it has been operating roughly two years, Commissioner, and perhaps if I just go over the agreement, just background.

PN8

Commissioner, it inherited the previous agreement called the Jewels, New South Wales and Australian Capital Territory Enterprise Agreement 1997, and that was certified before this Commission in C No 24240 of 1997 and the nominal expiry date of that agreement was 1 November, 1999. So as a result of that the parties entered into a form of negotiations and what my client in fact put on the table pretty early in the negotiations that it did not want protracted negotiations in the sense that it wished to get on with the business of trying to find out it's pattern of trading and to settle the business down. As a result, as we drew towards the end of November the employer made an offer to the union that without any further negotiations would the employee organisation agree to a rollover of the agreement with just two changes, well essentially two changes and a minor change to a third clause.

PN9

What the employer proposed is that there be a 1.5 per cent wage increase on the adult male employee and to flow over to the junior rates as well. I'll go over the increases if you like in a moment, Commissioner.

PN10

THE COMMISSIONER: When you said adult male you mean adult don't you?

PN11

MR MIMMO: Adult, sorry, adult employees, I should've said that. I withdraw that, Commissioner, thank you. I see I'm getting dirty looks too from different quarters of this Commission, deservedly so too, Commissioner, perhaps. So there was a 1.5 per cent wage increase on the adult employee to all categories of the employee class as well. In addition to the changes to the wages which will be found on schedule 1 there was also a change to the previous agreement at clause 3 where the name Fresco Supermarket now appears and before it was the Jewel Supermarket chain that appeared. To bring to the Commission's attention another clause that was altered by consent with the parties can be found at clause 55 which deals with the term, union recognition.

PN12

At that paragraph (a) of clause 55 in the first line, Commissioner, you will see the word, and I'll just quote from the first line:

PN13

The company recognises the union as being the union that has representation of ...

PN14

In the previous agreement that word "representation", the word used was "exclusive", so the word "exclusive" has been removed and the word "representation" affixed thereto. So, apart from those two matters, Commissioner, there's been no other changes to the agreement and as a result I can report to the Commission that there's been no detriment at all to the employees. In fact, the benefit of 1.5 per cent increase and an agreement which is due to expire on 1 May, 2001, that can be found at clause 3 of the proposed agreement.

PN15

Perhaps if I follow now from the wages, Commissioner, and ask you to turn to schedule 1 on page 64 of the document before you. If I just concentrate on the adult figure, firstly, for shop assistants. Whilst this new agreement proposes a wage of $480.80 that's an increase from $473.70. If we go down to the butchers column it now shows $528, that's an increase from $520.20. Pastrycook is identical to that currently paying $528, previously $520.20. Security is now paying $480.80, previously $470.70 and with cleaners is now paying $455.60, previously $448.90. That's an indication that the company offered and the employee organisation accepted that the 1.5 per cent would maintain the living standards for the six months of the agreement and that that is a rise about the CPI threshold.

PN16

So there was no detriment at all I'm pleased to report. Other than that, Commissioner, to satisfy the requirements of the Act in terms of section 170LT(5) there was a valid majority of employees that voted, an overwhelming majority. Perhaps Mr Dwyer has got precise figures but my instructions are it was a very overwhelming majority. In terms of section 170LT(7) the category of employees is dealt with in the statutory declaration of the employer at part 6.5, it gives a breakdown of the category of employees. There was no disadvantage in terms of explaining to those employees the nature of the agreement, there was a copy of agreement circulated to every workplace with ample opportunities for each of the employees to participate in requesting of the employer any information that they required in terms of explanation or in terms of comments.

PN17

The employer also made available paid meeting times for the employees to meet with the union officials to have the document explained to them. There was also a generosity on the part of the employer to welcome any union officials that called in unannounced in terms of any inquiries by walking the floor of the workplace and responding to any inquiries. So there was a good deal of activity with respect of explaining the terms of the proposed agreement and I have no instructions contra to the fact that there was a very good and co-operative approach from all parties involved in putting this document to the employees.

PN18

Finally, Commissioner, in terms of the Act itself, section 170LT(8) with respect to the disputes procedure, that could be found in the document at clause 36 on page 43. That dispute procedure was a traditional disputes procedure, conventional in the sense it contains nothing startling except that there was plenty of opportunity for the parties to discuss any dispute that arises or any grievance and if the parties are unable to agree either party has the right to bring the matter to the Commission for resolution.

PN19

So, having said all of that, Commissioner, I would commend the agreement to you for certification on behalf of my client, thank you.

PN20

THE COMMISSIONER: Mr Mimmo, I've just got one question. In respect to the union recognition clause I understand the strong policy of encouragement by the company but can I ask you this for the record. If an employee chose not to be a member of the union would that prejudice him or her in any way?

PN21

MR MIMMO: No, Commissioner, thanks for raising that question, that's remiss of me not to have responded to that. I think that the incidents and parties bounds clause may cover that, Commissioner. If I could ask the Commission to turn to page 3 at clause 3. It says there that the parties bound are:

PN22

The Fresco Supermarket, the Shop, Distributive and Allied Employees Association in respect of employees employed ...(reads)... whether members of the Shop, Distributive and Allied Employees or not.

PN23

So it covers all employees within the establishment employed by Fresco. So they would not be in any way disadvantaged.

PN24

THE COMMISSIONER: Yes, thank you. Yes, Mr Dwyer?

PN25

MR DWYER: Commissioner, the union would like to concur and support the submissions already made by Mr Mimmo and we too seek certification of the agreement in accordance with section 170LT. We would rely in the first instance on the stat dec signed by the national assistant secretary, Mr Ian Blair Thorne on 21 December and filed in accordance with Act. Commissioner, just briefly then we would submit that the agreement satisfies the no disadvantage test. The majority of employees have genuinely approved the agreement and as Mr Mimmo indicated the precise figures that we have indicate a 96 per cent vote in favour of the agreement.

PN26

The agreement as pointed out contains the dispute for settlements procedures clause and that the explanation of the proposed agreement was made in both a written and oral form and that is evidenced by the attachments to Mr Blair Thorne's statutory declaration. The employees were clearly told that their opportunity was to contact both company and all union representatives during the consideration period. It was a very open process, questions were taken both at briefing meetings and with organisers during the consideration period.

PN27

So we would say that all aspects of the Act with regards to the openness of the ballot and the proper conduct of that were complied with. We would also note that the parties are committed to renegotiating an agreement to replace this interim agreement and those negotiations are to commence in late February, early March. We therefore seek that the agreement be certified from today's date with the nominal expiry date of 1 May, 2001. If the Commission pleases.

PN28

THE COMMISSIONER: Yes, thank you.

PN29

This is an application to have certified an agreement to be known as the Fresco Supermarkets Interim Enterprise Agreement 2000. The parties to the agreement are Fresco Supermarkets and the SDAEA, for short. On the basis of the documentation and the submissions I'm satisfied that the relevant requirements of the Act and the rules of the Commission have been complied with. Consequently the agreement will be certified. It will come into force from the first full pay period to commence on or after 7 February, 2001 and will remain in force until 1 May, 2001.

PN30

On that basis these proceedings are now adjourned.

ADJOURNED INDEFINITELY [2.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs