AG2001/1169, Transcript of Proceedings [2001] AIRCTrans 606 (12 April 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2001/1169

APPLICATION FOR CERTIFICATION
OF AGREEMENT

APPLICATION UNDER SECTION 170LJ OF THE ACT
BY MARIANI AUSTRALIA PTY LIMITED AND THE
AUSTRALIAN WORKERS UNION FOR
CERTIFICATION OF AGREEMENT

ADELAIDE

11.06 AM, FRIDAY, 30 MARCH 2001

PN1

THE DEPUTY PRESIDENT: Good morning. Yes, I will take the appearances.

PN2

MR M. ATS: I appear for the Australian Workers Union in this matter.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Ats.

PN4

MS C. KNIGHT: I appear for the employer, Mariani Australia.

PN5

THE DEPUTY PRESIDENT: Thank you, Ms Knight. Mr Ats, are you going to take care of it this morning?

PN6

MR ATS: I believe it is the employer's application, sir.

PN7

THE DEPUTY PRESIDENT: Very well, thank you.

PN8

MS KNIGHT: It is our application, the employer's application. This is an enterprise agreement that has been negotiated between the parties and which was voted on and agreed to on 19 February 2001. By way of background, this is - this used to be Gawler Park Fruits which was previously covered by the Angus Park Fruits, Gawler Park Fruits Enterprise Bargaining Agreement. Angus Park Fruits was sold in about July of last year and so these employees had previously been covered by that enterprise agreement.

PN9

When this organisation became an entity in its own right, it negotiated its own agreement but it is essentially the same as the agreement that had previously covered the employees who are bound by it. The agreement complies with all of the requirements in the Act in my submission. If there is any particular clause or fact you would like me to take you to I am happy to do so, apart from that I simply submit it to the Commission and ask you to certify.

PN10

THE DEPUTY PRESIDENT: I need to understand a little bit about the factual context, a bit more about the factual context. Both of the statutory declarations helpfully outline each of the matters that have been modified as compared with the relevant safety net awards. What I do not know, however is two things: firstly, how many clerical and retail employees there are, for instance, as against the others and secondly, when I look at the remuneration rates in the agreement, there is in clause 39 rights for general hands and juniors but I do not know what is intended in relation to employees other than general hands or whether everyone is treated as a general hand, so I am just unclear as to the package that is to apply, in particular, to the clerical and retail employees.

PN11

MS KNIGHT: As to the numbers, my understanding is that there are about 80 employees altogether at this site, although the vast majority of them are casual employees so there is some variation in that but I understand that the number of retail and clerical employees is very small, less than 10 and I am afraid I do not have a better idea than that.

PN12

THE DEPUTY PRESIDENT: That would have been my expectation as to the proportion.

PN13

MS KNIGHT: Yes. The package, I believe - I am afraid I cannot enlighten you off the top of my head about what applies to the casual - I am sorry, to the clerical and retail employees but - - -

PN14

THE DEPUTY PRESIDENT: I mean, there may well be others - - -

PN15

MS KNIGHT: Yes.

PN16

THE DEPUTY PRESIDENT: - - - but I just point them out because in general parlance they are not - terms of general hand they are not normally used unless this is an attempt to describe them all under the single rate but it - certainly that is not what was done in the previous agreement.

PN17

MS KNIGHT: That is correct. Perhaps my friend can - no, he can't.

PN18

MR ATS: I am sorry, Deputy President, my instructions are fairly limited.

PN19

THE DEPUTY PRESIDENT: I see.

PN20

MS KNIGHT: My client is available by telephone, if you would like me to quickly contact him and just - - -

PN21

THE DEPUTY PRESIDENT: Yes, look, it is an important issue because, of course, I am not in any position to make a judgment as to whether or not the package is - provides a net disadvantage without knowing what that part of the package is and I imagine that there is actually a deficiency in the document, that would be my presumption.

PN22

MS KNIGHT: Yes, if you will give me a very short adjournment.

PN23

THE DEPUTY PRESIDENT: All right, well, perhaps then we should adjourn because it may well be that you want to discuss the consequence of your respective phone calls and I will adjourn for as long as necessary.

SHORT ADJOURNMENT [11.12am]

RESUMED [11.36am]

PN24

THE DEPUTY PRESIDENT: Yes, Ms Knight?

PN25

MS KNIGHT: Thank you for your indulgence, sir.

PN26

THE DEPUTY PRESIDENT: Certainly.

PN27

MS KNIGHT: My client has clarified for me that there are currently no retail staff who are employed. They have left reference to them in the agreement because it is anticipated that they will be reopening the retail outlet soon and they will be covered. In that situation, retail staff will be paid at what is called the general hand rate of pay and clerical staff are also to be covered by that general hand rate of pay detailed in clause 39 of the agreement. So one rate of pay for all staff covered by the agreement.

PN28

THE DEPUTY PRESIDENT: Yes, Ms Knight, look, I will need to consider the consequences of that information because, of course, the rate of pay, both in the old agreement for those employees and in relation to the safety net award, is obviously considerably in advance of the rate in the agreement. In that context I think I need to consider more carefully what has been put in the statutory declarations, in particular about the various matters of disadvantage and non-disadvantage of benefits that appear in the statutory declaration, to satisfy myself that the package does not produce a net disadvantage for the employees concerned.

PN29

It does not mean that I necessarily will come to the conclusion that there is a problem but without being aware prior to the proceedings as to whether or not there were other rates I have not been able to turn my mind to that question and I will need to do that. Mr Ats, is there anything you want to say about the application generally and/or about that particular issue?

PN30

MR ATS: Not at this point, sir. We would simply seek to make any final points after you have had an opportunity to consider the relevant rates in terms of any disadvantage that you might find that has not come to the attention of the parties as yet.

PN31

THE DEPUTY PRESIDENT: Anything further?

PN32

MS KNIGHT: No, sir.

PN33

THE DEPUTY PRESIDENT: Well, what I will do then is I will formally reserve a decision in the matter for reasons I have just outlined. I am, however, aware of the history of the matter and, of course, the fact that certain dates are dependent upon certification by the Commission, so I will deal with this as a matter of priority. If, having considered what has been put this morning, I believe that further proceedings are desirable then I will reconvene the Commission and/or deal with it by way of written submission, but I will do whatever is necessary as a matter of priority and advise the parties at the earliest opportunity.

PN34

MS KNIGHT: Certainly. Sir, if you require some further clarification on the point, I mean, I am certain that we could perhaps have a tele-conference or something like that with my client involved - - -

PN35

THE DEPUTY PRESIDENT: Yes, yes, yes.

PN36

MS KNIGHT: - - - directly in the process to give you that clarification.

PN37

THE DEPUTY PRESIDENT: Well, that may well be appropriate. It is just that at the moment I can't get my head around the implications of that now that I know that there isn't other provisions that have to be injected into the form, but I appreciate the offer you have made and I will take that on board and advise the parties at the earliest opportunity. The Commission will be adjourned.

ADJOURNED ACCORDINGLY [11.40am]