AG2001/1529, Transcript of Proceedings [2001] AIRCTrans 631 (18 April 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE BOULTON

AG2001/1529

APPLICATION FOR CERTIFICATION OF
AGREEMENT (EMPLOYEES - DIVISION 2)

APPLICATION UNDER SECTION 170LK OF
THE ACT BY DFS AUSTRALIA PTY LIMITED
FOR CERTIFICATION OF THE DFS MELBOURNE
AIRPORT CERTIFIED AGREEMENT 2000

SYDNEY

10.55 AM, MONDAY, 2 APRIL 2001

ADJOURNED SINE DIE

PN1

HIS HONOUR: Yes, can I have the appearances, please?

PN2

MR R. D. CLARKE: If the Commission pleases, I am from the Australian Retailers Association, appearing on behalf of DFS. I also have with me MS N. BELL from Human Resources Department of DFS. We also have the Store Manager, MR R. ROBERTS, of the DFS Melbourne Airport staff, and MS C. COCO, the person appointed as the staff representative to travel here this morning, your Honour. Those people could join us at the bar table if you wished.

PN3

HIS HONOUR: Yes, certainly. Yes, Mr Clarke?

PN4

MR CLARKE: Your Honour, I wouldn't actually mind taking the matter off the record for a moment, if I can, to have a discussion with you about certain elements of it.

PN5

HIS HONOUR: Yes, we'll go off the record.

OFF THE RECORD

PN6

HIS HONOUR: Whilst we were off the record we discussed the possibility of an undertaking being given by the company and attached to the certified agreement in relation to rates in the agreement that might give some concern in relation to compliance with the no disadvantage test. I've indicated to the company that I am prepared to consider the certification of the agreement with such undertakings attached to it and provided to each employee who is covered by the agreement. Yes, Mr Clarke?

PN7

MR CLARKE: Your Honour, would you like me to set out the undertakings?

PN8

HIS HONOUR: Well, I think you should just go through the entire application.

PN9

MR CLARKE: Yes, your Honour. In February an application was made by DFS to certify the DFS Melbourne Airport Certified Agreement. At the time that material was prepared, it was the best belief of the company, in relation to the material presented to the Commission, firstly, that due process had been followed by the company in implementing the certified agreement at DFS airports; secondly, that the agreement did not disadvantage employees compared with the Retail Airport Concessions Award of 1998.

PN10

With subsequent communication that was required with the Commission, the company undertook some further checking of their figures to ensure that, upon appearing today, the agreement would be in a form that was certifiable. On doing those figures one thing became obvious and that was that the amount of casual employees employed at the site has had a debilitating effect on the no disadvantage test in that it has caused the company to be probably about 1 per cent below what employees over a month would be paid on the award compared with the agreement.

PN11

At this stage the company undertook to produce some further figures for the Commission this morning and have found that if they applied a 5 per cent increase on all figures across the board there would be no global disadvantage at DFS Melbourne Airport site. If the Commission pleases, I do have a copy of those wage rates as set out and a copy of the total that would be paid under the agreement and a total that would be paid under the award for a four-week cycle at DFS, which I can hand up.

PN12

HIS HONOUR: Yes. I'll mark that exhibit C1.

EXHIBIT #C1 WAGE RATES PAYABLE UNDER THE AWARD AND UNDER THE AGREEMENT FOR A FOUR-WEEK CYCLE AT DFS

PN13

MR CLARKE: Thank you, your Honour. Now, your Honour, as alluded to, there have already been several votes at the site, at DFS Melbourne Airport; and in order to avoid a further vote we've sought to be able to provide undertakings to the Commission in order to rectify the problem that is before us. The undertaking that I will fax to the Commission this afternoon would be annexure A and (a) would be in the following form and that is words to the effect: that the company is providing an undertaking; the undertaking provided will result in the wages specified at 3.1(a) and 2.1(e) of the agreement being completely over-ridden by this annexure.

PN14

It would then set out that the rates that would then become applicable would be, firstly, for a part-time employee, from day of operation, $17.136; their first increase of 3.5 per cent from 1 November 2002 would take that rate to 17.703; and from 1 November 2003 it would change the rate to 18.27. It would also show that a casual employee, from date of operation, would receive $19.194; from 12 November 2002, $19.834; and that from 1 November 2003, $20.475.

PN15

In lieu of the wages set out in 2.1(e), for salaried employees these would change to $35,700 until 31 October 2001; a salaried employee would receive greater than $36,750 until 31 October 2002; and greater than $37,800 until the expiry of the agreement.

PN16

The third undertaking clause would also stipulate that all employees at the site would be provided a further copy of the agreement with the undertakings annexed; and, fourthly, that all further copies of the agreement distributed by DFS will contain the undertakings of the agreement.

PN17

Your Honour, with the figures we've provided we believe that this ensures that this agreement does not disadvantage employees globally, as compared with the Airport Retail Concessions Award 1998, and it's on this basis and on the providing of those undertakings that we seek certification of the Melbourne Airport Certified Agreement 2000.

PN18

HIS HONOUR: Thank you. You say there have been a number of votes taken?

PN19

MR CLARKE: Yes, your Honour.

PN20

HIS HONOUR: I might just take you to the relevant part of the statutory declaration, Ms Hartley's declaration. You'll see - it's 5.1 and 5.2: is it February 2000 or 2001?

PN21

MR CLARKE: 2001.

PN22

HIS HONOUR: So that's a typographical error, is it?

PN23

MR CLARKE: The 8 February figure - on 8 February 2001, after the 14-day employee consideration period had occurred, the ballot was held. The statutory declaration only refers to one ballot, your Honour, and the reason for it is simple, that the proper procedures weren't followed for the others.

PN24

HIS HONOUR: Can you see that it has that the ballot was declared on - - -

PN25

MR CLARKE: Oh, sorry. The vote was declared on 12 February 2001.

PN26

HIS HONOUR: That should be 2001?

PN27

MR CLARKE: That's correct.

PN28

HIS HONOUR: The next date should also be 2001?

PN29

MR CLARKE: That's correct. Do we know anything about the voting? There were 13 people. Did they all vote?

PN30

MR CLARKE: Yes, I think attached to that - and i've certainly got a copy here - from Phil Lewis of Elections Australia; it says - - -

PN31

HIS HONOUR: Oh, I see. It says, "Number of votes returned, 10; 10 in favour; none against". I see. And that's got 12 February 2001.

PN32

MR CLARKE: That's got the correct date, yes.

PN33

HIS HONOUR: Yes, thank you. Now, I just missed the name of the person who is the staff representative?

PN34

MR CLARKE: Carol Lee Coco.

PN35

HIS HONOUR: Ms Coco, you've heard what Mr Clarke has said. Do you have any problems with any of the things?

PN36

MS COCO: No, no, that's fine, that all sounds fine to me, your Honour.

PN37

HIS HONOUR: Have you been elected a staff representative?

PN38

MS COCO: Yes, I have.

PN39

HIS HONOUR: So there was some discussion regarding this?

PN40

MS COCO: No, actually, there wasn't.

PN41

HIS HONOUR: But you say you were elected?

PN42

MS COCO: Yes. Well, discussion, do you mean amongst my associates or with the company?

PN43

HIS HONOUR: No, with the employees? I'm just saying, how were you elected, how were you chosen to be the staff representative?

PN44

MS COCO: Exactly that way I was elected, there were no discussions.

PN45

MR CLARKE: Your Honour, I think Ms Coco is confused between discussion on this undertaking or discussion on the agreement.

PN46

HIS HONOUR: No, I'm just asking you, how did you come to be the staff representative?

PN47

MS COCO: I was elected to be staff representative.

PN48

HIS HONOUR: Yes, and I'm then asking you to describe how you were elected?

PN49

MS COCO: I was elected, that's exactly how I was elected.

PN50

HIS HONOUR: Was there a meeting or was there some discussion or?

PN51

MR ROBERTS: I can help elaborate that, if I may.

PN52

MS COCO: Go ahead.

PN53

MR ROBERTS: Basically there was - - -

PN54

HIS HONOUR: No, no, just for the purpose of the transcript, who is now speaking?

PN55

MR CLARKE: Ralph Roberts, your Honour, he's the store manager.

PN56

HIS HONOUR: Mr Roberts, he's the store manager, yes.

PN57

MR ROBERTS: What happened, your Honour, is we put a - - -

PN58

HIS HONOUR: It might be better if you stand because it's easier for our amplification equipment to pick you up.

PN59

MR ROBERTS: What happened was a notice was put up on our staff notice board asking for a vote of people who they wanted to be their staff representative and people put a tick as to the person that they wanted to be their staff representative, and Carol Lee got the added distinction of having the most ticks by her name, so hence was elected as the staff representative.

PN60

HIS HONOUR: Good, thank you. Now, Ms Coco, if you can stand up too. You've listened to what Mr Clarke has said and you don't have any problem or objection with the course that he's proposed for the Commission to follow in certifying the agreement?

PN61

MS COCO: No, not at all.

PN62

HIS HONOUR: And you understand that a copy of this undertaking will be attached to the agreement and will be provided so that all the employees who are employed at the store will know what the conditions are?

PN63

MS COCO: Yes.

PN64

HIS HONOUR: Yes, thank you. On condition that there is a undertaking in writing provided to the Commission before the close of business today, and that that undertaking is in the terms that have been referred to in the course of the proceedings today, I'm satisfied that the requirements of the Act for certification of this agreement would be met and in those circumstances I would certify the agreement. The agreement would then come into force today and remain in force until 31 October in the year 2003. If you could ensure that that undertaking is received, we'll sign the relevant documentation after that.

PN65

Thank you very much for your attendance, that completes this matter.

ADJOURNED INDEFINITELY [11.25am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 WAGE RATES PAYABLE UNDER THE AWARD AND UNDER THE AGREEMENT FOR A FOUR-WEEK CYCLE AT DFS PN13