AG2002/2331, Transcript of Proceedings [2002] AIRCTrans 2004 (4 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2002/2331

APPLICATION FOR CERTIFICATION OF AGREEMENT

KEVIN POTTS SECURITY SERVICES PTY LIMITED CERTIFIED AGREEMENT 2002

Application under section 170LK of the Act
by Kevin Potts Security Services Pty Limited
for certification of the Kevin Potts Secutiry
Services Pty Limited Certified Agreement 2002

SYDNEY

9.05 AM, TUESDAY, 21 MAY 2002

PN1

THE COMMISSIONER: Could I take appearances please.

PN2

MR J. WORMINGTON: I appear on behalf of the respondent company.

PN3

THE COMMISSIONER: Thank you, Mr Wormington. You have two gentlemen with you?

PN4

MR WORMINGTON: Yes, sorry, Commissioner. To my right is MR K. POTTS, a director of the company and next to him is MR A. HORSLEY, who was chairman of the bargaining committee on behalf of the employees of the company.

PN5

THE COMMISSIONER: Yes, thank you. I will hear you, Mr Wormington.

PN6

MR WORMINGTON: Yes, Commissioner, this matter and the next matter before you are related matters. The agreements are in identical terms. Kevin Potts' is trading as ACPS, the second company is Australian Consolidated Protection. The letters of Australian Consolidated Protection added up to ACPS but they are two distinct companies. There is a relationship between the companies. Kevin Potts Security or ACPS actually subcontracts to Australian Consolidated Protection.

PN7

However, in other circumstances they have their own separate contracts. They don't always work together but they do often work together. Because they do often work together it was considered by the management of both companies appropriate to have certified agreements and identical terms because the employees were working same - side by side so it would be beneficial to have them on the same conditions and terms of employment.

PN8

THE COMMISSIONER: I take it that the Kevin Potts certified agreement - sorry, the Security Services Employment Agreement, that covers 38 employees, 30 of which are casual employees. The other agreement which is to be called on at 9.30 that covers two employees.

PN9

MR WORMINGTON: That is correct, Commissioner, yes.

PN10

THE COMMISSIONER: Why wouldn't the one agreement cover 40 employees?

PN11

MR WORMINGTON: Because they do work in their own right. They are two distinct companies. Two distinct entities.

PN12

THE COMMISSIONER: I see.

PN13

MR WORMINGTON: Whilst they do a lot of work together or subcontract for each other - - -

PN14

THE COMMISSIONER: Yes, I see.

PN15

MR WORMINGTON: Yes. The ACPS agreement - - -

PN16

THE COMMISSIONER: Is there only two employees working for ACPS?

PN17

MR WORMINGTON: There are, yes. Two security officers. There will be more if the agreement can be approved or certified. They will attempt to pick up contracts. At this stage paying under the award rates I am told they are not able to compete with the competition in the Newcastle region.

PN18

THE COMMISSIONER: Well, we might address the ACPS when I call it on, Mr Wormington. I was just trying to get the feel of the connection.

PN19

MR WORMINGTON: Yes.

PN20

THE COMMISSIONER: So we can talk about those two employees later. All right, then, Kevin Potts Security.

PN21

MR WORMINGTON: Yes. The Kevin Potts Security Agreement was before you in about December of 2000 and on that - - -

PN22

THE COMMISSIONER: Not the agreement an agreement.

PN23

MR WORMINGTON: No, an agreement. Mr Adams was representing the respondent - - -

PN24

THE COMMISSIONER: Yes.

PN25

MR WORMINGTON: - - - on that occasion, I believe. One of the reasons that certification was refused on that occasion was because there were so many amendments made to the agreement the Commission was of the view that at the end of the day that was not the agreement that the employees had actually voted on. This new agreement has been - - -

PN26

THE COMMISSIONER: It wasn't - it didn't necessarily mean that I would have certified the agreement anyway, Mr Wormington. I think - I mean, that is a fair while ago but in attempting to recollect what was determined in that matter the fact was that I wasn't satisfied that the no disadvantage test had been met. One particular provision, apart from rates and salary allowances, one particular provision related to a facilitative arrangement in the agreement and that concerned me.

PN27

There are a couple of questions on this agreement and, of course, that would have applied with the other agreement as well. In relation to the capacity to change hours. I don't know what substantive change means in the agreement before me at this point. Also, in relation to the casual - definition of casual in the Kevin Potts Security Agreement it appears to me that it is a no holds bar provision. You can do anything in regards to standard hours and what have you. Whereas the award that underpins this agreement is a 38 hour a week award.

PN28

Another - one other point in it is the term voluntary overtime as well and I can't remember if that was a term in the previous agreement that I declined to certify. However, they are issues and I will hear your submission on it, the agreement, as a whole plus those particular points but before we do that can I ask you do you have paperwork or material which you plan to tender in relation to the roster system that is in operation and some form of comparative document in relation to a selection of employees that work under that roster system in comparison to the award?

PN29

MR WORMINGTON: I don't, Commissioner. Excuse me one second. We have nothing with us. The only thing I could suggest is that I undertake to get that to you after today's proceedings.

PN30

THE COMMISSIONER: See, the difficulty - and there may - you may take me to particular provisions in the agreement that you would say on balance satisfied the requirements in the no disadvantage test and I will hear you on that and I will most definitely have regard to that submission if it is forthcoming. One of the things that predominantly comes out in a number of agreements in relation to the security industry is the rates of pay.

PN31

Now, the rates of pay are not determinative of refusal or acceptance of a certified agreement because the test, legislative test, is on balance and that is very much a subjective balance to look at all the terms of the agreement. So while I highlight to you the issue of rates I want to make it quite plain that that is not the only issue that would be in a member's mind in relation to whether under the legislation they have power to certify. Just returning to the rates it is very difficult to look at an agreement with a rate of pay in it when you don't have an analysis of earnings under the roster system that the company would utilise.

PN32

That is why I asked if you will have something, a comparison for me. Yes, I would ask you to forward that to me. For the purposes of today's proceeding I will hear your submissions and you can take the two parts of the agreement that you say constitute a reduction to the award and also particular provisions that you say balance that reduction in relation to other terms and conditions that the agreement might provide to the security officers. Are you clear on - in regard to what material I would like to view prior to determining whether I can certify the agreement?

PN33

MR WORMINGTON: Yes, perhaps if I explain how the rates were arrived at that may allay your concerns but if does not, I think I understand the type of material that you require.

PN34

THE COMMISSIONER: Yes. I think I would prefer the material. I will hear your submissions and that in conjunction with the roster that say has been in place over the last - I don't know what they roster, 4 weeks, 6 week, 8 week period. I'm unsure. I would also like a comparison of, for example, three employees that work, let us say, ordinary hours but also hours outside of ordinary hours, Saturday, Sunday and what have you and a comparison to their rates - wages to be earned under the agreement as that would compare, if they worked under the agreement, so if you could possibly provide that to me. We might just ask now - how long do you require to forward that material? I would prefer it to be in detail rather than have it rushed in to me within a week or so, so how long do you think it might take for that material?

PN35

MR WORMINGTON: Perhaps 3 weeks.

PN36

THE COMMISSIONER: Seek instructions if you like.

PN37

MR WORMINGTON: I understand what you want. I'm instructed it could be available within a week, but perhaps 2 weeks to allow a safety margin.

PN38

THE COMMISSIONER: Well, look, why don't we say 11 June?

PN39

MR WORMINGTON: 11 June.

PN40

THE COMMISSIONER: All right. We will - do you want to address me on the certification of the agreement, Mr Wormington and I think I've highlighted a couple of things in regards to the casual definition and want have you, so you might work me through - if you give me the submissions on the actual agreement making process in accordance with the material that was filed with the statutory declaration, in the form of statutory declaration and then you might take me to the particular parts of the agreement that you wish to highlight to me.

PN41

MR WORMINGTON: I did send down by express post copies of the statutory declarations and letters that were requested.

PN42

THE COMMISSIONER: As amended.

PN43

MR WORMINGTON: Yes. Were they received?

PN44

THE COMMISSIONER: For the record? My office contacted you and we queried a number of points in regards to certification and you very kindly forwarded in a copy of the notice to employees and you gave notice and it appears on its face to be in accordance with 170LK. 2, I think the particular division is, Mr Wormington. Also the amended statutory declarations which has clarified particular points, so yes, that material has been received.

PN45

MR WORMINGTON: Is there any other material that you would like me to tender?

PN46

THE COMMISSIONER: Well, I'd like to know about the approval process.

PN47

MR WORMINGTON: Perhaps Mr Horsley could answer any questions that you have in that regard.

PN48

THE COMMISSIONER: I'll ask Mr Horsley. He can let me know the voting process, how many voters and what - how many approve the agreement and what have you, so when we get to that he might address me on that, that is fine.

PN49

MR WORMINGTON: I wasn't involved in that part of the process. Commissioner, just getting back to the rates, how they were arrived at. I'm instructed that the company added up all of the Monday to Friday day hours that the monetary value under the award. They then worked out the Monday to Friday night rates that they do under the award. They did the same with the Saturday hours, 24 hours on a Saturday, under the award, and 24 hours on a Sunday and they added in the public holidays, so they did that over a yearly basis. They added up every hour of the year the monetary value under the award.

PN50

THE COMMISSIONER: Every hour of the year as worked by the company?

PN51

MR WORMINGTON: Yes, because the company potentially could have employees working 24 hours a day, 7 days a week so to work out the value of every hour - and then they divided the number of hours in the year by the monetary figure to come up with the hourly rates.

PN52

THE COMMISSIONER: They divided the hours, I'm sorry?

PN53

MR WORMINGTON: They worked out the number of hours, total hours in the year, they divided it by the monetary figure, assuming that someone worked every hour of the day of ever day of the week of every week of the year, they divided it by the monetary figure.

PN54

THE COMMISSIONER: Do you have that material?

PN55

MR WORMINGTON: Pardon? No, I have been given the formula but I don't have the results. I will undertake to provide that figure along with the rosters.

PN56

THE COMMISSIONER: All right. So what you are saying to me, Mr Wormington, is that a calculation was done over a yearly period and it was based on the hours that are performed by security officer and then it was - did you say "divided by the monetary figure?"

PN57

MR WORMINGTON: Yes. I will try and explain it a little more carefully. The Monday to Friday, day and night shift, 24 hours a day, the award rates were added up. The 24 hours that would be payable on a Saturday was added up, the 24 hours that would be payable on a Sunday was added up, the value of 11 public holidays were added up and they were all added together and so we have a calculation that takes into account every hour for a whole year because potentially they could have employees working any hour of any day of the year.

PN58

THE COMMISSIONER: All right, and for the purposes of this agreement it would have been taken on a casual rate which includes the one-twelfth? That particular rate I think is approximately $15, and don't quote me on these, I don't have the award in front of me at the moment, it is in my paperwork, but the ordinary rate I think is about $12 - - -

PN59

MR WORMINGTON: $12.96, Commissioner.

PN60

THE COMMISSIONER: - - - and then for a casual, purposes of a casual, there is a casual loading and then the one-twelfth is applied to that particular figure.

PN61

MR WORMINGTON: I've just been instructed it was done on the permanent rate. Could I just seek instructions on whether that - - -

PN62

THE COMMISSIONER: So that would be approximately the $12 rate then?

PN63

MR WORMINGTON: Yes, the group one, $12.96 ..... Yes, Commissioner, that is correct.

PN64

THE COMMISSIONER: All right. So that 12, the permanent rate was taken per hour, then it was looked at: what is the permanent rate for the Saturday which I think is loading 50 per cent, and then for the Sunday which I think is 150 per cent, then public holidays, so those figures were all added together - - -

PN65

MR WORMINGTON: Plus shift loadings, I think. There was Sunday - public holidays was $30.50 from memory.

PN66

THE COMMISSIONER: You will have to give me the submission, Mr Wormington, you know that.

PN67

MR WORMINGTON: Yes. The Sunday rates, at whatever percentage, the Saturday rates at 50 per cent, the shift loadings for night shift were all added together and every hour of the year was totalled to give a monthly figure.

PN68

THE COMMISSIONER: All right, so where do we go from there? Then we have an average of hours, so what you are saying is we have an average of hours, we have average of a dollar figure per hour?

PN69

MR WORMINGTON: Yes, well, a simpler way to put it might may be, if we had one employee that worked 24 hours a day every day of the year, we've added it up as total entitlement. He has worked 24 hours a day every day of the year, we've worked out his total entitlement as per the permanent rate under the award at the appropriate overtime rates. We've then divided that, that total figure - - -

PN70

THE COMMISSIONER: Yes.

PN71

MR WORMINGTON: - - - it's $10,000 for example, we've then divided that by the number of hours in the year to come up with an hourly rate.

PN72

THE COMMISSIONER: Yes, well I would be interested in that formula. The basis of the rates you have included in the agreement. You might forward that material with me as well as the rosters and allow me to have a look at the material, thank you.

PN73

MR WORMINGTON: Yes Commissioner. At clause 10.5, the Commission will note there is rostering flexibility, that the employees can actually go to the employer and say what days or what hours they would like to work, that is certainly not a monetary benefit but it is a non monetary benefit that I would ask you to take into account. Clause 11 provides for a classification structure and the classification structure is designed to create a career path for employees so they can start as a grade 1 static security guard but they don't have to stay there. Clause 11.1 must be looked at in light of clause 26.1, .2 and .3.

PN74

At 26.1, .2 and .3 relates to training, the company is undertaking to provide training in relation to shooting, which is a necessary requirement for some security guards. They are providing training in conflict management, they are providing training in arrest procedures and report writing. Now, the training sessions, I am instructed, are going to be regular and they are at absolutely no cost to the employee whatsoever. This approved training will assist them in their career path, it will assist them to move from grade 1 to grade 2 and many of those employees, it is anticipated, will move into management positions some time down the track.

PN75

THE COMMISSIONER: The agreement, 38 employees covered by the agreement, what level are those employees at in relationship to say the award?

PN76

MR WORMINGTON: At this stage I am instructed they are all grade 1. All of the casuals are grade 1 but amongst the permanent there are two full-time senior security officers. Mr Horsley, who is here today, is a senior security officer - - -

PN77

THE COMMISSIONER: Is that grade 2 or grade in the award?

PN78

MR WORMINGTON: Grade 2, Commissioner.

PN79

THE COMMISSIONER: Grade 2.

PN80

MR WORMINGTON: Now, the training - - -

PN81

THE COMMISSIONER: The training, will that be conducted during ordinary working hours or outside of the rostered hours?

PN82

MR WORMINGTON: It will be conducted outside of rostered hours so they will not be paid for the training but there will be no cost for the training. The law requires that for security guards to carry a gun, they must have one shooting practice every 12 months. The company has employed a qualified instructor and he will provide every employee shooting practice at no expense to the employee and I am instructed the bullets alone are about $150 per employee per shoot. They are going to provide 12 shoots a year along with the other courses mentioned previously.

PN83

THE COMMISSIONER: The training is in the employee's own time?

PN84

MR WORMINGTON: That's correct. I would submit that the extra training will also provide for a safer work place which is certainly a benefit to the employees and the employer. I would further submit the training will make the employees more employable should at any time they decide to leave this particular employer and seek work elsewhere in the industry. Commissioner, you expressed concern about the number of casuals - - -

PN85

THE COMMISSIONER: No, not the number of casuals, no, I am no concerned about the number of casuals at all.

PN86

MR WORMINGTON: The hours that casuals can work.

PN87

THE COMMISSIONER: What I was concerned about was the definition clauses in relation to full time, part time and casual. So if you would like to have a look at that. The concern I have is permanent employee engaged to work at a substantive position that "averages 152 substantive hours per 4 weekly rostering period" that does not concern me, it is still a 38 hour week. The next provision is unclear to me and that is what I sought clarity on. That provisions says: With any changes made to those substantive hours only allowed by agreement of both parties. Now, what does "substantive" changes mean? Does it mean 38 goes to 40 or 45 hours a ordinary time or does it mean that it is changes within the weekly rostering period and if that is what the clause means, then that is perfectly normal.

PN88

MR WORMINGTON: What clause were you looking at?

PN89

THE COMMISSIONER: 1.1.2, definitions.

PN90

MR WORMINGTON: Could I just seek instructions on this point?

PN91

THE COMMISSIONER: Yes, please do.

PN92

MR WORMINGTON: I am instructed, Commissioner, it relates to starting times. An employee could be on a shift and starting time was 6 am but suddenly a new - that contract finishes, he could go onto a new contract, restart at 4 o'clock the next afternoon. It is just to allow some flexibility and allow the employee and employer to agree to change starting times.

PN93

THE COMMISSIONER: It does not say - it says "substantive hours" that is why I raised it. If it had of said starting times, I wouldn't have worried about and I am still not particularly worried about it if it means changing the roster within a 38 hour week. I mean, that wouldn't concern me and if that is the submission, then I will hear the submission.

PN94

MR WORMINGTON: That is the submission, yes. Perhaps the wording could be looked at.

PN95

THE COMMISSIONER: Yes. We have to be careful in that regard because if the agreement is amended in any - well, if it is amended, then it must go back in accordance with the legislation for approval. What I would be seeking, in a sense, which I think would still satisfy my responsibilities under the legislation, I would seek some form of undertaking in the form of advice that can be attached to the agreement if and when it is approved by the Commission that would clarify what that particular sentence means as it relates to 1.1.2, 1.1.3, would that be acceptable?

PN96

MR WORMINGTON: Yes, that is acceptable. I just take you back to clause 11.1, Commissioner. In relation to casual employees, there are quite a number working for the company at this stage but you will note from that clause that where a casual employee is employed on the same contract for 3 months there is a guarantee that he will be made permanent employee. Now, if he is a casual - - -

PN97

THE COMMISSIONER: Whereabouts is that, I am sorry, Mr Wormington?

PN98

MR WORMINGTON: Clause 11.1. Yes, under grade 1 security officer casual, under 11.1.

PN99

THE COMMISSIONER: Yes. So what you are saying to me is that when there's a certain amount of consistency of a particular casual security officers working for a particular client then they will be offered permanent part time after a period of 3 months?

PN100

MR WORMINGTON: That is correct. So there is a guarantee there that casuals will not necessarily stay casual, that they are on a contract for 3 months. They will be made a permanent employee.

PN101

THE COMMISSIONER: Yes. Well, I think I would consider that to be a benefit, Mr Wormington, but you are going to address the definitions 1.1.4 in regards to my concerns in that way. Does this mean, and again if this is the case then an undertaking clarifying that provision would suffice with me but does that provision mean that the 38 hours contained in the award still applies?

PN102

MR WORMINGTON: Yes, I'm instructed yes and an undertaking would be given to that effect.

PN103

THE COMMISSIONER: Yes, Mr Wormington. Are the provisions in regards to our balance argument we were discussion earlier?

PN104

MR WORMINGTON: 13.3, if I could take you to 13.3. It is an undertaking by the company that employees will be given preference of employment where a new contract is won or picked up where they were previously being made redundant. There would appear to be a limitation in the clause that says that if they've been made redundant they must be still available to the company on some sort of casual basis but I would submit that that is a benefit, that undertaking or that guarantee by the company is a benefit to employees.

PN105

Often these days when an employee is made redundant if he gets a redundancy payment he is not allowed to apply for re-employment with the same employer, particularly in government services, for a period of 12 months. Not that that is applicable in the security industry.

PN106

THE COMMISSIONER: Yes, please don't stop.

PN107

MR WORMINGTON: No, I was merely submitting that that is a benefit to the employees. It is a non-monetary benefit but it is something I would ask the Commission to take into account in balancing or in looking at the no disadvantage test. If I could take the Commission to clause 21 and 23.

PN108

THE COMMISSIONER: That is overtime and days in lieu?

PN109

MR WORMINGTON: Yes, overtime, yes. The employee is given a choice under the agreement as to whether he takes paid overtime or whether he takes time in lieu. That is the first benefit. The second submission I would like to make is that the overtime clause is actually preferable to the award clause because the overtime is worked out on a weekly basis and under the award it is computed on a daily basis. For an example, and I'm not suggesting that an employee would work 70 hours a week but if an employee did work 70 hours a week under the agreement - no under the award I will deal with first, under the award he would work 38 hours ordinary, then he would work 10 hours at time and a half and then 22 hours at double time.

PN110

Under the agreement he would work 40 hours at ordinary time, 2 hours at time and a half and 28 hours at double time. So there's certainly a benefit there. He would make more money on working overtime because it is computed weekly rather than daily. If it was under the award where it is computed daily the first 2 hours are time and a half each day before he gets into double time but under the agreement the first 2 hours are paid at ordinary time, the second 2 hours in any week are time and a half and then any other overtime worked that week is at double time. So that is a monetary advantage to the employees.

PN111

THE COMMISSIONER: Well, I'm unsure whether I've had to address that submission once before, Mr Wormington. I will have a look at my previous decision. The submission sounds familiar to me but anyway I hear what you are saying to me and I will have regard to the point you have raised in that way. You mention 40 hours. It is a 38 hour a week award.

PN112

MR WORMINGTON: Yes.

PN113

THE COMMISSIONER: I gather the agreement is a 38 hour one.

PN114

MR WORMINGTON: Yes. No, under the overtime clause at clause 21 the first 2 hours of overtime in any week are paid at ordinary time.

PN115

THE COMMISSIONER: Yes, I see. So what you are really saying is it is a 40 hour a week agreement.

PN116

MR WORMINGTON: No, no. Merely for the purposes of computing overtime because the first 2 hours of ordinary time.

PN117

THE COMMISSIONER: I think that is one of the significants of the 38 hour a week award or a 40 hour a week award. I mean if overtime, if your ordinary hours, what you are saying is ordinary hours are 40 hours.

PN118

MR WORMINGTON: Yes, I take your point, Commissioner.

PN119

THE COMMISSIONER: That is right. Yes, 40 hour a week award.

PN120

MR WORMINGTON: Yes.

PN121

THE COMMISSIONER: So I don't know that that is particularly - but I will hear your submission about the calculation of the overtime but I mean the award, the award is 38 hours. This agreement is 40 hours. There's a disadvantage in comparison of the award but your submission to me just then said to me; but it is the way we calculate the overtime that is the advantage. So I will have to turn my mind to that.

PN122

MR WORMINGTON: Yes. It is the fact that it is worked out on a weekly basis as opposed to the award which is worked out on a daily basis. Because it is worked out on a weekly basis it cuts out the necessity of having 2 hours at time and a half every day before you can get into double time. In any week once you have worked 2 hours time and a half you go straight into double time for all of the rest of your overtime.

PN123

THE COMMISSIONER: I suppose one to properly appreciate that submission or argument you would have to know how often do security guards work overtime.

PN124

MR WORMINGTON: Yes.

PN125

THE COMMISSIONER: And if they do, how many hours overtime do they work? If they all work only 2 hours, well, yes, if they work 2 hours each day then what you say is that rather than time and a half which would apply under the award they would reach a point where it would be double time.

PN126

MR WORMINGTON: That is correct.

PN127

THE COMMISSIONER: Yes. If they only worked an hour on Monday and an hour on Tuesday and no more then they are not paid overtime. They are not paid overtime. They are paid the ordinary rate.

PN128

MR WORMINGTON: Yes.

PN129

THE COMMISSIONER: Yes. So if all of them only worked 2 hours overtime in a week then there's no overtime.

PN130

MR WORMINGTON: No. That would be the case but I think the rosters that I will provide will show that that is not the case.

PN131

THE COMMISSIONER: Yes, that is fine. We've already agreed that there would be a certain amount of - there would be undertakings coming in and also some documents in relation to formulas and rosterings and comparisons to wages which you say will satisfy me that I should approve this agreement. Yes.

PN132

MR WORMINGTON: Yes, Commissioner.

PN133

THE COMMISSIONER: Yes, whenever you are ready, Mr Wormington.

PN134

MR WORMINGTON: Yes, if I can take the Commission to clause 32.1 a monetary benefit over and above the Award clause dealing with sick-leave.

PN135

THE COMMISSIONER: I don't actually have - I have 32 sick-leave and I have 32.2 sick-leave. I seem to be missing 32.1.

PN136

MR WORMINGTON: On the page of 32.2 is if you go up directly under the first paragraph there is 32.1, there should be a gap between - - -

PN137

THE COMMISSIONER: I see, there is no space, yes, I see what you mean it just appears then that that is a continuation of the paragraph but there should be a space there.

PN138

MR WORMINGTON: There should be.

PN139

THE COMMISSIONER: Yes, I have found it now, thank you.

PN140

MR WORMINGTON: The agreement allows for a payment for untaken sick-leave.

PN141

THE COMMISSIONER: Casuals don't get sick-leave though.

PN142

MR WORMINGTON: No, that is correct but it is certainly of benefit to the permanent employees.

PN143

THE COMMISSIONER: Which is two out of thirty-eight.

PN144

MR WORMINGTON: No, there is eight. There is two employees for the - - -

PN145

THE COMMISSIONER: My apologies.

PN146

MR WORMINGTON: Yes.

PN147

THE COMMISSIONER: That is correct.

PN148

MR WORMINGTON: Yes, eight employees, but with the clause 11.1 that guarantees permanent employment after 3 months on a contract would be, in my submission, that the ratio between casuals and permanents is going to change in favour of more permanent employees.

PN149

THE COMMISSIONER: Yes, I hear that point. So this is not a pay-out this is only a payment of accumulated untaken sick-leave. So it would be the component that has been accrued in the previous year but it would not be the sick-leave provision in relation to the year to be worked?

PN150

MR WORMINGTON: No, no, there must be 114 hours of sick-leave accumulated so they have a bank of sick-leave to call on. They can claim extra over and above that of 76 hours. So the condition or the benefit to the employees is a monetary benefit but it wouldn't actually click in until 2 or 3 years of employment I would imagine.

PN151

THE COMMISSIONER: Yes, I see, and of course what you are saying is as with the training provisions and also the casual provision in relation to a specific contract for a period of 3 months then the company envisages that the eight permanent employee numbers would go up over time.

PN152

MR WORMINGTON: Definitely, the company is currently tendering and very hopeful of getting a major contract with the State Rail Authority, it is a 4 year contract. At this point in time there are indications to the company that they may well be successful but I can't put it any higher than that because they haven't signed the contract yet. If they are successful with their contract all of their employees will be - well, 90 per cent of their employees will actually be permanent and they will have 4 years guaranteed work.

PN153

You will note that appendix A wage rates - I have already spoken about the wage rates and how they have been calculated, but part 3 of appendix A provides for two increases of 3 per cent, one in March 2003.

PN154

THE COMMISSIONER: I'm sorry, there is two 3 per cent increases?

PN155

MR WORMINGTON: Yes.

PN156

THE COMMISSIONER: Over the life of the agreement, it is a 3 year agreement isn't, Mr Wormington?

PN157

MR WORMINGTON: 3 year agreement, yes, Commissioner.

PN158

THE COMMISSIONER: When is the first 3 per cent?

PN159

MR WORMINGTON: The first 3 per cent is payable on 31 March 2003 or 12 months from certification of the agreement if it is in fact certified.

PN160

THE COMMISSIONER: Or 12 months, okay.

PN161

MR WORMINGTON: Yes, and the second payment 12 months after that 31.3.2004 or 12 months or the anniversary of the last payment. There is not really much more I can elaborate on, Commissioner.

PN162

THE COMMISSIONER: Have you addressed the allowances. Are there any - what allowances apply?

PN163

MR WORMINGTON: There is a part 2 of annexure A if I can take the Commissioner there.

PN164

THE COMMISSIONER: You will have to wait for me to find that. You have got a dispute settlement provision at appendix B I see?

PN165

MR WORMINGTON: Yes.

PN166

THE COMMISSIONER: Yes, I have found part 2.

PN167

MR WORMINGTON: Yes, part 2 provides for the following allowances: shall be paid when appropriate. First aid allowance is covered.

PN168

THE COMMISSIONER: Is this the award rate?

PN169

MR WORMINGTON: Yes, all of the allowances are of the award rate.

PN170

THE COMMISSIONER: The HM would that be a call out? I presume it would be a call out allowance?

PN171

MR WORMINGTON: Yes. Commissioner, you may like to ask Mr Horsley some questions. Would you like me to call him as a witness and give sworn evidence?

PN172

THE COMMISSIONER: Well, that is up to you, Mr Wormington, but that is not a requirement that I would need. If Mr Horsley has filed a statutory declaration and that advises me that Mr Horsley is stating that he represented employees, he was part of a bargaining unit and I think what is relevant to me in that regard is the process leading up to the application for certification and that process involves meetings, what was discussed. I take it that the submission is that the agreement was not amended after it was given to employees with 14 days provided by the Act for those employees to view the document and I will hear his submission if that is not correct.

PN173

Also the actual voting process and if he has the figures then I would appreciate being told those figures and anything in general in regards to the agreement. So it is not so much me asking Mr Horsley questions, I would like to hear Mr Horsley on those particular things and if that would be acceptable to him. Take a moment, Mr Wormington, if you do.

PN174

MR WORMINGTON: Are you ready to hear me, Commissioner?

PN175

THE COMMISSIONER: Yes, whenever you are ready, Mr Wormington.

PN176

MR WORMINGTON: I have taken instructions from Mr Horsley, and I'm instructed that he was the Chairman of the Bargaining Unit that comprised nine other employees. In fact, they were approached by the company to make an agreement and the approach was initially by way of letter, which I've previously filed with the Commission, that advises the employees that the company wishes to make an agreement to cover all of the security employees of the company, regulating all of their terms and conditions of employment for a period of 3 years, and that the employees have the option of either carrying out negotiations directly with the employer or can ask an industrial organisation or someone else to represent them. I have already - - -

PN177

THE COMMISSIONER: Providing that industrial organisation is entitled to represent their interests.

PN178

MR WORMINGTON: That is - - -

PN179

THE COMMISSIONER: Yes, I've read the notice. Did you wish to tender the notice at all?

PN180

MR WORMINGTON: Yes, I will tender the notice. Might I approach your associate?

PN181

THE COMMISSIONER: I think you would - - -

PN182

MR WORMINGTON: You have got that.

PN183

THE COMMISSIONER: The notice you have there is the one you filed so I presume you would just seek that I mark - - -

PN184

MR WORMINGTON: Yes.

PN185

THE COMMISSIONER: - - - the notice you filed.

PN186

MR WORMINGTON: Yes.

EXHIBIT #W1 LETTER FROM THE COMPANY DETAILING A PROPOSED AGREEMENT

PN187

MR WORMINGTON: I'm instructed that Mr Horsley and the rest of the Bargaining Committee met with the company on three formal occasions for negotiations about the agreement, but there were numerous, and he can't put a number on it, informal meetings where employees would get Mr Horsley and the other bargaining members to go back and ask the company something or renegotiate a clause. He can't put a figure on the number of meetings they had but, certainly, three formal meetings and numerous others.

PN188

When the agreement was finally agreed upon, I'm instructed it was given to each of the employees for 14 days before they were asked to vote on it. When they did vote at the meeting, there were 38 people who voted, and it was unanimous, 100 per cent voted in favour of the agreement. Mr Horsley is happy to answer any questions that you may have, Commissioner.

PN189

THE COMMISSIONER: Well, I think that about covers it unless Mr Horsley would like to give me any further submissions that, he feels, would be relevant to the decision before me.

PN190

MR WORMINGTON: No. If you are satisfied with that, Commissioner, that is - - -

PN191

THE COMMISSIONER: All right. The agreement, Mr Wormington, is in place of the award. I take it that the agreement replaces the award?

PN192

MR WORMINGTON: It is intended to replace the award. It is intended to regulate all of the terms and conditions of employment, yes, Commissioner.

PN193

THE COMMISSIONER: Right, yes. All right, I don't think - is there anything else you wish to place before me in the form of submissions, Mr Wormington?

PN194

MR WORMINGTON: No, apart from the material I have undertaken to send to you, Commissioner, I don't think there is anything else I can put before you right at this time.

PN195

THE COMMISSIONER: Yes, and that material is also undertakings from the company in relation to clarity on a couple of points that I raised?

PN196

MR WORMINGTON: That is correct, Commissioner, yes.

PN197

THE COMMISSIONER: Yes, all right. Mr Wormington, thank you for your submissions before me today. If there's nothing further that you feel I should be appraised of, I will reserve decision on this particular application, and we can then call on the next matter that I have.

PN198

MR WORMINGTON: Thank you, Commissioner.

PN199

THE COMMISSIONER: Thank you. Decision reserved, Commission adjourned, thank you.

ADJOURNED INDEFINITELY [9.59am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 LETTER FROM THE COMPANY DETAILING A PROPOSED AGREEMENT PN187