AG2001/8128, Transcript of Proceedings [2002] AIRCTrans 296 (5 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 1, 17-21 University Ave., CANBERRA ACT 2601
(GPO Box 476 Canberra 2601) DX5631 Canberra
Tel: [phone] Fax: [phone]

TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

AG2001/8128
AG2001/8270

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170XF of
the Act by Magnet Mart Pty Limited
for determination of designated award
for certified agreement

Application under section 170LK of
the Act by Magnet Mart Pty Limited re
certification of Magnet Mart Certified
Agreement 2001-2004

CANBERRA

11.03 AM, MONDAY, 21 JANUARY 2001

PN1

THE COMMISSIONER: Yes, can I have the appearances, please.

PN2

MR R. DAVIDSON: Thank you, Commissioner. I am a consultant and I seek to appear for Magnet Mart. Appearing with me is MR J. SALLUSTIO, the Financial Controller for Magnet Mart.

PN3

THE COMMISSIONER: Thank you.

PN4

MR B. SMITH: If the Commission pleases, I appear for the Shop Distributative and Allied Employees Association. I seek leave to intervene in this matter and the following matter before the Commission, Commissioner.

PN5

THE COMMISSIONER: Right. Any objection?

PN6

MR DAVIDSON: No, Commissioner.

PN7

THE COMMISSIONER: Go ahead, Mr Davidson.

PN8

MR DAVIDSON: Commissioner, the matter before the Commission is the determination of an award in respect of senior managers and executives for Magnet Mart Pty Limited. This an award for any employees holding senior positions within the organisation. We contend and suggest, Commissioner, that the appropriate to designate in relation to them is the ACT Retail Award and I refer to a recent decision that you made, Commissioner Deegan, in respect of Southern Plumbing Supplies Pty Limited, which is similar in nature in that the senior managers in that organisation were involved and still are, obviously, involved with the management of an organisation that is primarily retailing goods to the public.

PN9

Magnet Mart is in the same situation, that the Magnet Mart operation is in the business of retail hardware stores and management are solely dedicated to that function, Commissioner, and we therefore suggest that the same logic that applied in Southern Plumbing Supplies Pty Limited should apply in this case.

PN10

THE COMMISSIONER: Mr Davidson. Mr Smith?

PN11

MR SMITH: Commissioner, we would oppose the Retail Award being the appropriate award for these employees by virtue of the fact that Magnet Mart is actually bound by another Federal Award of the Commission, the Timber and Allied Industries Award, and that is an award which has coverage of all of Magnet Mart's operations in Canberra - sorry, in the ACT and in New South Wales. They are bound by that award, Commissioner, by virtue of the fact that they are named respondents to that award, in schedule A of that award.

PN12

The coverage of the award goes to - sorry, applies throughout the States of New South Wales, Victoria, South Australia, Tasmania, West Australia and the Australian Capital Territory, which is where Magnet Mart operates. The award applies to the work and persons performing work as listed in the skill grade structures in the appendices of this award as described in the definitions, and as per the importing classifications of the award.

PN13

In particular in the merchandising and retail industries, it applies to all activities listed in the manufacturing sector and also:

PN14

... the display, demonstration, preparation, handling, providing advice and selling of timber, timber related products, hardware and building products, in wholesale and timber merchant or retail outlets; activities associated with the importing wholesale of timber products and the calculation and processing of customer orders and dealing with customers, generally.

PN15

We say that that is the award which most accurately describes the activities of the applicant, Magnet Mart, and that is the sale of timber, hardware and building products through retail outlets. Clause 7 of that award provides that the award is binding upon relevantly the respondent associations and members thereof and the employers mentioned in the schedule hereto in respect of all their employees, whether members of a union or not, engaged in any of the areas of work or skills set out in the classifications in all grade structures in this award.

PN16

So, it applies to all employees of Magnet Mart, wherever they may be engaged, if they come within the coverage of the award. I have a copy of that award to hand up, if it assists. What I have provided, Commissioner, is the body of the award, the relevant part of the schedule A, and also appendix E which deals with the merchandising and retail sector. I have provided those parts of the award which relate to Magnet Mart, given the bulk of the award which has about 1000 pages of respondents. If I can hand that up and provide a copy to the other side.

PN17

THE COMMISSIONER: If you could just put the award code on the record for me, as well, Mr Smith.

PN18

MR SMITH: The award code, Commissioner, is AW800937.

PN19

THE COMMISSIONER: Thank you.

PN20

MR SMITH: We would submit, Commissioner, that the relevant classification of the shop assistants engaged in this award is level 4, merchandising, and I take you to appendix E, Merchandising and the Retail Sector at 1.4, 1.4.2, relevantly 1.4.2(d), Grades Timber; 1.4.2(e) Selects, grades and marks materials for re-manufacturing from stock or filling orders including tallying, measuring and checking of complete orders and compiling them for dispatch; 1.4.2.(f) in particular, collects payment for goods from customers; 1.4.2, in relation to people such as storemen who maintain its delivery schedules.

PN21

Further across, also at 1.4.3, the general descriptions of skills acquired; 1.4.3(c) Ability to complete simple clerical tasks which are in common with shop assistants; 1.4.3(d) Problem solving skills such as answering of inquiries from customers; and 1.4.3(e) Ability to select suitable methods for completing tasks and planning the order in which to complete them, which reflects the general freedom that shop assistants in completing their work schedules.

PN22

I have checked with the union, who is a principal party to this award, being the Construction, Forestry, Mining and Energy Union. They confirmed to me that level 4 is the appropriate classification for people doing the work of shop assistants under this award.

PN23

THE COMMISSIONER: Yes, all right, thank you.

PN24

MR SMITH: And further, the level 5 and level 6 of this award go towards people with high levels of skill and supervision, such as managers and management employees.

PN25

THE COMMISSIONER: All right. So you are saying for the purposes of this particular application, level 5 and level 6 would be the appropriate - would cover - - -

PN26

MR SMITH: Yes, I would say level 6.

PN27

THE COMMISSIONER: That Magnet Mart generally is bound by this award, Mr Smith, is that what you say?

PN28

MR SMITH: Yes. If I take you to the sheet which has Magnet Mart listed in it, in the schedule, the extract from the schedule, about half-way down the page, it lists Magnet Mart Bowral and Magnet Mart Queanbeyan, which are two of the places of operation of the company. When that is read in conjunction with clause 7, the parties bound, at 7.1.2, are:

PN29

The respondent associations and members thereof and the employers mentioned in the schedule hereto -

PN30

which is Magnet Mart -

PN31

in respect of all their employees.

PN32

And so that goes to all the employees throughout their operations. We would say that that is consistent with the section 149 of the parties bound. Where an employer is bound by two awards, then you have to - we have to resolve the dispute between those two awards. Clause 9 of the Timber Award relevantly sets out the relationship with other awards that 9.2.2 - sorry, 9 point - I think I have cut off part of the award on 9.1.

PN33

THE COMMISSIONER: I do have 9.2.2 in the copy you have handed up to me.

PN34

MR SMITH: In 9.1.1 - sorry, 9.1 goes on, Commissioner, to - - -

PN35

THE COMMISSIONER: I see.

PN36

MR SMITH: And I have inadvertently deleted from my copy the - I do not know if it is on the copy of - on your copy, Commissioner?

PN37

THE COMMISSIONER: Well, it does appear to finish somewhat abruptly.

PN38

MR SMITH: Yes, there should be another half a page to it, which I do not have.

PN39

THE COMMISSIONER: You do not have any copy of it, at all? Do you want to go on with what you are doing, Mr Smith, I can get another copy.

PN40

MR SMITH: Sorry, clause 9 goes on to say, Commissioner, in the part that has been left out, inadvertently left out, is that where there is a dispute between two awards, the Commission should determine which award more appropriately covers the employment of those employees and in particular, Commissioner, in relation to the award we would say you have to look at the coverage clauses of both the Timber and Allied Industries Award and the coverage clauses of the Retail and Wholesale Shop Employees Award, and the relevant clauses, first of all, the ACT Shop Award, Commissioner, covers:

PN41

... employees who are engaged in or in connection with the retail and/or wholesale shop industry in the Australian Capital Territory.

PN42

Therefore it applies to retail generally in the ACT, by virtue of being a common rule award, whilst the Timber Award, at clause 6, more specifically described the industry as the applicant in covering:

PN43

... the display, demonstration, preparation, handling, providing advice and selling of timber and timber related products, hardware and building products, in wholesale timber and merchant retail outlets.

PN44

So, we would say, Commissioner, that the Timber Award is more appropriate for these operations throughout the operation of this company. Definitely within New South Wales it is an application award as a Federal award, but we would say throughout the operations of the company, it is the most appropriate award, being more specifically targeted towards the timber and hardware industries.

PN45

THE COMMISSIONER: Right, thank you, Mr Smith. Mr Davidson?

PN46

MR DAVIDSON: Commissioner, this is - this morning was the first occasion that the SDA has raised this award with us, despite having met with the SDA on three occasions during the process leading to the issue of a notice of intention to make an agreement. During each of those three meetings, the union represented their members' interests in relation to the conditions that apply in the various retail awards, and did not make any mention of the Timber and Allied Industries Award.

PN47

Commissioner, I am instructed by Mr Sallustio that in the period of time that he has been employed by Magnet Mart, which extends to five years, he has not been made aware by the SDA, the CFMEU or the Retail Traders Association of any link between Magnet Mart and that award. So, this is all news to us basically, Commissioner, and to respond properly to the issues that have been raised by Mr Smith, we would require time to have a detailed comparison of the coverage of the awards. As you will know, it can be a very complex matter where there is a conflict between coverage under awards and we would need some time to prepare, Commissioner.

PN48

THE COMMISSIONER: Yes, well, I understand that. Do you have a problem with that, Mr Smith?

PN49

MR SMITH: No, Commissioner. The only reason as to why we did not inform the applicant until this morning was that it was across the weekend when I was preparing for the matter that is following, that it came to my attention in checking various Federal awards that Magnet Mart came up on a search for respondency to the Timber and Allied Industries Award.

PN50

THE COMMISSIONER: All right. Well, I am prepared to adjourn the matter to allow you to prepare a reasonable response to what has been put this morning. So, Mr Davidson, when would you be ready, do you think? And this is not one of the awards, Mr Davidson, that is listed in the statutory declaration for the matter?

PN51

MR DAVIDSON: No, no, it is not, Commissioner.

PN52

THE COMMISSIONER: No, it is not.

PN53

MR DAVIDSON: So there are obviously implications for the certification process.

PN54

THE COMMISSIONER: That is right.

PN55

MR DAVIDSON: Which, if it turns out that award does have coverage, we would be able to deal with those in any event, Commissioner. Commissioner, I think that we would be in a position to be able to respond to those issues later this week, on Thursday or Friday.

PN56

THE COMMISSIONER: Mr Smith, is that difficult for you, Friday? Thursday is not looking good for me, but Friday I can do something, otherwise any day next week is probably reasonable.

PN57

MR SMITH: I can do Friday.

PN58

THE COMMISSIONER: Friday is all right?

PN59

MR SMITH: Right, thank you.

PN60

THE COMMISSIONER: All right, then, shall we say 10 o'clock, Friday?

PN61

MR DAVIDSON: Yes, thank you, Commissioner.

PN62

THE COMMISSIONER: The matter will be adjourned until 10 o'clock, Friday - both matters, the one that was before me and the other. Thank you.

ADJOURNED UNTIL FRIDAY, 25 JANUARY 2002 [11.10am]