AG2002/3654, Transcript of Proceedings [2002] AIRCTrans 3003 (7 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2002/3654

ITeC REPAIR CENTRE (SYDNEY & MELBOURNE)

170LK application for certification of the
ITeC Certified Agreement 2002 (Division 2)

SYDNEY

11.00 AM, TUESDAY, 23 JULY 2002

PN1

THE COMMISSIONER: Could I take appearances please?

PN2

MR E. GEE: If the Commission pleases I seek leave to appear on behalf of the applicant parties. With me this morning is Mr R. Gatt and Mr A. Williamson on behalf of the employer and Mr L. Bridle on behalf of the employees to be covered by the agreement.

PN3

THE COMMISSIONER: Leave is granted, Mr Gee. Yes, would you like to address the application for me please.

PN4

MR GEE: Thank you, Commissioner. This is an application pursuant to part 6B of the Work Place Relations Act. It relates to a certified agreement between the employees of Work Ventures Limited engaged in the business trading as the ITeC Repair Centre in Sydney and Melbourne and Work Ventures Limited. In making this application we refer to and rely on the particulars set out in the application and the statutory declarations executed in support of the application filed in the Commission on 4 July 2002. In the event the Commission has any questions in relation to those documents both Mr Bridle and Mr Gatt are present today, those being respectively the employee and employer representative of the parties.

PN5

I don't wish to make lengthy submissions Commissioner, other than to point out a couple of matters. The application identifies that for the purpose of the no disadvantage test the agreement is to be read in conjunction with the Business Equipment Industry Technical Service Award (1999). If it assists the Commission it is the parties understanding that as Work Ventures Limited is a member of the Australian Industry Group then by operation of clause 7.2 of that Award it is a respondent to that Award and it binds Work Ventures Limited with respect to the employees engaged in the ITeC Repair Centre in Sydney and Melbourne.

PN6

THE COMMISSIONER: Which is the same work that is performed under the Award, Mr Gee?

PN7

MR GEE: Yes, Commissioner. There is a significant proportion of employees engaged in the ITeC Repairs Centres who come from a non-English speaking background. The application identifies that that number is approximately 60 of a total of around 120 staff. The majority of employees who come from a non-English speaking background are Vietnamese speaking and in the process of negotiating and consultations in relation to this agreement the committee ensured that appropriate steps were taken to ensure that all employees had an equal opportunity to participate in the consultations process.

PN8

For example, the Vietnamese speaking employees nominated a staff member who was fluent in both Vietnamese and English to attend all consultative committee meetings and then to report back to all staff who spoke Vietnamese as their primary language on matters discussed in that meeting. All relevant documents that were published were explained to those employees in their primary language. The other employees from a non-English speaking background spoke either Cantonese or Spanish or to a lesser extent came from a Pacific Islander background. I am instructed that those employees did speak English sufficiently fluently to understand and comprehend all communications that were in English, Commissioner. So it is the parties submission that the application meets all of the requirements set out for certification of the agreement and we would respectfully request subject to any questions the Commission may have that the agreement be certified accordingly.

PN9

THE COMMISSIONER: Just one thing Mr Gee I meant to raise earlier with you, the notice of intent to make the agreement forwarded to employees I think in 28 May, do you have a copy of that notice?

PN10

MR GEE: Yes, Commissioner. I was just about to get it, I have copy here I am happy to hand it up if I may approach.

PN11

THE COMMISSIONER: Yes, if you would approach please. I will mark the notice to employees dated 28 May 2002 as A1.

EXHIBIT #A1 NOTICE OF INTENT TO EMPLOYEES DATED 28 MAY 2002

PN12

MR GEE: Commissioner, the document marked as A1 was provided to all employees on or around 28 May 2002 and it is our submission that it meets the requirements set out in section 170LK of the Work Place Relations Act.

PN13

THE COMMISSIONER: Yes, thank you Mr Gee I have read the document.

PN14

MR GEE: Thank you, Commissioner. One final matter, the parties in the agreement would respectfully request the Commission to mark the file as confidential with respect to appendix 1 and appendix 2 of the certified agreement. The parties would request that - - -

PN15

THE COMMISSIONER: I don't actually have an appendix to the agreement. I have a schedule - - -

PN16

MR GEE: I apologise for the terminology, it is schedule 1 and schedule 2 that the parties would seek to have restricted access to the parties alone. If I may explain, the certified agreement was distributed to employees in entirety and all employees had access to the proposed certified agreement including schedules 1 and schedules 2. Those documents did form part of the deliberations and consultations and I am instructed that the proposed agreement including both schedules are included on the company's intranet site and are available to all employees there. The parties characterised the information set out in schedule 1 and schedule 2 as containing information that is confidential to the parties and is critical to the commercial success of the business.

PN17

THE COMMISSIONER: Is schedule 1, job descriptions critical in that regard?

PN18

MR GEE: If I may, yes the parties suggest it is. Another function of Work Ventures Limited is as an accredited training organisation. It does operate in part a commercial venture for the purpose of designing and implementing training courses in organisations. The information contained in schedule 1 includes sufficient intellectual property that it would be used by Work Ventures Limited in designing and implementing training courses for a fee, that it would harm the commercial interest of the business if that information was able to be used by competitors without paying that fee.

PN19

Work Ventures Limited has a number of different business units. It is essentially a not-for-profit charitable organisation, and the ITeC repair centres, to a significant degree, employed persons who were trained by Work Ventures Limited through its training centres. The information set out in schedule 1, it is the parties belief, would allow a competitor of Work Ventures Limited to develop its own training courses such that would deprive Work Ventures Limited of potential income and, indeed, commercial opportunities in the field if that information was made available to the public. If the Commission wishes to explore those matters further the parties are happy to address the Commission on that point.

PN20

THE COMMISSIONER: No, I am hearing your submissions, Mr Gee.

PN21

MR GEE: Thank you. Those are the submissions of the parties, Commissioner, if the Commission pleases. If you have no further questions we would respectfully request that agreement to be certified accordingly with the proviso that schedules 1 and 2 remain restricted to the file and available to the parties to the agreement alone. If the Commission pleases.

PN22

THE COMMISSIONER: Just the normal expiry date, Mr Gee?

PN23

MR GEE: Thank you. The normal expiry date set out in clause 5 of the agreement would ask that the agreement be certified and come into force on or from the date of certification and have a nominal period of 2 years.

PN24

THE COMMISSIONER: That would be to 22 July 2004?

PN25

MR GEE: Yes, Commissioner.

PN26

THE COMMISSIONER: And the submission is that the agreement does not, on balance, disadvantage employees?

PN27

MR GEE: Yes, Commissioner.

PN28

THE COMMISSIONER: I notice the agreement rates are higher than the award rates for what I presume to be the equivalent classification. The agreement rates incorporate some of the allowances in the award, not all the allowances.

PN29

MR GEE: That's correct.

PN30

THE COMMISSIONER: But, of course, there would be other sections of the agreement that you would rely upon, I presume; the hours clause, the bonus clause, severance breaks, leave, flexi-time, it would be those provisions of the agreement - - -

PN31

MR GEE: Yes, Commissioner, that's correct.

PN32

THE COMMISSIONER: Could I just ask you, do you have the results of the actual ballot that was taken by employees to approve the agreement?

PN33

MR GEE: If I may have a moment, Commissioner?

PN34

THE COMMISSIONER: Yes. Mr Gee, I will hear the submissions of Mr Bridle if you would like to place them on the record, or either Mr Williamson or Mr Gatt.

PN35

MR GEE: Commissioner, I can indicate that Mr Bridle was the returning officer for the purpose of the secret ballot and he is able to advise on the results of the ballot.

PN36

THE COMMISSIONER: Yes, all right. Yes, please, if you could.

PN37

MR BRIDLE: Commissioner, it was about 88 per cent was in favour. There were nine, I presume it was nine, invalid votes - sorry, nine against and four invalid votes.

PN38

THE COMMISSIONER: Yes, all right. So, one could say a valid majority.

PN39

MR BRIDLE: Well and truly.

PN40

THE COMMISSIONER: Mr Bridle, is it?

PN41

MR BRIDLE: Yes.

PN42

THE COMMISSIONER: Mr Bridle, thank you.

PN43

MR GEE: If the Commission pleases, those are our submissions.

PN44

THE COMMISSIONER: Yes. Thank you, Mr Gee, for your submissions. This is an application by Work Ventures Limited trading as Sydney ITeC Repair Centre and the Melbourne ITeC Repair Centre for certification of an agreement made under section 170LK of the Act. The agreement is to be known as the ITeC Certified Agreement 2002, and on the basis of the statutory declaration filed and the submissions made by Mr Gee and supported by Mr Bridle in relation to the ballot, I am satisfied that the statutory requirements of the Act have been met. The agreement specifies a nominal expiry date of two years from date of certification, which would be 22 July 2004.

PN45

The agreement, on the material before me, satisfies the requirements of the no disadvantage test in that employees on balance will not - the agreement on balance will not result in a reduction of the overall terms and conditions of employment under the relevant award or laws. The parties have requested that schedule 1 and 2 to the agreement be held as a confidential document. I have decided to accept the position of the parties and will direct that schedule 1 and 2 of the agreement is to be held in a sealed envelope on the file and marked "Confidential", to be opened only by a member of the Australian Industrial Relations Commission. The application is granted as of today's date and formal certification will issue in due course.

PN46

I thank you for your attendance this morning, gentlemen, and the Commission is adjourned.

ADJOURNED INDEFINITELY [11.16am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 NOTICE OF INTENT TO EMPLOYEES DATED 28 MAY 2002 PN12