AG2001/7355, Transcript of Proceedings [2002] AIRCTrans 351 (7 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2001/7355

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Shop, Distributive and Allied Employees
Association - South Australian Branch and
Another for certification of the Pizza
Haven/SDA Agreement 2001

ADELAIDE

10.05 AM, WEDNESDAY, 23 JANUARY 2002

PN1

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

PN2

MR B. DUFFY: I appear on behalf of the Shop, Distributive and Allied Employees Association.

PN3

MR E. CHRISTOU: I represent Pizza Haven.

PN4

THE DEPUTY PRESIDENT: Yes, Mr Duffy?

PN5

MR DUFFY: Mr Deputy President, this is an application to certify the Pizza Haven/SDA Agreement 2001 pursuant to section 170LJ of the Workplace Relations Act. The agreement is between the SDA and two companies which trade as Pizza Haven and the franchises Pizza Haven. If certified, the agreement would cover Pizza Haven outlets across Australia. Just one notification, sir, which I note - I have just been notified it by my friend here, there's been a change in the master franchise here. Formally it was Glev Franchises Proprietary Limited, that is, G-l-e-v, Franchises. They were master franchise up to 25 December. Since 26 December it is now PHF Australia Proprietary Limited. Their ACN number is 099020630. I notify you that, sir. We have only just been notified of that particular change. That has come through since the documents were lodged.

PN6

THE DEPUTY PRESIDENT: What do you propose in that context?

PN7

MR DUFFY: I'm just trying to think whether there is any alterations that need to be made, therefore for me to change any submissions here, sir. I guess clause number 3 of the proposed agreement is where there would need to be a change. It notes there:

PN8

This agreement shall be binding upon Agador Proprietary Limited and the franchisees of Glev Franchises Proprietary limited listed in schedule 3.

PN9

Now, I guess for the sake of correct notification, that clause may need to be changed there to note that it is now PHF Australia Proprietary Limited with - and the date to which that came into effect. I'm just checking also clause 4. It notes the term of agreement:

PN10

This agreement shall operate from 3 October 2001 and shall remain in force until 2 October 2004.

PN11

Whether some notification needs to be made that, well, franchise up to - from October 3 up to 25 December 2001 was Glev, since that date it is now the other company who I just mentioned. I don't know whether that is - that may be appropriate in the circumstances or - - -

PN12

THE DEPUTY PRESIDENT: Look, my initial view on that is that would be unnecessary because the - providing the agreement is binding on the franchisees - - -

PN13

MR DUFFY: Who are listed in the schedule.

PN14

THE DEPUTY PRESIDENT: - - - who are actually listed in the schedule, in the sense the vehicle under which they become bound which is noted in clause 3.

PN15

MR DUFFY: Yes.

PN16

THE DEPUTY PRESIDENT: It is just a matter of record. Obviously they would be bound at all times, subject only to certification.

PN17

MR DUFFY: Yes. Okay, Deputy President, we accept that is the case. Just in continuing the submissions, section 170LB(2)(n)(a) of the Workplace Relations Act notes that:

PN18

If two or more employers carry on a business project or undertaking as a direct venture or common enterprise, the employers are taken to be as one employer for the purpose of the Act.

PN19

We say that Pizza Haven and its franchisees are a constitutional corporations, that they all operate as Pizza Haven in identical manner to each other. The project, pricing and presentation of the outlets are essentially the same, as is the work performed. The constitutional corporations are banded together and known as Pizza Haven. Our application is accompanies, may it please the Commission, by statutory declarations from Mr Don Farrell on behalf of the SDA and similarly Mr Evan Christou on behalf of Pizza Haven. Mr Christou is authorised to act on behalf of the companies and the franchisees.

PN20

The SDA is an association that has at least one member in each workplace and so is entitled to represent the interests of employees that would be covered by this agreement. Now, Mr Deputy President, with respect to section 170(10A) of the Act the award which was used for comparison purposes in terms of the no-disadvantage test is Pizza Haven/SDA Award 2000. That award was actually simplified, I think, completed a simplification process last year. We submit that there is no disadvantage to employees with respect to their wages and working conditions.

PN21

The wage increases included in the agreement were included in the documentation which was distributed to the employees as part of this process. The employees had the opportunity to have the agreement explained to them and to ask questions. Copies of the agreement were also made available. Furthermore, at least 14 days after this a ballot was conducted. We submit in the circumstances that these sessions were conducted in a way that made it easy for the employees to understand the agreement and furthermore to have the opportunity to raise any questions over ambiguities in the matter.

PN22

The agreement was approved by a valid majority on 24 November 2001. Within 21 days of this date the application to have the agreement certified was made. The agreement contains procedures for settling disputes and that is found at clause 10 of the proposed agreement. Furthermore, the agreement contains an expiry date of 2 October 2004 and that is found in clause 4 of the proposed agreement. Accordingly, we submit in the circumstances that the application before the Commission meets all the necessary statutory requirements of the Workplace Relations Act 1996 and we request that the agreement be certified. If the Commission pleases.

PN23

THE DEPUTY PRESIDENT: Thank you, Mr Duffy. In terms of clause 3, are you seeking leave to amend that provision?

PN24

MR DUFFY: Yes, Deputy President, yes, we would seek leave to make the necessary amendments as per previously discussed.

PN25

THE DEPUTY PRESIDENT: Thank you. Mr Christou, is there anything you wanted to say?

PN26

MR CHRISTOU: I agree with my friend and the work has been coordinated very well and I'm very happy to say that we agree everything - everything that is in the agreement. Thank you.

PN27

THE DEPUTY PRESIDENT: Good, thank you. Yes, I will deal with the application now. Firstly, for reasons which have been appropriately identified by Mr Duffy, it is my view that the Commission both has power and it is appropriate to grant leave to permit the parties to revise clause 3 to reflect the change in legal structure that has taken place in respect to the master franchisor. In that context I also note that that merely recognises the relationship between the parties and in the end the nature of the agreement is identified by clause 3 in whatever form to achieve the same result.

PN28

Secondly, I indicate that subject only to receiving a revised page 2 so as to reflect that change to clause 3, it is my view that the Commission can and should certify this agreement pursuant to the Act. I have noted carefully the procedures adopted by the parties in terms of the employee endorsement process. I have no doubt that given the number of individual employers and work locations involved represented a massive exercise by both the business and in particular the union. It is a logistical exercise that in my view would have obviously required a great deal of resources and in particular to provide the level of information and involvement that the Act requires of the parties.

PN29

It is my view that that has been done and I would commend the parties on the process. In terms of the fact that there is more than one employer involved in this application, I accept for reasons which have been outlined by Mr Duffy that these employers should be considered to be a common enterprise for present purposes. In terms of the agreement itself, in my view it clearly meets the no-disadvantage requirement. It contains all of the requirements as set out in the Act and indeed I would comment that it remains a comprehensive and commendable package.

PN30

In all those circumstances, as I have already advised, I will, subject only to receipt of the revised page 2, formally issue a certificate certifying the agreement pursuant to the Act. The parties will be aware that an agreement in this jurisdiction operates from the issue of such a certificate and it will have a nominal life until 2 October 2004. In that context I note, however, certain retrospective commitments which will operate by administrative action subject only to that certification process.

PN31

Lastly, for reasons which have been clear from what I have already said, I commend the parties and I note that the agreement continues what I understand to be a long and mutually beneficial relationship between the parties and I trust the agreement about to be certified by this Commission will continue to stand you in good stead. The Commission be adjourned.

ADJOURNED INDEFINITELY [10.16am]