AG2001/7130, Transcript of Proceedings [2002] AIRCTrans 433 (18 February 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT02228

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2001/7130

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Fulham Correctional Catering Officers for
certification of Fulham Correctional Catering
Officers Certified Agreement 2001

MELBOURNE

10.05 AM, WEDNESDAY, 30 JANUARY 2002

Continued from 10.12.01

PN35

THE SENIOR DEPUTY PRESIDENT: Is there any change in appearance?

PN36

MR D. McLAUGHLIN: Yes, there is, your Honour. I seek leave to appear for Australasian Correctional Management Pty Limited this morning, and with me is MR R. PROKOP and MR R. CLARK, who is one of the catering officers subject to the agreement.

PN37

THE SENIOR DEPUTY PRESIDENT: No objection to leave discernible, so leave is granted, Mr McLaughlin. Yes, I would just indicate that I have received the amended statutory declaration which does set out clauses 6.3 and 6.4 variously specific clauses resulting in reductions against the designated award and specific clauses which result on the balance and there being no overall reduction. Also received from Mr Prokop a set of documents being the rosters for an operation and a comparison of a set of documents being the rosters in operation and a comparison of monetary outcomes under the award agreement in respect to each of those rosters.

PN38

MR McLAUGHLIN: Yes, your Honour. The reason that Anderson Legal is appearing today is that following the hearing on 10 December, I think it was, the company sought our assistance in meeting some of the requirements that had arisen from that hearing. That resulted in, I think, an application being made for designation of an award, and I think that was done on 27 December.

PN39

THE SENIOR DEPUTY PRESIDENT: And the relevant award has been designated, yes.

PN40

MR McLAUGHLIN: Indeed. We assisted with the preparation of the amended statutory declaration which you have referred to this morning, and we have also provided some assistance to the company in constructing the comparison material which you have received by e-mail.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR McLAUGHLIN: I don't know whether you were able to - well, the copy of the material I received by e-mail was in fairly small print and a bit difficult to read. I don't know whether you were able to magnify that when you printed it off.

PN43

THE SENIOR DEPUTY PRESIDENT: I think my associate has magnified it to some extent.

PN44

MR McLAUGHLIN: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Sufficient for my deteriorating eyesight.

PN46

MR McLAUGHLIN: Just to confirm, your Honour, what you should have received was a one-page document which set out the roster arrangements for the company.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

MR McLAUGHLIN: And perhaps this might assist if I hand that up, sir.

PN49

THE SENIOR DEPUTY PRESIDENT: Very well. Perhaps I will mark them as you hand them up. I will mark the rosters exhibit ACM1.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR McLAUGHLIN: And ACM1 sets out the roster for catering officers.

PN52

THE SENIOR DEPUTY PRESIDENT: I am sorry, that should be ACM4. There is already three exhibits in the matter.

PN53

MR McLAUGHLIN: Yes, your Honour.

EXHIBIT #ACM4 ROSTERS FOR CATERING OFFICERS

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, sorry.

PN55

MR McLAUGHLIN: It sets out the model roster for catering officers. In effect, there are two rosters that apply to category - well, sorry, there is four rosters. Category 1 which commences on a Monday and has an officer working 12 hours on Monday and 12 hours on Tuesday, then has Wednesday, Thursday off, works 12 hours Friday, 12 hours Saturday and eight hours on Sunday. And then in the next week of that fortnight, Monday and Tuesday are off, Wednesday and Thursday are worked, Friday, Saturday and Sunday are off.

PN56

Then the next stage of the roster is set out there as category 2 and then category 3 and then category 4. And they are all - all those hours are 6 am to 6 pm hours. This is not a 24-hour operation. So it is either 6 am to 6 pm or 6 am to 2 pm or 10 am to 6 pm.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes.

PN58

MR McLAUGHLIN: If you see in category 4 on the Sunday in the middle of the roster it is 10 am to 6 pm. The next line headed To Fill, they are shifts that are required to be filled by casual staff. The next heading is Food Services roster for casual catering officers. You will notice there are no times set out in there because obviously being casual catering officers they are not actually rostered as such. They are required to fill in where there are gaps. The only definite times when they are required to fill in is on those Saturdays and Sundays that are identified.

PN59

THE SENIOR DEPUTY PRESIDENT: So there are - I am not sure how you would describe them - non-casual employees working the Monday to Sunday rosters and it is intended that there be casuals engaged definitely on the weekends.

PN60

MR McLAUGHLIN: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: And there may be a need for some further casual supplementation as the need requires.

PN62

MR McLAUGHLIN: Yes. There is a need for casuals, those casuals who are required to work weekends do also work other times during the Monday to Friday periods. Just in terms of the number of staff there are four full time catering officers, two casual catering officers.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes.

PN64

MR McLAUGHLIN: One catering supervisor and for the purposes of completeness, one food services manager but the manager is not covered by this agreement.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes. So that is the seven identified in the statutory declaration.

PN66

MR McLAUGHLIN: That is correct.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN68

MR McLAUGHLIN: Well, in total that is eight.

PN69

THE SENIOR DEPUTY PRESIDENT: I am sorry, there is seven plus the food services manager who is not covered by the agreement.

PN70

MR McLAUGHLIN: There is seven, that is correct. That is correct. The third line on ACM4 is the roster for the catering supervisor. That person works Monday to Friday 8.30 am to 4.30 pm and then there is also the roster for the food services manager. Now, two other documents which you should have received by e-mail, perhaps the first is applying those rosters to - or having the award applied to those rosters.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes.

PN72

MR McLAUGHLIN: And if I could hand those up. And then also you should have received a document which sets out the application of the agreement to those rosters.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, I have. So the award document will be marked ACM5.

EXHIBIT #ACM5 AWARD DOCUMENT

EXHIBIT #ACM6 AGREEMENT DOCUMENT

PN74

THE SENIOR DEPUTY PRESIDENT: Yes.

PN75

MR McLAUGHLIN: Now, your Honour, the way to read these documents is on ACM5 the first roster set out there for a food services roster cook grade 4 which culminates in a total payment of $1458.44 for the fortnight. You compare that to the first table on ACM6, food services roster, catering officers, and the total payment there of $1559.52.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. The position is that the employee is required to be at the workplace, in effect, for the same period of time, but under the award there is a .5 hour lunch which is not included within paid hours.

PN77

MR McLAUGHLIN: That is right, whereas under the agreement there is a paid meal break included in the 12 hours.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, so they are working - well, they are paid, sorry, for eight hours, but still working the 76.5.

PN79

MR McLAUGHLIN: Yes, that is correct.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, because they are having the half hour lunch break.

PN81

MR McLAUGHLIN: The half hour paid meal break, that is correct.

PN82

THE SENIOR DEPUTY PRESIDENT: That is correct. And so the comparison follows down between ACM5 and ACM6. The second table on ACM5 for a food services roster cook grade 4 equates to the second table under ACM6, and again the figures are the same, $1458.44, as compared to $1559.52. The next table on ACM6 shows a casual catering officer only working on Saturdays and Sundays on those shifts identified as the fill-in shifts on ACM4, and the comparison there between ACM6 and ACM5 shows that in fact the award would provide greater payment to an employee working that style than an employee - a casual person working just Saturday and Sunday under the agreement.

PN83

THE SENIOR DEPUTY PRESIDENT: And that is because of the effect of the casual loading, but more particularly the absence of the Saturday Sunday rates.

PN84

MR McLAUGHLIN: That is right. Now, that comparison is included just for completeness because I am instructed that no casual solely works Saturday and Sunday in that manner. The real comparison for casual catering officers appears in the next table down where you will see on ACM5 the food services roster casual cook grade 4, and that has a total payment of $1586.66. That compares across to ACM6 which has a total payment of $1871.42.

PN85

THE SENIOR DEPUTY PRESIDENT: So the position relates to in fact there are no casual employees working exclusively Saturday and Sunday.

PN86

MR McLAUGHLIN: That is correct.

PN87

THE SENIOR DEPUTY PRESIDENT: And in fact they are rostered - - -

PN88

MR McLAUGHLIN: A more typical roster - or a more typical pattern of work is set out in that casual cook grade 4, the fourth table on ACM5 and compared to ACM6.

PN89

THE SENIOR DEPUTY PRESIDENT: Which involves working a mixture of weekdays, weekends, sometimes not working the weekends.

PN90

MR McLAUGHLIN: That is correct. And then the final comparison is for the cook grade 5 under the award relates to the catering supervisor under the agreement, and the comparison there is $1120.50 as compared to $1713.28. So we say on the basis of that material, by comparing actual patterns of work and the application of the award and the agreement, the agreement clearly does not disadvantage employees.

PN91

THE SENIOR DEPUTY PRESIDENT: Having regard to the manner in which work is actually undertaken.

PN92

MR McLAUGHLIN: That's correct and the actual rosters that are worked.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR McLAUGHLIN: The style of work. In addition the agreement provides for five weeks annual leave for catering officers and when you compare that to the four weeks plus 17_ per cent loading under the award again the agreement doesn't disadvantage employees. The same for the catering supervisor because of their - they don't get additional leave but because of the actual rates paid under the agreement as compared to the award leave is worth more.

PN95

THE SENIOR DEPUTY PRESIDENT: That more than covers the 17_ per cent.

PN96

MR McLAUGHLIN: Indeed.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes.

PN98

MR McLAUGHLIN: Similar comparisons are made there for sick leave. The agreement provides additional hours of sick leave but also because the sick leave would be calculated at the agreement rates rather than the award rates in value terms it's greater. There are some additional leave provisions provided under the agreement. Higher duties - - -

PN99

THE SENIOR DEPUTY PRESIDENT: Is there anyone employed have access to military leave presently?

PN100

MR McLAUGHLIN: I am not sure of that.

PN101

MR CLARK: I didn't quite hear that last bit.

PN102

THE SENIOR DEPUTY PRESIDENT: Is there anyone presently employed who requires access to military leave? Presumably any reservists.

PN103

MR CLARK: We only had one and he is over in Western Australia.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes.

PN105

MR McLAUGHLIN: Not in specific catering but in other areas of the Correctional Officers the answer would be yes.

PN106

THE SENIOR DEPUTY PRESIDENT: It does occur from time to time. Yes, very well. I doubt whether it is going to be a significant factor in any case.

PN107

MR McLAUGHLIN: No, I think not, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. But it does comprehensively set out the various benefits.

PN109

MR McLAUGHLIN: Yes, your Honour. Higher duties. This is a difference between the award and the agreement. Under the award higher duties would be paid if it was worked for more than two hours in a day. Under the agreement it only applies after three consecutive shifts. In fact the agreement is an improvement on what previously applied under the Australia Workplace Agreements whereby higher duties was only paid after two weeks of working at a higher classification. It has been brought back to three days. It hasn't been brought back as far as the award but my instructions are that there isn't a great incidence of higher duties work undertaken.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes. Well, presumably given the designation of an award absent any agreement, workplace or otherwise, the provisions of part 15 of the Act the Victorian minimum conditions would otherwise apply?

PN111

MR McLAUGHLIN: Yes, that's right.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes. Which is not relevant for the no disadvantage test but is relevant to what employees would otherwise be earning.

PN113

MR McLAUGHLIN: Yes, if not for their AWAs.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN115

MR McLAUGHLIN: And then the other difference is that if employees are required to work on public holidays that are not part of their ordinary hours then there is a different penalty rate that applies. Under the awards double time and a half whereas under the agreement it is time and a half. Employees are regularly rostered to work public holidays and my instructions are that under their rosters on average they would work five public holidays a year as part of their ordinary time not as additional being called in to work on public holidays.

PN116

The award recognises that ordinary time for public holidays can be worked as ordinary time as does the agreement. The award would provide for either an additional day's pay or an additional day's leave and we say that the five weeks annual leave provided for catering officers goes part way to meeting that requirement under the agreement - under the no disadvantage test.

PN117

THE SENIOR DEPUTY PRESIDENT: Yes. The casuals don't benefit from the additional leave, is that correct?

PN118

MR McLAUGHLIN: No, that's right, casuals would not benefit from that.

PN119

THE SENIOR DEPUTY PRESIDENT: So they would - it would depend on the incidents that they worked public holidays?

PN120

MR McLAUGHLIN: Yes. I am instructed that casuals may be required to work public holidays if a full time officer is sick or otherwise not present for their roster although it is not - it is only to fill in if the person who is meant to be there on the roster isn't available for some reason.

PN121

THE SENIOR DEPUTY PRESIDENT: Exhibit ACM6 indicates public holiday work is paid at 1.5 - - -

PN122

MR McLAUGHLIN: Yes.

PN123

THE SENIOR DEPUTY PRESIDENT: - - - times the hourly rate.

PN124

MR McLAUGHLIN: Yes.

PN125

THE SENIOR DEPUTY PRESIDENT: Very well.

PN126

MR McLAUGHLIN: We would also point out, your Honour, that the ACM5 has been calculated on the basis of the cook grade 4 rate under the award for catering officers and the cook grade 5 rate for the supervisor. They are the highest rates that can be used from the award that apply under the award so that the comparison between the award and the agreement is, if you like, worst case scenario. It is on the assumption that all employees would be classified as a cook grade 4 and that the supervisor would fall in the classification cook grade 5 which I am instructed is not necessarily the case. They may in fact be in lesser classifications under the award.

PN127

THE SENIOR DEPUTY PRESIDENT: What are the catering officers actually doing? Are they cooks or - - -

PN128

MR McLAUGHLIN: I might - - -

PN129

THE SENIOR DEPUTY PRESIDENT: Yes.

PN130

MR PROKOP: The catering officers basically prepare large volumes of foodstuffs and they are assisted in that task by a number of inmates that also work in the kitchen. Monday to Friday there is a supervisor present basically who would direct the order of work and, yes, that is basically it in a nutshell.

PN131

THE SENIOR DEPUTY PRESIDENT: What does the award provide? Grade 4 is a cook are there other levels of cook?

PN132

MR PROKOP: Under the award a grade 3 will basically encompass the duties that our catering officers are doing at the moment but grade 4 also has reference to supervision of other staff. In this case the supervision would basically be limited by the other inmates working in the kitchen facility.

PN133

THE SENIOR DEPUTY PRESIDENT: So your position is that certainly - the comparison is certainly - well, the level 4 cook is - the employees would be graded no higher than cook grade 4 and it is arguable they may in fact be graded lower.

PN134

MR PROKOP: That's correct.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN136

MR McLAUGHLIN: Your Honour, on the basis of that material and the statutory declaration - the amended statutory declaration that has been filed - we would seek that the agreement be certified.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN138

MR McLAUGHLIN: And ask that that certification take place from today's date.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Clark, can I ask you the manner in which the agreement was negotiated. How were employees involved in that process?

PN140

MR CLARK: Well, we sat down with management and they asked us what we wanted in comparison to our old agreement and we told him and then it was negotiated out from there. And then once we had worked out what we want sort of a lot of toing and froing they finally came back with an agreement. We took a vote on it and we agreed that was what we would work for and that's what we would do.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes. And each of the seven employees is involved in that process?

PN142

MR CLARK: Yes.

PN143

THE SENIOR DEPUTY PRESIDENT: And the vote? Yes. And can I ask you are you able to confirm Mr McLaughlin's submission that there is not a situation of employees working - casual employees working exclusively Saturdays and Sundays?

PN144

MR CLARK: No. In nearly five years there when we first started that was actually a shift but it stopped after that.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that. Yes, thank you all. This is an application pursuant to section 170LK by Australasian Correctional Management Proprietary Limited for the certification of the Fulham Correctional Centre Catering Officers Certified Agreement 2001, an agreement made between the company and its seven employees engaged in catering functions at the Fulham Correctional Centre. The matter had been previously listed at which time Mr Prokop put extensive submissions as to the background to the agreement.

PN146

The employees concerned are not bound by - I am sorry. The company in respect of the employees concerned is not bound by an order of the Commission. In those circumstances application was made for designation of award and in December 27 2001 the Catering Victoria Award 1998 was designated as the appropriate award to be used for the purpose of deciding whether the agreement passes the no disadvantage test.

PN147

Arising out of the earlier hearing the amended statutory declaration has been lodged and in accordance with the request of the Commission materials have been provided setting out a comparison of the net effect of both more favourable and less favourable terms and conditions of employment under the agreement as compared with the designated award. I have had an opportunity to consider that material and have now had the benefit of submissions by Mr McLaughlin on behalf of ACM and I am satisfied that the relevant requirements of the Act have been met.

PN148

I note that the agreement does contain a nominal expiry date which is three years after certificate, 19 January 2005. The agreement does contain procedures in clause 7 for settling disputes. The agreement has been approved by a valid majority of employees and within the time - and the application has been lodged within the time specified by the Act. I am satisfied on the basis of the statutory declaration and the brief explanation by Mr Clark of the process for which the agreement was negotiated that the agreement had been negotiated in a manner consistent with the requirements of the Act and in particular that notice of intention to enter into the agreement was given to employees.

PN149

Advice was given as to their rights to representation within that notice. employees were given an opportunity to consider those agreements and to enter into negotiations as to the terms of the agreement which finally arose between the parties and that the agreement was provided to employees for their consideration for a period of 14 days prior to approval by a valid majority as is required by the Act. In relation to no disadvantage I am satisfied that the proposed agreement does meet the no disadvantage test in the terms set out in 6(e) of Division 9 of the Act.

PN150

And specifically I am satisfied that whilst there are within the agreement terms and conditions less beneficial than those provided for by the designated award certification of the agreement would not result on balance in reduction of the overall terms and conditions of employment of those employees under the designated award and any relevant law of the Commonwealth, State or Territory.

PN151

In respect to no disadvantage test the amended statutory declaration has set out at clause 6.3 various provisions which are less beneficial than the designated award and set out in clause 6.5 are more beneficial terms and conditions which result, on balance, in there being no reduction in the overall terms and conditions of employment of employees under the agreement most particularly the rate of pay which is substantially in excess of that provided for by the award.

PN152

The ACM has provided in exhibits ACM4 to 6 information in relation to rosters applicable to employees under the award and a comparison of the net effect of the various more beneficial and less beneficial provisions of the agreement against the award for each of those rosters. In respect to full time employees it is apparent that notwithstanding some less beneficial conditions the overall effect is one of an overall improvement in terms and conditions applicable to those employees.

PN153

In respect to casual catering officers a similar outcome is apparent having regard to typical roster pattern applied to casual employees who will be bound by the - covered by the agreement. In that respect ACM contends that the typical pattern is that set out in the fourth panel of exhibits ACM5 and 6 and that there is no pattern of weekend work only for casual employees, a position confirmed by Mr Clark an employee representative engaged by the company.

PN154

I am satisfied, having regard to what has been put by Mr McLaughlin and confirmed by Mr Clark, that I should have regard to the typical pattern for casual catering officers which indicates no - an improved position in terms of the overall terms and conditions applicable. That position applies equally to a catering supervisor. Having regard to all of that material I am satisfied as I have already indicated that approval and certification of the agreement would not result in balance in reduction in the overall terms and conditions of employment of employees under the award - designated award - and any relevant law.

PN155

Accordingly I am satisfied that each of the relevant requirements of the Act have been met and in those circumstances the Commission must certify the agreement in accordance with section 170LT of the Workplace Relations Act 1996. I now certify the agreement in the terms entered into between the company and its employees. The agreement shall come into force on 30 January 2002 and shall remain in force until 29 January 2005. A copy of the signed certificate will be available to the parties.

ADJOURNED INDEFINITELY [10.36am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACM4 ROSTERS FOR CATERING OFFICERS PN54
EXHIBIT #ACM5 AWARD DOCUMENT PN74
EXHIBIT #ACM6 AGREEMENT DOCUMENT PN74