AG2002/5816, Transcript of Proceedings [2002] AIRCTrans 4891 (6 December 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

AG2002/5816

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK of the Act
by Can-Do Australia Pty Ltd for certification
of the Can-Do Australia Pty Ltd Casual Employees
Certified Agreement 2002-2005

CANBERRA

4.03 PM, THURSDAY, 21 NOVEMBER 2002

PN1

THE COMMISSIONER: Could I have the appearances please?

PN2

MR P. O'KEEFE: I appear for Can-Do Australia Pty Limited. I am accompanied by MR and MRS B. FIELD, who are the directors of the company and I am also accompanied by MR M. GREENTREE and MR T. GOLEJ, who are the current casual employees of the company.

PN3

THE COMMISSIONER: Thank you, Mr O'Keefe. Go ahead please.

PN4

MR O'KEEFE: Commissioner, before I begin, if I might, with my apologies point out a typing error in the agreement. I have misspelled Mr Greentree's name by omitting an "r" in the signature page and Mr Golej's name by spelling it with an "a", instead of an "o". Just to draw that to your attention. Commission, Can-Do Australia is a small family company. It is involved in the business essentially of removals and relocations of office furniture, particularly in the course of small government contracts. Many of those contracts have been formed with the Department of Defence which, as you know, is a very large department, is often relocating its staff.

PN5

It is a small company, surviving through good times and bad. It uses casual employees because of the nature of it business, because of the interim sporadic and casual nature of its business. The proposed certified agreement before you this afternoon, Commissioner, is an agreement - or a proposal, which is based on the Transport Workers Award which we submit to you as the appropriate to use for these employees because of the nature of their duties, as described in the proposed agreement. The agreement very closely follows the Transport Workers Award in all material respects and, to that extent, it is our submission to you that there is no disadvantage associated with it. Commissioner, other than that, I am happy to address any specific issues which you yourself might have.

PN6

THE COMMISSIONER: Yes, I do a few questions actually, Mr O'Keefe. So, according to the document that is provided with a statutory declaration, the rates of pay are supposedly the award rates of pay, is that right?

PN7

MR O'KEEFE: That is my understanding, Commissioner.

PN8

THE COMMISSIONER: Well, they do not appear to accord with the Transport Workers rate of pay if you add the 20 per cent casual loading. The rates set out in the agreement, you say these people are classified as Grade 2 under the Transport Workers Award?

PN9

MR O'KEEFE: That is correct, Commissioner.

PN10

THE COMMISSIONER: Well, I do not know whether my calculator is playing up but, I mean, I took the Grade 2 rate, added the 20 per cent casual loading and divided it by 38. I did not come up with the amount that is included in clause 11 "Rates of Pay".

PN11

MR O'KEEFE: Commissioner, may I ask you what figure you had?

PN12

THE COMMISSIONER: It was over $15.

PN13

MR O'KEEFE: Commissioner - - -

PN14

THE COMMISSIONER: How did you work the rate out - or what did you believe the Grade 2 rate was under the Transport Workers Award?

PN15

MR O'KEEFE: Commissioner, we took a weekly figure of 447.20 for a loader.

PN16

THE COMMISSIONER: For a loader?

PN17

MR O'KEEFE: Yes.

PN18

THE COMMISSIONER: Well, that is a Grade 2, is it?

PN19

MR O'KEEFE: No, that is a Grade 1.

PN20

THE COMMISSIONER: Grade 1. Well, it is not the right rate for Grade 1 anyway. Grade 1 rate is 465.20. The Grade 2 rate, which I understood - sorry, is one of these people a Grade 2 and one a Grade 1?

PN21

MR O'KEEFE: They are both Grade 1.

PN22

THE COMMISSIONER: I thought you said Grade 2, I am sorry.

PN23

MR O'KEEFE: There is a provision made, Commissioner, for the hiring of a casual Grade 2, for the purposes of driving.

PN24

THE COMMISSIONER: I see. But these people do not fall into the Grade 2. These are just loaders are they, they are not drivers?

PN25

MR O'KEEFE: That is correct, Commissioner.

PN26

THE COMMISSIONER: Well, the loader rate is 465.20.

PN27

MR O'KEEFE: Yes, with my apologies, Commissioner. You are absolutely right. My figure comes to 15.30.

PN28

THE COMMISSIONER: When you take into account the reduction in the public holiday rate of pay, public holiday rate of pay is two and a half times under the Transport Workers Award. This one is not even two times. I will not certify an agreement that includes a clause which says:

PN29

A casual employee in Can-Do Australia may agree to a higher rate of pay in lieu of overtime and penalty payments that may otherwise apply.

PN30

Because I cannot possibly do a no disadvantage without knowing what that higher rate of pay is. For all I know, the higher rate of pay could be well under the award rate with the overtime and penalty, and I cannot approve that. It would not pass the no disadvantage test.

PN31

MR O'KEEFE: Sorry, Commissioner, could you just refer me to that?

PN32

THE COMMISSIONER: 11.5.

PN33

MR O'KEEFE: Thank you.

PN34

THE COMMISSIONER: Clause 15.3:

PN35

Any approved work on a Sunday is paid at the hourly rate of double time.

PN36

That is fine except that under the award, you are supposed to get four hours if you work on a Sunday. I gather that that is supposed to be covered by the four hours minimum on any day?

PN37

MR O'KEEFE: Yes, Commissioner. That is correct.

PN38

THE COMMISSIONER: That is all right. I think under the award, where it says that you get overtime on a daily basis, so if you work more than the required number of hours, you go into overtime, you do not have to go over the 38 for the week. What does the agreement say?

PN39

MR O'KEEFE: The agreement is structured on the basis of going over the 38, Commissioner.

PN40

THE COMMISSIONER: In a week?

PN41

MR O'KEEFE: Yes.

PN42

THE COMMISSIONER: Which is another reduction against the award. I mean, they are matters that could be dealt with by undertakings. I am not concerned about that. I am concerned about the wage rate because these people have obviously agreed to something which is well below - well, when I say well below, is below the award rate. Obviously, they did not - I assume they did not understand what they were doing. If they did understand what they were doing, I am surprised.

PN43

MR O'KEEFE: Commissioner, the actual hourly rate of pay is in excess of both of the erroneous rate, which is in the proposed agreement - - -

PN44

THE COMMISSIONER: I see.

PN45

MR O'KEEFE: - - - and the actual rate which you are referring to. Commissioner, and I would submit if you would be willing to accept undertakings from us in relation to correcting what I think are really in errors in terms of, in this year, some out of date award for the purpose of calculation.

PN46

THE COMMISSIONER: Well, I think, accepting an undertaking to a rate of pay is a bit difficult, Mr O'Keefe, because this is the agreement that will be out there, this will be the agreement that will have the Commission's stamp on it and it will have a rate of pay in it, which is less. Now, I might get an undertaking which says that you will not pay that rate but, on the face of it, an employee would not even know. They would see this and they would say, "Well, that's the rate I'm supposed to be paid". And, you know, I can rely on everybody being totally honest and scrupulous about it, but, personally, if there are only employees, I cannot see what the difficulty is in fixing it. It is not like the Commonwealth public sector when they cannot pay anything until the agreement goes through. I mean there is nothing to stop the employer paying in excess of award rates and he obviously is at the moment. So it is not as though the employees are going to miss out on anything. It is not that difficult to take a vote from two people.

PN47

MR O'KEEFE: Yes, Commissioner.

PN48

THE COMMISSIONER: And it would be a lot better if the agreement was fixed up to reflect the current award rate. The - nobody's going to be disadvantaged by it. It will be dealt with very quickly. You still have to have a 14 day agreement period but there is nothing to have the new agreement have a rate of pay which starts on an earlier date. So you can start the rate of pay today if that is what you wanted to do. So the people will not miss out and I would be much happier with an agreement, one, that does not have a clause like 11.5 in it, because I will not certify it with that clause in there. And I do not see how an undertaking can - apart from - well, I just do not like accepting undertakings when it is a way a clause might be implemented is one thing. But to actually override in total a clause, so the clause no longer exists, is not really something that ought to be part of an undertaking. It ought to be something that is fixed. So if there - - -

PN49

MR O'KEEFE: Sorry, Commissioner. Might I just - - -

PN50

THE COMMISSIONER: 11.5, that is the one about "May agree to a higher rate of pay".

PN51

MR O'KEEFE: Yes, yes.

PN52

THE COMMISSIONER: I do not care if they agree to a higher rate of pay, so long as that higher rate of pay is not less - - -

PN53

MR O'KEEFE: Yes.

PN54

THE COMMISSIONER: - - - than the equivalent award rate with the overtime or penalty rate in it. If it is more, fine.

PN55

MR O'KEEFE: Yes.

PN56

THE COMMISSIONER: I will sign it off tomorrow, but not with no provisos.

PN57

MR O'KEEFE: Yes.

PN58

THE COMMISSIONER: I will not have an award, because I cannot do the no disadvantage test. I will not have an agreement with a clause like that. So if you fix up the rates of pay, do something about that clause and make sure that the rates of pay are fixed up right through because, as I said, currently the public holiday rates of pay are so far under the award. And the advantages are so few as against the award, I would have to say it failed the no disadvantage test. I mean, what you are getting is what the award, is the basic award with very few improvements, if any, if you just take into account the minimum rates and a number of things that are disadvantages. I do not see the point.

PN59

MR O'KEEFE: As you please, Commissioner.

PN60

THE COMMISSIONER: Unless you are saying this is a public interest one where there is a special circumstance when I should agree to something below the award rate.

PN61

MR O'KEEFE: No, Commissioner, we would not be making a - - -

PN62

THE COMMISSIONER: You do not want to be - - -

PN63

MR O'KEEFE: We would not be making a submission on that.

PN64

THE COMMISSIONER: You would not? Fine. All right, well, I do not have a problem. I said if you redo the agreement, run it past the two people concerned, that should not be too difficult, and make sure that it is not less than the award rates, then I will certify it so long as 11.5 is not in there, or something is in there like that but with a proviso that it does not fall below the award rate.

PN65

MR O'KEEFE: As you please, Commissioner.

PN66

THE COMMISSIONER: No problem. All right, I will adjourn. Thank you.

ADJOURNED INDEFINITELY [4.15pm]