AG2002/5174, Transcript of Proceedings [2002] AIRCTrans 4892 (6 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/5174

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by L.K. Vineyard Management Pty Limited re
certification of L.K. Vineyard Management
Certified Agreement 2002

ADELAIDE

9.40 AM, THURSDAY, 21 NOVEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have some appearances please?

PN2

MR C. CINI: Good morning, sir. If it pleases the Commission, I appear on behalf of the employer.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Cini. I understand I have Mr Gill on a telephone line to Clare, is that correct, Mr Gill?

PN4

MR GILL: Yes, that is right.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Gill, I understand further, you are an employee spokesperson, is that correct?

PN6

MR GILL: That is correct.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Cini.

PN8

MR CINI: Thank you, sir. We have returned here obviously to address two specific issues in relation to the requirements of section 170LK, as a result of the last hearing we have embarked on doing that. Firstly, sir, I must say that there have been some delays in which I must apologise for in coming back to you. I have had consultation with the employer and been assured that in presenting the agreement to the employees again, they were given every opportunity to consult a union and chose to rely on Mr Gill, who they have elected as their representative. We have provided the documentation to confirm that.

PN9

The other issue, sir, is the minimum, or the no disadvantage rule in relation to the maximum hours per day and per week. We have amended clause 2(b) to read:

PN10

Ordinary times, means 12 hours in any one day, or 150 in any period of four consecutive weeks.

PN11

Which we now understand is inconsistent with clause 9(a)(1), where there is reference to a minimum of 150 hours in any 4-week period. Sir, I have taken instructions from the employer who has assured me that the word "minimum" should not be there, but it should read "maximum", and equally I would suggest that if we are going to go down that path we should insert the word "maximum" in 2.5 prior to 150, to allay those concerns that were raised at the last hearing.

PN12

Another issue that came out as a result of the meeting that was subsequent to it, it was drawn to my attention that the employer is not a member of the SAFF, which means that I wrongly informed you last time and I would like to correct that, so that he is not a member, or the employer is not a member of the South Australian Farmers' Federation. However, they are seeking to use the Federal Pastoral Industry Award 1998, as the document to underpin this agreement.

PN13

For the reasons we set out last time at the last hearing, we have looked at the scope of the Pastoral Industry Award, as well as probably another award in the State Wine and Spirits Award, and there is no link with any winery with this organisation. It produces some 700 tons of grapes a year, that is its sole function and it supplies those grapes to three different wineries located in the Barossa and the Clare district, but it has no direct link with the wineries other than that. Sir, I thought it is fair I should bring that to your attention because I was under the wrong impression at the last hearing.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, and I would have to say that the statutory declarations lead me to the view that the parties were saying that there was respondence to the Pastoral Industry Award.

PN15

MR CINI: Sir, yes, it was part of the reason for me reaching the conclusion I did, but it wasn't - I wasn't able to establish that until a casual conversation took place some time later, because I was firmly of the view that they were members when, in reality on checking, they are not.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Cini, this question of the appropriate award is not quite so simple. The Act requires that in the absence of an award to which the employer is clearly respondent, then I need to make a determination as to the appropriate award.

PN17

MR CINI: Yes, sir.

PN18

THE SENIOR DEPUTY PRESIDENT: Now, I don't suppose you have in front of you a copy of the Pastoral Industry Award?

PN19

MR CINI: Fortunately, yes, I do, sir.

PN20

THE SENIOR DEPUTY PRESIDENT: You do?

PN21

MR CINI: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: Perhaps you could tell me then, how it is in your view that the Pastoral Industry Award is in fact - and I take it that means the Federal Pastoral Industry Award - - -

PN23

MR CINI: Yes, sir, yes. Sir, I wouldn't rely on the State Pastoral Award.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, I have a very low opinion of that award and I would have to say I'm appalled that the parties to the award would let it sink to the level that it has, such, that it cannot be characterised in any way as a safety net. Leaving that aside, perhaps you could tell me how it is then that you consider that the Pastoral Industry Award ought to be nominated as the appropriate award for the purpose of the no disadvantage test?

PN25

MR CINI: Sir, under clause 5.4.1 of that award under the heading of: Who Does The Award Apply To?

PN26

The Award shall apply to all employees -

PN27

amongst other things, sir, I have just abbreviated -

PN28

involved in the sewing, raising, or harvesting of crops, the preparation or treatment of land for any of these purposes...

PN29

And so forth. It is that aspect of that clause that I relied on to suggest that it is the appropriate award. Beyond that, there is some doubt as to whether there is any award coverage because there is no link with any winery. Sir, I don't know if it is appropriate to mention, but in the State jurisdiction where enterprise agreements have been approved, and I appreciate the criteria is different, the Pastoral Industry Award has been accepted as an award in vineyards.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR CINI: For what it is worth, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: Mr Cini, I'm going to need to look at that question in a little more detail myself.

PN33

MR CINI: Yes, certainly.

PN34

THE SENIOR DEPUTY PRESIDENT: Because of the information provided to me on the previous occasion and, indeed, the information contained in the statutory declaration, I don't have in front of me the Pastoral Industry Award, such, that I would be able to make a determination pursuant to section 170XE of the Act.

PN35

MR CINI: I appreciate that, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: Now, thank you, Mr Cini.

PN37

MR CINI: Thank you, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: The agreement has application, or is proposed to have application for a 2-year period?

PN39

MR CINI: Sir, there is an inconsistency in the document which, unfortunately, was discovered after we lodged the document with you. The intent was that it be for 3 years. Clause 4.1 refers to "2 years", but the form R30 in clause 6.7 refers to "3 years". I have taken instructions from the employer who has assured me that it is a 3-year term, and certainly in the discussions I've had with him that has been the case.

PN40

THE SENIOR DEPUTY PRESIDENT: How do the proposed wage increases then apply over that 3-year period, Mr Cini?

PN41

MR CINI: Sir, I think there was some - just bear with me - in clause 10.2: the minimum rate shall be not less than 28,000 per annum. That is considerably above the provisions of the Federal Award.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, but there is no mechanism set out in the award to change that minimum over a 3-year period.

PN43

MR CINI: Sir, I think it is fair to say, you are right, to the extent that there is no formula there, however, it does refer to: a minimum all throughout the remuneration clause, so it does raise the issue, I guess that it will never fall below the award rate.

PN44

THE SENIOR DEPUTY PRESIDENT: What you are proposing to me though, are two fairly fundamental changes to the document that was put to employees. I will hear Mr Gill's view in that regard in a moment.

PN45

MR CINI: Right.

PN46

THE SENIOR DEPUTY PRESIDENT: But the antithesis of "minimum" is "maximum" and you want me to change "minimum" to "maximum" in terms of ordinary hours, and you want me to change a provision, in effect, set out in clause 4.1 for the term of the agreement to move from a 2-year term to a 3-year term. As I understand the submissions you are making, it is that those changes should be put into effect by way of undertakings.

PN47

MR CINI: Sir, yes. All we can say is there has been a typographical error at 4.1.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR CINI: All the negotiations and the intent all throughout the whole process has been for 3 years. Unfortunately, that slipped through our guard in checking the document, so as far as the intent and negotiations go, for all intents and purposes it should be "3 years", and that would be consistent with the other document which states that.

PN50

THE SENIOR DEPUTY PRESIDENT: See, the "2 year" versus "3 year" change is such that I'm having awful difficulty conceiving that section 170LK(7) or (8) of the Act is such that the Act envisages that that sort of change could be remedied by way of an undertaking.

PN51

MR CINI: Well, I suppose - - -

PN52

THE SENIOR DEPUTY PRESIDENT: It is that issue upon which I invite your comment. Perhaps before you do comment it is section 170LK(8) which reads:

PN53

If a proposed agreement is varied for any reason after the notice is given, the steps in subsections (2), (3), (5) and (7) must again be taken in relation to the proposed agreement as varied.

PN54

MR CINI: Sir, I guess what I'm saying - you are quite right as far as the document goes. As far as the negotiations go - and I certainly would be interested to hear Mr Gill's views - but as I understand it, at all times the discussion did not refer to "2 years". all the negotiations and consultation referred to "3 years".

PN55

THE SENIOR DEPUTY PRESIDENT: I can understand what you are saying, but what you are asking me to do is to certify an agreement for a year longer than the actual agreement specifies, and the issue that I'm asking you to comment on is whether or not the Act allows me to do that because I need to be clear on it. I'm not sure that it does.

PN56

MR CINI: On that basis, that may be I guess we are faced with two options, either to rely on it as a 2-year term, subject to me taking instructions from the employer. Or, alternatively, having some written documentation from the employees amending it to "3 years" and we would allow the 14 days to lapse.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, well, you see there is a third option. It is conceivable that the agreement could be certified, subject to the question of the designated award, and that in terms of the term of the agreement it could be certified for a 2-year period. The parties could then seek to amend the agreement, or vary it in accordance with section 170MD(2), so as to change the "2-year term" into "3 years".

PN58

MR CINI: Sir, whatever is the most convenient from the Commission's point of view, I would be prepared to put that to the employer.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Cini. Now, Mr Gill. Can you hear me, Mr Gill.

PN60

MR GILL: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: I need to advise you that I'm having some difficulty hearing you in return - - -

PN62

MR GILL: Yes .....

PN63

THE SENIOR DEPUTY PRESIDENT: So I will do a trade with you, I will speak up as loudly as I can, if you too can manage to speak up as loudly as you can.

PN64

MR GILL: Okay.

PN65

THE SENIOR DEPUTY PRESIDENT: Mr Gill, I have read your statutory declaration and I understand that you can confirm to me that the employees to be covered by this proposed agreement were given written advice, at least 14 days prior to their vote on the agreement, which advice contained a copy of the proposed agreement and an invitation for the employees to invoke the assistance of a union, should they wish to do so. Is that correct?

PN66

MR GILL: That is correct.

PN67

THE SENIOR DEPUTY PRESIDENT: Then, the second issue that I need to raise with you goes to the provisions of clause 9A(1). Do you have that clause in front of you?

PN68

MR GILL: Yes.

PN69

THE SENIOR DEPUTY PRESIDENT: 9A(1), currently specifies that:

PN70

Permanent employees ordinary hours, shall mean a minimum of 150 hours in any period of 4 consecutive weeks.

PN71

Now, Mr Cini has put to me that the intention was that the word "minimum" be replaced with the word "maximum". Did you have discussions with the employer in that context?

PN72

MR GILL: No. No, we didn't.

PN73

THE SENIOR DEPUTY PRESIDENT: So the document, or the discussions with the employer over the document, did they cover the issue of a minimum, or maximum number of hours at all?

PN74

MR GILL: Yes.

PN75

THE SENIOR DEPUTY PRESIDENT: I'm going to need to ask you to fulfil your end of the bargain again and speak up a little more for me.

PN76

MR GILL: Sorry.

PN77

THE SENIOR DEPUTY PRESIDENT: Otherwise, Mr Cini and I will end up with our ears glued to the telephoned.

PN78

MR GILL: We have - and we did speak about an issue of hours worked per day. We put the maximum hours in there - - -

PN79

THE SENIOR DEPUTY PRESIDENT: Of 12 per day?

PN80

MR GILL: Yes.

PN81

THE SENIOR DEPUTY PRESIDENT: Now, did you speak at all about a minimum, or a maximum number of hours in any 4-week period?

PN82

MR GILL: No.

PN83

THE SENIOR DEPUTY PRESIDENT: I see. Okay, well, let's move then to clause 4.1. Can you turn to that clause 4.1 for me?

PN84

MR GILL: Yes.

PN85

THE SENIOR DEPUTY PRESIDENT: Did you discuss with the employer the term of the agreement, that is, how long it would last for?

PN86

MR GILL: Yes. During our meetings it was discovered that the agreement said "2 years", whereas, our - our understanding was that it was going to run for "3 years", and that was marked as a typographical error.

PN87

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Gill, can I take it that you remain the nominated employee spokesperson?

PN88

MR GILL: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Gill. Mr Cini, there are three issues that I'm grappling with. As I've indicated to you previously, I'm going to take the question of the designated award away and consider the extent to which section 170XF allows me to determine in the situation before me that the Pastoral Industry Award is in fact the appropriate award.

PN90

The second issue relates to the term of the agreement and I will indicate to you now that, notwithstanding, that the parties may have intended that 2 years be discussed, or be set as the period of operation of the agreement - sorry, that "3 years" be set as the period of operation of the agreement, the actual document spells out "2 years", and I'm not prepared to change that.

PN91

Equally, I do not consider that an undertaking that might be given as to the intention is such that I can use that undertaking to extend to the life of the agreement. I consider that to be contrary to the intention and the operation of section 170LK of the Act. So if I'm satisfied that in other respects the agreement can be certified I advise now that it will only be certified for a period of "2 years".

PN92

MR CINI: Thank you, sir.

PN93

THE SENIOR DEPUTY PRESIDENT: Now, the third question represents a significant difficulty for me and what I'm going to propose to you there is that you have a discussion with the employer. If you wish you can delay that discussion until such time as you have had the opportunity to collect the transcript of today's proceeding. In particular, refer the employer to Mr Gill's statement, which seems to me to expose the possibility of some confusion over what was discussed, or not discussed.

PN94

I'm going to invite you to provide to me a document that would be signed by the employer and by each of the three employees which spells out that the intention underpinning cause 9A(1) was that: for the purpose of determining the various entitlements which shall accrue to permanent employees, ordinary hours or ordinary time shall mean a maximum of 150 hours in any period of four consecutive weeks.

PN95

And a maximum of 12 hours in any one day. Now, it could be that you are wasting time with that exercise in that I could still encounter difficulties in terms of the designated award, so I need to put you on notice as to the risk associated with that.

PN96

MR CINI: Sure.

PN97

THE SENIOR DEPUTY PRESIDENT: But what I can also say to you is that without that document, I would have to say the agreement will not be certified because it continues to fall foul of the difficulty which I identified in my decision of 2 August 2002. So the options appear to me to be one of, first of all, proceeding down the path of getting this document signed by all parties to the agreement, and running the gauntlet of my consideration of the designated award. Or, alternatively, to go back once again and repeat the process. Now, it is your call as to which of those two options you propose to follow in this respect.

PN98

MR CINI: Well, sir, I guess before I respond to that, if I may, clause 2.5, if I might just draw your attention to it, was a clause that was revamped from the previous application and has been varied. I must say, I'm a little surprised that the consultation had not gone as I indicated to you, but that variation in clause 2.5, I thought was reflective of the negotiations that had taken place to limit the number of hours per week.

PN99

THE SENIOR DEPUTY PRESIDENT: This is why I'm looking for a document signed by all parties to the agreement.

PN100

MR CINI: Sure, yes.

PN101

THE SENIOR DEPUTY PRESIDENT: So as to confirm very clearly and without any shadow of doubt the situation that applies.

PN102

MR CINI: Yes. Sir, then, does it follow that if we are able to do that with the parties, are we also to do that with the term of the agreement?

PN103

THE SENIOR DEPUTY PRESIDENT: No, it does not in my view.

PN104

MR CINI: Okay, sure, okay.

PN105

THE SENIOR DEPUTY PRESIDENT: The reason for that, quite simply, is that I do not believe I've got a capacity to certify an agreement for a period longer than that which is set out in the actual agreement.

PN106

MR CINI: Given that there has been, on our part, some to-ing and fro-ing, is it prudent to wait until you determine which you consider is the appropriate aware before we proceed further, because if we have provided an agreement here that refers to the Pastoral Industry Award, I suspect we are going to be required to come up with a new document, should it be a different award.

PN107

THE SENIOR DEPUTY PRESIDENT: Well, that is an option. I'm conscious that you have waited for some substantial period of time and there have been various delays to date.

PN108

MR CINI: Yes.

PN109

THE SENIOR DEPUTY PRESIDENT: That is a question for you to determine, not me, Mr Cini.

PN110

MR CINI: Sure.

PN111

THE SENIOR DEPUTY PRESIDENT: I would have thought there was some advantage associated with giving me everything that you could possibly give me at this stage.

PN112

MR CINI: Sure.

PN113

THE SENIOR DEPUTY PRESIDENT: To expedite the certification of the agreement.

PN114

MR CINI: Okay. Well, in that case, I will go down that path, sir.

PN115

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN116

MR CINI: That is no problem.

PN117

THE SENIOR DEPUTY PRESIDENT: Now, Mr Cini, there is one other issue that I do need to raise with you and that is a technical one. I'm not certain that the agreement was lodged within the requisite 21-day period for lodging an application consequent upon a vote.

PN118

MR CINI: Sir, that was an issue that we gave some thought to. Reading the documentation I think it may have fallen within the 21 days, in that it was signed on 2 September and we forwarded to you on - if you will bear with - I think it was 19 September.

PN119

THE SENIOR DEPUTY PRESIDENT: I think you will find it was lodged on 25 September.

PN120

MR CINI: Our letter is dated 19 September.

PN121

THE SENIOR DEPUTY PRESIDENT: Well, it may be dated, or whatever, but is it date stamped from the Commission on the 19th?

PN122

MR CINI: Sir, I haven't received any certified copy from the Commission - any certification that the letter had been received. There is certainly no public holiday, sir, and I am confident it left on the 19th. That I cannot - if - - -

PN123

THE SENIOR DEPUTY PRESIDENT: For the purposes of the debate, the Commission records the agreement as being received, or the document as being received on 25 September, which makes it a couple of days outside of that time limit. Given the situation, I would propose to use the discretion provided for in section 111(1)(r) of the Act and I will extend that time frame.

PN124

MR CINI: Thank you, sir. I can assure the Commission that it is the same employees and there has been no change in the workplace.

PN125

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you. Now, Mr Gill, do you understand, first of all, the two options that I have presented to Mr Cini and, secondly, the requirements associated with the first of those options in terms of all employees signing a letter that confirms the intention relative to clause 9A(1)?

PN126

MR GILL: Yes, I do.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there any other issue you wish to raise with me, Mr Gill?

PN128

MR GILL: No, thank you.

PN129

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Cini, is there any other matter?

PN130

MR CINI: No, thank you, sir.

PN131

THE SENIOR DEPUTY PRESIDENT: Very well, look, I will indicate to you that if I receive your correspondence prior to my determination of the designated award for the purposes of a certified agreement, then I shall incorporate that consideration with the determination of the designated award.

PN132

MR CINI: Thank you, sir.

PN133

THE SENIOR DEPUTY PRESIDENT: Thank you. I adjourn the matter on that basis.

ADJOURNED INDEFINITELY [10.05am]