AG2002/5444, Transcript of Proceedings [2002] AIRCTrans 5169 (20 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

AG2002/5444

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Mealstone Pty Ltd for certification of
the South Stradbroke Island Resort Certified
Agreement

SOUTH STRADBROKE ISLAND

11.55 AM, MONDAY, 9 DECEMBER 2002

PN1

THE COMMISSIONER: Could I have appearances, please?

PN2

MR M.G. LOANE: If the Commission pleases Loane, M.G. I appear with MR GARRY KLEIN, owner of the Stradbroke Island Resort and we appear for that company.

PN3

THE COMMISSIONER: Yes, thank you. And Mr Paul Antonuccio, you're appearing - representing the employees.

PN4

MR P. ANTONUCCIO: I'm representing the employees, sir.

PN5

THE COMMISSIONER: Yes, thank you. Yes, thank you, Mr Loane.

PN6

MR LOANE: Commissioner, firstly since the filing of this application there has been correspondence between the Commission and the applicant. I specifically refer to a letter from the Commission dated 29 October 2002 and a response by the company to that correspondence dated 18 November 2002. Do you have those at hand?

PN7

THE COMMISSIONER: Yes, I do.

PN8

MR LOANE: Could I ask you to include those documents of correspondence in the record.

PN9

THE COMMISSIONER: Yes, they will form part of the Bench file, Mr Loane.

PN10

MR LOANE: Thank you very much. In the advice issued by the Commission on 29 October 2002 amongst other matters the Commission brought to the attention of the applicant typing deficiencies in the documents before the Commission. One occurs on page 3 of the document in clause 8(2) in the first line. It reads:

PN11

Pursuant to the Superannuation Guarantee Act an employee shall not be entitled to have -

PN12

Etcetera. The Commission rightly pointed out to the applicant that the word "not" should not be appearing and I formally seek to have that word struck out and I have an amending page for that.

PN13

THE COMMISSIONER: Yes, I'll accept the amended page, thank you, Mr Loane.

PN14

MR LOANE: Thank you.

PN15

THE COMMISSIONER: That's a typographical error which is capable of being corrected.

PN16

MR LOANE: Thank you very kindly. On page 6 of the proposed document in paragraph (e) therefore the Commission rightly advised the parties that we omitted to properly describe the Industrial Commission as the Australian Industrial Relations Commission. I seek leave to amend that portion of the application. I have a page prepared to amend that document if you approve.

PN17

THE COMMISSIONER: Yes, I'll accept the amended page. It simply adds a word. It doesn't change the intention of the parties in that regard.

PN18

MR LOANE: Thank you. Amongst other matters before the Commission when the documents were filed there was an affidavit filed by Mr Gary Klein, who is in the body of the Court today, which pursuant to the provisions of the Act declares that all the requirements that the Act insists upon taking place has occurred in the construction of this document. By his instructions to myself, Commissioner, a document was drawn up for the consideration of all the employees who ultimately may be bound by the document before you.

PN19

That was given to the employees. I personally conducted interviews with all the employees who were on site during a period of three days and explained to the employees the contents of the document, what their rights were both in terms of any changes they might wish to make to the document, in terms of getting advice from either industrial inspectors, trade unions, industrial advocates or solicitors and indeed even accessing the Industrial Commission itself. At the expiration of 14 days a ballot was conducted by individuals where they were asked to either approve or disapprove of the agreement as it stood, with the one singular matter being a request by staff to remove any rights the employer may have to charge for board and accommodation.

PN20

The document was changed to reflect that request of the employees and indeed whilst the award, the Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award 1998, allows for the deduction of $118 per week per employee for board and accommodation that provision was removed and indeed employees now receive board and accommodation free of charge. And that was as a direct result of a request from employees. All employees who were present voted for - in favour of the document and it then went forward to the Commission.

PN21

One of the problems that the applicants have experienced in the preparation of these documents, Commissioner, has been the floating population or the floating pool of employees in the locality which we are situated, being in South-East Queensland on the - effectively the Gold Coast where to actually have an employee stay long-term is almost a rarity. Indeed it is true to say that from the commencement of the process to create this particular document until today my friend on my right who represents the employees is the only surviving person from those early days.

PN22

The change of labour here on this particular resort is significant. Indeed it's true to say that this morning the Commission conducted an in-depth inspection of the operations of the enterprise and had the opportunity to speak directly with Mr Klein who, in addition to the affidavit that he has supplied for the Court record, explained to the Commission - I think the expression he used, Commissioner, was what he would like to have is to be teaching new things to old employees rather than old things to new employees all the time. And one of the frustrations that he was experiencing as an employer was the inability of the enterprise to hold labour.

PN23

And he explained to the Commission that the cause of it, in his view, is that there is an attitude in the Gold Coast area of only employing employees for 18 or 20 hours per week and this being an island that can't work. That what he would rather, I think he said to the Commission during the inspections - he would rather have one employee working 60 hours per week than three employees working 20 hours per week; that the benefits for the employee and the employer even thought it might be more expensive for the employer work to the benefit of both parties.

PN24

And they are the matters that not only he expresses in his affidavit but they are matters that he expressed to the Commission personally and directly this morning during the inspections.

PN25

THE COMMISSIONER: Yes, I confirm that's an accurate description of the inspections and the information that was provided by Mr Klein to the Commission, Mr Loane.

PN26

MR LOANE: Thank you. In Mr Klein's instructions to myself in arriving at a fair and equitable rate of pay in the agreement I explained to Mr Klein that there were requirements not only of the current award but of the Act itself. The award particularly - and if I can hand you a document. It's a document that has been taken down from wage line. It's an award summary sheet of the parent award to this document. I hand that to you.

PN27

THE COMMISSIONER: Thank you. I will mark that as exhibit 1.

EXHIBIT #1 AWARD SUMMARY SHEET OF PARENT AWARD TO DOCUMENT

PN28

MR LOANE: Thank you. I explained to Mr Klein that in that particular document in the award that there were rates of pay struck for weekends, Saturdays, Sundays, Monday through to Friday and a whole varying range of matters. In an earlier document I had sent to the Commission which I had headed Comparison Table/Explanations - I don't know whether the Commission still has that document.

PN29

THE COMMISSIONER: What does that look like, Mr Loane?

PN30

MR LOANE: It's a two page document like - but I don't know whether I've got it. If you could give me an adjournment for two seconds I'll get a copy of this for you.

PN31

THE COMMISSIONER: I'll just have a look at the file.

PN32

MR LOANE: You could have that document.

PN33

THE COMMISSIONER: Do you have a copy of that?

PN34

MR LOANE: Yes, sir.

PN35

THE COMMISSIONER: Okay, all right. I will mark the comparative table as exhibit 2.

EXHIBIT #2 DOCUMENT HEADED COMPARISON TABLE/EXPLANATIONS

PN36

MR LOANE: Thank you very much. I ask the Commission to specifically refer to page 2 of exhibit 2.

PN37

THE COMMISSIONER: Yes.

PN38

MR LOANE: And that sets out what effectively is the formula, Commissioner, for the creation of the rates of pay as they appear in clause 8(1) of the document. Briefly going through it it shows that what we have taken is the weekday casual rate, the Saturday and Sunday casual rates and combined them. Then divided that figure of $53.08 - divided that by three to get a mean average. On instructions Mr Klein instructs me that the average hours worked by employees on the island is 29 over a 12 month period.

PN39

I took the average. I multiplied the average hourly rate, so I'd multiply the $17.70 by 29 and came to a total of $513.30. In point 4 I say the product of step 3, the 513, is divided by the minimum number of hours in the award, namely the 38. So I divided 513 by 38 which results in a figure of $13.50. In effect, Commissioner, what we are creating there with your experience is almost a paid rates concept where regardless of the days and the times that the employees are working they are continually getting a compounding rate that is made up of a rate out of the casuals, the Saturdays, Sundays and week and it happens 24 hours a day, seven days a week.

PN40

The reason for that is, Commissioner, two-fold. Again during the inspections this morning Mr Klein advised you that the award at the present time in effect doesn't properly cater for an enterprise operation such as exists here at South Stradbroke Island Resort; that he may well have an employee who one moment is driving a tractor, the next moment is changing sheets in the bedroom and the next moment is raking the lawn, the next moment is working in a bar picking up glasses, serving tables, etcetera. Indeed the term was used, I believe, a jack of all trades, master of none.

PN41

The second reason for it is, again, in order to have a rate of pay that will attract employees to stay, the rate of $13.50, if you take that against the rates of pay in the proposed document, they're, really, Commissioner, increments, as you can see, levels 1, 2, 3 and 4, because in the definitions to the agreement, in clause 7, you will see that the - a probationary period of - exists for four months, then level 2 kicks in of $14.50 per hour and then, after another period of time, the $15.50 kicks in and then the $16.50 kicks in. Indeed, in the case of my friend at the bar table this afternoon, Mr Antonuccio, he receives the $16.50 and more (a) because of - at the risk of embarrassing the gentlemen - his capabilities; and (b) the necessity - in order to retain his quite talented services.

PN42

So they have - the document seeks to have an in-built escalator. So you can have an employee, Commissioner, who is, with the greatest of respect, a labourer who, under the award, could expect to earn no more than $14.74 an hour working for this enterprise receiving $15.50 or $16.50 as the case may be. In terms of the no-disadvantage test, I believe that the matters before you today, both by way of inspections and what has already been put to you, demonstrates that the employees can't be, in any way, shape or form, adversely affected, particularly when you take into account that the bulk of the employees reside on site and the impact of that free board and accommodation at $118.50 per week ensures, beyond any doubt at all, that the employees can't be disadvantaged.

PN43

It's also true to say that the guarantee that is required by the Commission that no employee be reduced in rates of pay by the coming into operation of this agreement appears in the concluding paragraph to clause 8(1), "Notwithstanding any decision of the Australian Industrial Relations Commission," - sorry, no it's not. Sorry, it's in clause 22, subclause 5, paragraph G, where it says:

PN44

No employee in the employ of the employer prior to the coming into operation of this agreement shall have the terms and conditions of employment reduced by the coming into operation of this agreement.

PN45

Now, admittedly, of course, Commissioner, given that I've already said to you that there is a floating population and there is a significant changeover staff that really isn't impacting on too many people at all but it certainly impacts upon Mr Antonuccio here in Court today. So, both by the awards, the proposed document and the Act and the Commission's policy, people like Mr Antonuccio are protected. I think he will say to you, in due course, that his rates of pay and terms and conditions haven't been reduced and neither has any other employee at the point of negotiations and settlement.

PN46

I don't believe I can assist you much further, Commissioner, other than to say to you that one of the queries that was raised in the correspondence to the Commission dated 29 October was a concern by the Commission in respect of the probationary period being four months when it's been held by the Australian Commission and other judicial bodies that three months is more than sufficient. Again, in order for the employer to properly assess, given the hours that he currently is allowed to work his employees, the employee, if it was possible, we'd have 12 months but obviously we are prepared to reduce that back to three months if that's a requirement of the Commission but, as a total package, I suggest the employees aren't being, in any way, shape or form, disadvantaged and I ask the Commission to favourably consider that part of our claim.

PN47

THE COMMISSIONER: The only point there, Mr Loane - and I should raise this with you - is that casuals aren't bound by any probationary requirement because you're not beholden to them for any longer than the minimum engagement and so the requirement to have a probationary period apply and there is no - under the Act, probationary period only applies to permanent employees; it doesn't apply to casuals.

PN48

MR LOANE: You're right, of course, Commissioner. The only concern that we have is, given the peculiar way the agreement has been structured in terms of having escalators built in to the wages clause from level 1 to level 2; and the only way we could come around that- is it, like, with a - there's no disputing what you're saying is legally and properly correct. We're saying that any employee in their first four months will receive that - the $13.

PN49

THE COMMISSIONER: But, in any event, that's not dependent upon probation; that's dependent upon their performance and whether or not they stay so they'd automatically, in effect, qualify after that first period, anyway.

PN50

MR DUNWOODY: You are totally correct, yes, sir.

PN51

THE COMMISSIONER: Now, insofar as the disputes avoidance procedure: how do the parties intend to have the matters resolved if conciliation by the Commission didn't resolve it? Were you intending to empower the Commission under section 111AA of the Act to deal with the matter - - -

PN52

MR LOANE: Yes.

PN53

THE COMMISSIONER: - - - by way of consent recommendation if - that's in the event that there was a failure, by way of conciliation, to resolve the issue because, as you know, at some stage, some people like their day in Court, whether we like it or not, so it's a question of empowering somebody to resolve the dispute.

PN54

MR LOANE: And that's - the parties do seek that, Commissioner, that the Commission be - have the power to resolve any dispute that ultimately would come before it.

PN55

THE COMMISSIONER: By way of section 111AA of the Act?

PN56

MR LOANE: Yes, please, Commissioner.

PN57

THE COMMISSIONER: Well, that's simply on the record. You can't change the agreement so - so that's fine. So the issue about probation is not really an issue. That's clarified that. The other corrections have been made which the Commission drew to your attention and I've heard your submissions in relation to the no-disadvantage test and the difficulties of that, in terms of the nature of the business. Now, Mr Antonuccio, you're one of the employees who are affected by this agreement and you were able to sit down with Mr Loane and have him explain to you the intent of the make-up of the agreement and the way it was to operate - - -

PN58

MR ANTONUCCIO: Yes.

PN59

THE COMMISSIONER: - - - and you were satisfied with the information that he provided?

PN60

MR ANTONUCCIO: Yes.

PN61

THE COMMISSIONER: I mean, it's no good me asking you about the other employees because they're long gone at this stage so there's no point in that. All right. So there's nothing you wanted to say about the agreement other than the fact that you supported the certification of it?

PN62

MR ANTONUCCIO: Yes. I support the agreement and, like you said before, even the employees before me, when it came to the meeting and that, they all agreed to it and, as time went on, they're just - you see some left, some haven't - - -

PN63

THE COMMISSIONER: You're the last of the Mohicans?

PN64

MR ANTONUCCIO: Yes, I'm the last of the Mohicans, so I'm still here.

PN65

THE COMMISSIONER: All right. Thank you very much. Having heard the parties and having read the documentation and heard the explanation provided by Mr Loane, the Commission is satisfied that the applicant has met the statutory obligations imposed upon it by way of the Workplace Relations Act and in accordance with section 170LT of the Workplace Relations Act, the Commission hereby certifies the written agreement between the parties. This agreement shall come into force from 9 December 2002 and shall remain in force until 8 December 2005. I shall now adjourn these proceedings.

PN66

MR LOANE: Thank you very much, Commissioner.

ADJOURNED INDEFINITELY [12.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AWARD SUMMARY SHEET OF PARENT AWARD TO DOCUMENT PN28
EXHIBIT #2 DOCUMENT HEADED COMPARISON TABLE/EXPLANATIONS PN36