AG2003/1778, Transcript of Proceedings [2003] AIRCTrans 1177 (2 April 2003)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

AG2003/1778

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Roofing Plus Pty Ltd for certification
of the Roofing Plus Pty Ltd Enterprise
Agreement 2003

CANBERRA

9.57 AM, TUESDAY, 18 MARCH 2003

PN1

MR A. SPOTTISWOOD: I appear for Roofing Plus Pty Ltd, with MR J. de JONG, the proprietor and with MR D. PERRIN, as the employee representative.

PN2

THE COMMISSIONER: Thank you, Mr Spottiswood, go ahead please.

PN3

MR SPOTTISWOOD: Thank you, Commissioner. Certification of the Roofing Plus Certified Agreement 2003 is sought under section 170LK of Division 2 of the Workplace Relations Act and does not replace a previous agreement. The agreement which certification is sought contains clauses that address the relevant allowable award matters listed in section 89A(2) of the Act. The agreement contains clauses that provide the consultation of employees in the event of major workplace changes and for dispute resolution purposes.

PN4

Employment matters covering the agreement include an anti-discrimination clause to give effect to the objectives of paragraph 3(j) of the Act. The agreement was made on 17 February 2003 when seven employees voted to accept the agreement with two employees voting against its acceptance. Having regard to the no-disadvantage test provided for in the Act, I advise that the lower end of each of the salary ranges shown in the agreement reflect the current minimum wage rates in the nominated awards and the upper end of the salary range allows for employees to be rewarded for improved performance with all of the current employees currently being paid in excess of the minimum shown and towards the higher end of the salary ranges for each of the classifications.

PN5

The agreement has not introduced any new conditions of employment that may have had an effect on compliance with the no-disadvantage test as provided for in section 170XA of the Act. In addition to the wage rates provided for and when certified, the agreement provides for automatic annual wage increases through the application of the Consumer Price Index as they fall due. That is all I have, Commissioner.

PN6

THE COMMISSIONER: Thank you, Mr Spottiswood. Mr Spottiswood, I have got a few concerns about this agreement. Can you explain to me what this organisation is made up of. You say three awards apply.

PN7

MR SPOTTISWOOD: Yes.

PN8

THE COMMISSIONER: So I gather the staff are working in those different award classifications currently?

PN9

MR SPOTTISWOOD: Correct.

PN10

THE COMMISSIONER: So, what have you got?

PN11

MR SPOTTISWOOD: We have got sheet metal workers.

PN12

THE COMMISSIONER: Covered by the Metals Award.

PN13

MR SPOTTISWOOD: Covered by the Metals Award.

PN14

THE COMMISSIONER: Yes.

PN15

MR SPOTTISWOOD: Clerical workers.

PN16

THE COMMISSIONER: How many?

PN17

MR SPOTTISWOOD: Two.

PN18

THE COMMISSIONER: Right. And?

PN19

MR SPOTTISWOOD: And one salesperson.

PN20

THE COMMISSIONER: One salesperson?

PN21

MR SPOTTISWOOD: Yes.

PN22

THE COMMISSIONER: Why is there a classification of driver?

PN23

MR SPOTTISWOOD: Sorry, and a driver - sorry, Commissioner.

PN24

THE COMMISSIONER: Well, given that there are four different awards applying, it is very difficult when you are going to one st of conditions to try and work out whether the agreement passes the no-disadvantage test or not, particularly when all the information given in the statutory declaration is that clause 22 is the only reduction and the wage rates are the increase. Well, there are no increases in the wage rates, as you have already said. I cannot - where you have got a range of rates then I can't look at anything except the minimum because that is what you can pay.

PN25

You can pay the minimum at that rate which means that is exactly the award rate. You wouldn't get anything under a CPI increase and by that stage there will probably be another safety net increase which will take it well over a CPI increase for a quarter, so it will be behind the award rates before it even starts, or very soon after it starts. The - clause 7 of the agreement talks of coverage and says, "The employer employee parties to the agreement are listed at schedule 3", well, schedule 3 sets out the classification.

PN26

It doesn't set out the employer employee parties at all. The agreement purports to cover management employees, or management, in any case. I know either they are covered by award rates or they are not currently?

PN27

MR SPOTTISWOOD: No, they are not currently covered by award rates.

PN28

THE COMMISSIONER: In which case there ought to be an application for a designated award in respect of the management people, if you want management covered. The personal leave is different in all four awards and it complies with none of them. I am not even sure it makes any sense, the personal leave clause in the agreement - in fact, if you read it as it is written it would look like they get double the award rate of personal leave and sick leave. I doubt that that is what the employer intends because the personal leave - sick leave is supposed to be a component - - -

PN29

MR SPOTTISWOOD: It is a component, yes.

PN30

THE COMMISSIONER: - - - of personal leave. Well, it doesn't look like it Mr - if you read this agreement that is not the way it reads. It is probably - that what I thought it meant to do because I couldn't imagine an employer being quite that generous - - -

PN31

MR SPOTTISWOOD: No, it is - - -

PN32

THE COMMISSIONER: - - - particularly when the wage rates are dead-on award rates. So that doesn't work, and clause 28.3.2 or 28.3.1 is meaningless, so the personal leave clause doesn't work on its own in any case. Most of these awards give the union picnic days an additional public holiday in the ACT, this agreement does not. It doesn't pass the no-disadvantage test, Mr Spottiswood, so I suggest you take it away. If you want to cover management, you ask for an award to be designated for management.

PN33

If management are in the Metals Award then the Metals Award or - is okay or the Retail Award or the Clerical Award, I don't mind, whichever one is the most suitable, but if the agreement is supposed to cover management - management is not generally covered by any of those four awards then you must ask for one to be designated for the purpose. As I said, the personal leave and the sick leave clause need very, very close scrutiny. You had better have a good look at them. I am not sure the hours work because you have a definition of ordinary hours in the definitions which does not equate to the clause which relates to hours. I refuse to certify the agreement. It doesn't pass the no-disadvantage test and it has got so many ambiguities and mistakes in it that it doesn't make sense. I will adjourn. Thank you.

ADJOURNED INDEFINITELY [10.04am]