AG2003/597, Transcript of Proceedings [2003] AIRCTrans 1279 (8 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

AG2003/597

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by Casino Hide Traders Proprietary Limited
and Another for certification of the Casino Hide Traders
Enterprise Agreement V

SYDNEY

9.3 AM, MONDAY, 24 MARCH 2003

PN1

HIS HONOUR: This is matter AG597 of 2003. It is an application lodged on 7 March this year under section 170LJ of the Act seeking the certification of an agreement to be known as the Casino Hide Traders Enterprise Agreement Number V. Could I have appearances, please?

PN2

MR K. McKELL: If the Commission pleases, McKell, initial K., for the National Meat Association of Australia, New South Wales Division, appearing for Casino Hide Traders.

PN3

MS S. BENNETT: If the Commission pleases, my name is Bennett, initial S. I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN4

HIS HONOUR: Yes, thank you. The parties to the agreement are Casino Hide Traders and the ALHMWU. Casino Hide Traders appears to be a statutory corporation, although the ACN number provided seems to be different from - the statutory declaration, at least, from the ACN number that is shown on a search of ASIC. There are no companies with the number that is shown on the statutory declaration, so for general purposes perhaps the use of the ACN 42 060208366 - it looks more like a different code system - should be set aside. The ACN we can find, or ASIC could find, was one 1442244. But I will take it, if averment is made, that Casino Hide Traders Proprietary Limited is the party and is a constitutional corporation. The agreement is stated in clause 2 to apply to:

PN5

...the employees of Casino Hide Traders, other than management, who are engaged at the company's tannery facility located at Summerland Way, Casino in the State of New South Wales.

PN6

The purpose of that application clause is, I would accept, to apply the agreement to the single business of Casino Hide Traders, being the tannery facility located at Summerland Way, Casino in New South Wales. I note that - and I find to that effect, that that is the single business to which the agreement applies. The agreement was lodged out of time. It was made, it would appear, on 29 January and not lodged until 7 March. It will be necessary for an extension of time to be made. There are some 35 employees to be covered by the agreement.

PN7

There is a provision in clause 11 for wage increases. However, on examination of the agreement, the rates to which those percentage increases are to apply and the classification structure is not disclosed on the face of the agreement or readily ascertainable unless there is something that I have missed. In the circumstances, I require that there be a section 170LV undertaking specifying what are the wage rates and the classification structure to which the increases that are set out in clause 11 are to apply. Now, that can be dealt with - - -

PN8

MR McKELL: Excuse me, your Honour.

PN9

HIS HONOUR: Yes.

PN10

MR McKELL: There was an appendix that contained the actual wage increases and the operative dates. I do have a copy here that I could submit.

PN11

HIS HONOUR: Is there? I see. Yes.

PN12

MR McKELL: That should have been submitted on the day of registration.

PN13

HIS HONOUR: Yes. Tacked on - well, that will suffice for those purposes. I'm afraid I didn't notice that. I think, in the circumstances, Mr McKell, perhaps it will suffice if you indicate that clause 11 is to operate as though it incorporates, by reference, appendix 1. And that's an implication necessary, anyhow, that is part of the agreement. That covers that point. I think clause 12 provides for a group 5 annualised salary. That does not - perhaps I could have some explanation as to why that doesn't involve a reduction in relation to overtime or shift penalties. The level of the annualised salary of, I think it's 38,000, is it - 38,500 is a straight multiple of the group 5 rate, but it has been cast as an annualised salary, although the no disadvantage test response says there are no problems.

PN14

Now, there is a conflicting date of expiry, I think, also in the agreement. The statutory declaration states that it will remain in force for three years from 10 July 2002, and clause 5 of the agreement states it shall operate from the first full pay period occurring on or after the date of 10 July 2002 and it shall remain in force for three years from the date of certification. So, in one sense, you are looking for a period of more than - if clause 5 be given a literal effect, it has got an extension period of about nine months longer. I think that can be overcome - the way in which I have drafted the certificate by treating it as coming into force from 24 March and remaining in force until 24 March 2006, which is the three year period of operation, but it is certainly inconsistent with the terms that you have agreed, which are beyond the Act, if you are looking for a three year and nine month period of operation.

PN15

Alternatively, and the way in which it is normally dealt with, is you simply treat the pay increases as running from July, the date you gave them and - but the force of the agreement, that obligation to pay from 10 July comes into operation from today, even if you have been observing it. But the agreement, on its face, operates for three years from today.

PN16

MR McKELL: Your Honour, that - and that does appear as a confusion which we would seek to have a correction, as you have acknowledged, that we would be looking at the aspects that, because the previous agreement's expiry date was 10 July, or thereabouts, that there was confusion as far as making it operative from that date. However - and I have just have some brief discussions with my colleague as to the appropriate way to treat it and if, of course, the Commission doesn't have the position to make a decision retrospective, therefore we would be seeking three years from today's date.

PN17

HIS HONOUR: Yes. It has been finagled, I think, or finessed, these problems, Mr McKell, and essentially the way in which it is done is to allow whatever the terms of an agreement are that give the measure of retrospectivity, to go through, subject to the Commission's observation of the Act being more or less a literal one, that the agreement as an instrument comes into force from the date of certification, but it may have within it obligations that oblige an employer to make payments from the date earlier than the date in which it came into force. It is up to the parties to agree. So I think it can be construed that way consistent with the Act if that accords with both parties' views then the agreement shall come into force on 24 March and remain in force until 24 March 2006. Do you have a position on that, Ms Bennett?

PN18

MS BENNETT: Your Honour, that is actually not my understanding of the agreement, and I will need to get instructions about that. It was actually my understanding of the agreement that it apply until 10 July 2005, making its operative term approximately 2_ years that the agreement be three years from 10 July 2002. So I understand the problems with back-dating the agreement, but it would be my submission that the agreement between the union and the company was that it would expire on 10 July 2005.

PN19

HIS HONOUR: Well, you're in a position of some difficulty, I think, then in that case, because you have got a term of the agreement that is - would have to be varied, in which case you would probably have to go through the variation process. Should I stand the matter over then, what is the best way to handle it?

PN20

MR McKELL: Your Honour, I would think that for the benefit of both parties and the Commission, that we could make contact with our respective clients, and then report back to you in a short time as to what their position is regarding the operative date, and the period.

PN21

HIS HONOUR: Yes, when you say a short time, at some later time, not today?

PN22

MR McKELL: Well, it might be solved by a matter of just a phone call, your Honour.

PN23

HIS HONOUR: Yes, very well. Well, I will stand the matter over. You can come back to me either today or at some later point. Will I stand the matter out of the list for the time being?

PN24

MR McKELL: Well, I would think availability of contact with our clients, we could just give a direction back here in about, I suppose, 15 or 20 minutes.

PN25

HIS HONOUR: Very well. The extension of time we might as well cover that. I am prepared to extend time subject to whatever explanation you give. You seem perhaps to be in the problem of difficulty - according to your letter you approved this agreement or had the employers approve it on 29 January.

PN26

MR McKELL: That's correct, your Honour.

PN27

HIS HONOUR: Yes. What is the reason for the delay?

PN28

MR McKELL: Your Honour, it was a - it would seem to be a problem with the signature, or getting the signatures of the representatives of the parties, which, I believe, occurred on 18 February this year, and subsequent to that the actual lodgment was done through, or receiving the original documentation took a little longer until it was actually registered with the Commission.

PN29

HIS HONOUR: Yes, very well. Well, I am prepared to extend time on the basis that there have been some administrative changes. Have there been any alteration to the work-force since the agreement was approved.

PN30

MR McKELL: No, your Honour.

PN31

HIS HONOUR: Yes. And the position as to the annualisation of salary why does that not involve some reduction from overtime and other entitlements, clause 12?

PN32

MR McKELL: The only answer I can give at this time, your Honour, is that the direction that I have been given is that it does not involve in balance a reduction in benefits, but if needs be I can provide further information from instructions from my client.

PN33

HIS HONOUR: Yes. 12(2) says it includes any payment for annual leave loading, overtime penalties, shift allowances and penalties and yet the stat decs simply are there that there's no reduction. Well, if there's no entitlement to shift and overtime penalties for class 5 or group 5 terming staff some explanation needs to be made by whoever is responsible for it. Presumedly, the grade 5 rate from 10 July of 579.39 is sufficiently in advance of award rates, but somebody should apply their mind to it in the same way as they should apply their mind to whether the agreement, without term, in fact reflects whatever it is they have put to employees at the time. I will stand the matter over on the basis that you can come back to me.

SHORT ADJOURNMENT [9.48am]

RESUMED [10.23am]

PN34

HIS HONOUR: Yes, what is the position, Mr McKell?

PN35

MR McKELL: Thank you, your Honour. We've both had discussions with our direct representatives at the plant. And, firstly, to address the issue regarding the operation of the agreement and duration, the understanding that we've both received is that the agreement would be up to the date of 10 July 2005. What we would specify, and I believe my colleague is of the same feeling, as to the best course of action in order to get the agreement approved but whether initially it can be based on assurances from both sides to say that is the intent of the parties. Secondly, the fact that the contents of clause 5 does create - or is an anomaly does create confusion and therefore we had agreed on appropriate wording.

PN36

As to the best course of actions to address this, your Honour, we had discussed the issue of whether a new clause 5 is drawn up and tendered to yourself by fax or by mail. And if I could just specify what the agreed wording between the parties is and I quote:

PN37

This agreement shall commence from the date of certification by the Australian Industrial Relations Commission and shall remain n force until 10 July 2005.

PN38

HIS HONOUR: That will be perfectly satisfactory to me. Could I suggest that you preface it with the words, "The parties have agreed that the agreement shall operate on the basis that clause 5 reads," well, whatever the words are. And you might mention there section 170LV if you would as well. "The parties have agreed pursuant to section 170LV." What I will do is I'll certify that the agreement shall come into force from 24 March 2003 and shall remain in force until 10 July 2005. And that will appear on the face of the certificate so it's simply then inconsistent with internally. I don't think there is any barrier to bringing it back to that operative date or - sorry, to that expiry date - as a matter of the Commission's certification if it's agreed to by the parties and covered by the 170LV undertaking it.

PN39

In fact, gives force to the spirit and intent and I doubt whether it's likely to end up in Court. Anyhow at least what has happened, you're clear as to what you're doing and the Commission's document on its face reflects what you're doing.

PN40

MR McKELL: Yes, your Honour. Just to address one other issue that you've raised regarding clause 12, annualised salary; a discussion I have had with the manager at Casino Hide Traders was on the basis that group 5 tanning staff were previously, and I will state in relation to hours of work, that there was a rotation basis where between day shift they were doing an average of 192 hours per month. The same for afternoon shift and on night shift it was an average of 160 hours per month. And through the negotiations and discussions from the date, as I understand it from July last year, that those persons have been doing an average of 144 hours average per month.

PN41

And as such on the basis of the reduction in hours and the subsequent increases in wage rates as specified in clause 11, would specify that it would satisfy the no disadvantage test on that issue.

PN42

HIS HONOUR: Yes, thank you for that explanation; that covers it, Mr McKell. I'm satisfied I should certify the agreement. The basis of that satisfaction is the scrutiny of the statutory declarations; the outcome of which is recorded in a check list compiled by my associate and completed and signed by me following my perusal of the proposed agreement. The signed copy of the check list will be retained as part of the file and is a component of the decision in this matter. In accordance with section 170LT of the Act, I certify and approve the written agreement as agreement 822408 in Print 928844. It shall come into force from 24 March 2003 and remain in force until 10 July 2005.

PN43

I direct the parties to supply me with an undertaking as to the operation of clause 5, the term of the agreement, to conform with that understanding. I note that clause 21(5) read in context implies a Commission power to arbitrate. In the circumstances, I treat that as a procedure intended to empower the Commission to settle disputes over the application of the agreement; and with clause 21(7) in particular, amounts to an empowerment that the Commission would approve for the circumstances in which it might be - or does approve for the circumstances in which it made be invoked by way of reference of a submitted dispute to the Commission for arbitration should that occasion arise.

PN44

I will sign a fresh certificate with a different date of operation, and perhaps the parties could attend in due course to submitting the undertaking that has been outlined. Thank you. The Commission will adjourn.

ADJOURNED INDEFINITELY [10.30am]