AG2002/6469, Transcript of Proceedings [2003] AIRCTrans 145 (14 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

AG2002/6469

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by Chubb Security Australia Proprietary Limited
trading as Chubb Protective Services Australia
re Chubb Protective Services Voluntary Additional
Hours Sydney International Shooting Centre Enterprise
Agreement 2002 with employees (Division 2)

SYDNEY

11.07 AM, FRIDAY, 20 DECEMBER 2002

PN1

THE COMMISSIONER: May I have the appearances please?

PN2

MR P. RYAN: If the Commission pleases, I appear on behalf of the company, Chubb Protective Services Australia. With me I have MR J. LEON, Chubb Business Manager and with me I have employee representative from the site in question, the Sydney International Shooting Centre, MR N. MAMOZAI and the spelling of his surname is M-A-M-O-Z-A-I, if the Commission pleases.

PN3

THE COMMISSIONER: Thank you very much, good. Yes, Mr Ryan?

PN4

MR RYAN: Yes, thank you Commissioner. Commissioner, before addressing the agreement, I would just like to place on record that I have had a number of discussions with your associate in relation to clarifying a number of details associated with the agreement. I have sent through to your associate correspondence via email electronically which attends to or clarifies some of the clauses which were brought to question.

PN5

The first being clause 4 I believe which is the relationship to the award, that clause has been amended to make it perfectly clear that the agreement will only pertain to overtime which is of a voluntary nature in accordance with the terms of the agreement and that any over time which is initiated by the company, which is involuntary overtime, will be paid in accordance with the award and attract the normal award penalties. The other clause which required amending is the clause 8.3 which refers to the dispute resolution procedure.

PN6

I have merely added there that the Commission has been changed to refer to the Australian Industrial Relations Commission and in addition the words "conciliation" and if necessary "arbitration of the matter" have been inserted to give effect to the powers of the Commission.

PN7

THE COMMISSIONER: All right, the employees understand those changes?

PN8

MR RYAN: Yes, if it is of assistance to the Commission, I have prepared a statutory declaration from Mr Leon which explains the changes and explains the process which has been entered into to explain those changes to the employees.

PN9

THE COMMISSIONER: Thank you.

PN10

MR RYAN: Thank you, Commissioner.

PN11

THE COMMISSIONER: How many employees are on site?

PN12

MR RYAN: There is only three.

PN13

THE COMMISSIONER: Three is there, okay.

PN14

MR RYAN: Three employees, yes, Commissioner.

PN15

THE COMMISSIONER: All right.

PN16

MR RYAN: Yes.

PN17

THE COMMISSIONER: Have you got anything further today?

PN18

MR RYAN: I do, I would just like to address the agreement itself, Commissioner.

PN19

THE COMMISSIONER: Yes, okay, yes.

PN20

MR RYAN: The agreement is an application under division 2 of Part VI(b) of the Workplace Relations Act and is pursuant to section 170LK. The proposed agreement is titled the Chubb Protective Services Voluntary Additional Hours Sydney International Shooting Centre Enterprise Agreement 2002. Commissioner, my submissions rely on the statutory declarations made by Mr Leon which is filed in the Commission earlier this month. Commissioner, the underpinning award is the Security Industry of New South Wales Award of 1999.

PN21

The site in question is a distinct geographical part of a single business and a valid majority of employees have signed and approved the agreement. Commissioner, I have emailed to your associate the notice of intention which was sent to each of the employees to negotiate the agreement. It is my understanding that that notice of intention was sent in November, on 11 November, in fact. What then occurred, Commissioner, was that well, firstly, the letter advised that if any employees were a member of a relevant organisation of employees, they could request that organisation to meet and confer with the employer prior to the agreement being made.

PN22

And any time subsequent to that agreement being made there was no such request received by the company from the union. Commissioner, an information session was held with employees during which times Mr Leon explained the substantive terms and conditions of the agreement. A secret ballot was subsequently held and during that secret ballot a unanimous decision was made with the three votes being received in the affirmative to vote the agreement up. The agreement has a nominal period of operation of 3 years from the date of certification and contains the necessary dispute resolution procedure.

PN23

Commissioner, the substantive terms of the agreement are very similar to agreements that have been put through the Commission in the past and in fact have been put before your very self. There were two agreements of a very similar nature which contained in Canberra last year, 3 December, which contained the concept of voluntary additional hours. What that concept refers to, Commissioner, is employees being offered additional hours and in receipt of working those additional hours, being paid a 15 per cent penalty based upon the unloaded ordinary rate of pay.

PN24

So what that means, Commissioner, is that if an employee were to work a day shift, they receive their normal day shift plus 15 per cent. If they were to work a shift outside ordinary hours, such as a night shift, they would receive the base rate of a grade 1, because that is the applicable grade at that site. They would receive the applicable shift penalty which may be 21.7 per cent for a rotating night shift and in addition 15 per cent of that base rate so that that is how the calculation works in relation or in respect to the agreement.

PN25

Commissioner, do you require me to address the Commission with regards to the no disadvantage test and the case for that has decided that this type of agreement passes the no disadvantage test on the assumption?

PN26

THE COMMISSIONER: Yes, please, yes, I do require it.

PN27

MR RYAN: You do require?

PN28

THE COMMISSIONER: Yes.

PN29

MR RYAN: Yes, Commissioner. With respect, Commissioner, the Act requires the Commission to certify agreements if despite the agreement not passing the no disadvantage test, the Commission is satisfied that certifying the agreement is not contrary to the public interest, that is at clause 170LT. Commissioner, I now turn to authorities which support the company's contention that the proposed agreement satisfy the requirements of the Act. Commissioner, Chubb Security Australia trading as Chubb Protective Services has around 30 agreements of a very similar nature across all states in Australia which contain some form of voluntary additional hours, or voluntary overtime.

PN30

Of these agreements a number of decisions of the Commission relatively address the application of section 170LT in respect of the no disadvantage test and are not contrary to the public interest test. The first decision I would like to take the Commission to is a decision of Senior Deputy President Harrison of 16 July 1998. The relevant print number in relation to that case is: Print Q3596. This was a decision of Senior Deputy President Harrison in relation to the job security, Darling Harbour Ranges Enterprise Agreement of 1998. Just as a brief summary of that decision, Commissioner, at page 2 of that judgment, Senior Deputy President Harrison detailed the voluntary overtime component of the agreement by stating:

PN31

The third area of agreement was described at the hearing as voluntary overtime.

PN32

It is this particular part of the agreement that was subject of most attention in submissions and evidence. The agreement allows an employee to enter into an arrangement in writing with Chubb to work hours over and above his or her rostered hours, payment for which will be made at the relevant ordinary rate of pay applicable to these hours plus 15 per cent. The agreement referred to these hours as being: those in excess of 38 hours ordinary hours per week and/or in excess of 8 hours in any day. It is submitted by the company, Commissioner, that the summation by her Honour in that case, regarding the operation of the voluntary overtime clause, is similar, although not identical, it is similar to the present agreement before the Commission.

PN33

Commissioner, after ruling that: the agreement did not pass the no-disadvantage test her Honour turned her attention to section 170LT(3) of the Act, starting at page 6 of the decision. I note that the relevant test for the Commission is to consider whether certifying the agreement is not contrary to the public interest as opposed to a consideration as to whether the agreement is in the public interest. I'm inclined to the view that it is possible that certification of an agreement may not, because of its content being the public interest, but nonetheless certification may not be contrary to the public interest. This agreement provides such an example.

PN34

Commissioner, with respect, it is the company's position and submission that the wording of section 170LT(3) of the Act directs the Commission to certify agreements, having passed the no-disadvantage test, if the Commission is satisfied that the agreement is not contrary to the public interest. The decision of her Honour in that case was appealed by the ALHMWU, the Full Bench quoted extensively from that part of her Honour's decision dealing with the tests associated to meet section 170LT(3) of the Act and concluded as follows:

PN35

The jurisdiction in the present case was one to consider whether, notwithstanding that the agreement failed the no-disadvantage test, it would not be contrary to the public interest to certify the agreement.

PN36

This is precisely what the Senior Deputy President did. If it pleases the Commission I would also like to refer to a number of other agreements which have been certified by your learned colleagues with terms very very similar to the present agreement before you today? The first is: print 907825, the next is: 911974, 911822, 911824. Those most recent two cases there, Commissioner, are decisions that you handed down, with respect, in December 2001. Print 912987 and print 912985. Commissioner, it is the submission of the company that, based upon the long-line of authorities which support the company's contention, the agreement should be certified. If the Commission is of a view that the agreements do not pass the no-disadvantage test we would submit that the agreement should still be certified on the basis that: certification would not be contrary to the public interest. If the Commission pleases?

PN37

THE COMMISSIONER: Thank you. Does anybody else at the bar table wish to make a submission? No, and you see nothing wrong with the agreement from a working status? Okay, right. Having heard your submission, Mr Ryan, ..... certified the agreement, it will be known as: The Chubb Protective Services Voluntary Additional Hours Sydney International Shooting Centre Enterprise Agreement 2002. It will be in force from today's date, 20 December 2002, running in force up until 19 December 2005. We will certify that and copies will be provided to you in due course.

PN38

MR RYAN: Thank you, Commissioner.

PN39

THE COMMISSIONER: The Commission to be adjourned.

ADJOURNED INDEFINITELY [11.21am]