AG2003/143, Transcript of Proceedings [2003] AIRCTrans 1512 (24 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N WT0142

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

AG2003/143

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Western Australian Trotting Association
for certification of the Western Australian
Trotting Association Race Night Staff
Agreement 2003

PERTH

10.36 AM, TUESDAY, 8 APRIL 2003

PN1

MR L. JOYCE: Lyndon Joyce on behalf of the Western Australia Trotting Association, with me is MR F. COLEMAN, who is the State Manager for the Trotting Association. We had intended also, your Honour, to have present Mr George, who is the employee representative, but unfortunately he had to return to New Zealand at short notice for family reasons and so he is not present today.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes. His statutory declaration is on file though?

PN3

MR JOYCE: It is, yes, your Honour.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Well, you proceed, Mr Joyce.

PN5

MR JOYCE: Thanks, your Honour. Your Honour, this is an application for certification of an agreement under section 170LK of the Act. This agreement is the latest in a series of agreements certified by the Commission and in relation to these employees it is the third generation agreement applicable to race night staff.

PN6

The first agreement applying to those employees was certified by the Commission back in 1995 and since that time there has been regular agreements certified. In terms of the process followed, your Honour, this process goes back to October 2002 when the Association called for representatives from the workforce to be involved in the negotiation process.

PN7

There were no volunteers forthcoming at that time, your Honour, and on 23 January 2003 the Trotting Association provided written advice to the relevant employees indicating where it sought to vary the previous terms of the agreement, which was made back in the year 2000. Your Honour, just for your information, I have got a copy of the notice that the Trotting Association provided, it is dated 23 January 2003.

PN8

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Joyce.

PN9

MR JOYCE: Also attached to that, your Honour, is a copy of the notice of intention supplied to the staff which I will address shortly.

PN10

THE SENIOR DEPUTY PRESIDENT: We will mark them as a bundle, exhibit J1.

EXHIBIT #J1 WRITTEN ADVICE PROVIDED BY THE TROTTING ASSOCIATION DATED 23/01/03 AND COPY OF NOTICE OF INTENTION

PN11

MR JOYCE: Your Honour, following the provision of the written advice to employees, a meeting of the employees and the Association took place on 14 February 2003 where the Association's proposed variations to the existing agreement were discussed. Subsequent to that, your Honour, on 20 February, the Association then issued its formal notice of intention and along with that issued the final proposed agreement.

PN12

A ballot of staff subsequently took place on 14 March 2003, 60 ballots were issued, your Honour, 36 were returned, 33 voted in favour of the agreement and three voted against the agreement and the application for certification was lodged in the Commission on 27 March 2003. Largely, your Honour, this agreement is in the same terms as its predecessor. In terms of rates of pay, the agreement provides for a $1.00 per hour increase upon certification and a subsequent 80 cent per hour increase 12 months after the date of certification. But there is two issues, your Honour, that we should bring to your attention, variations from the previous agreement.

PN13

Firstly, that is in relation to the reduction in minimum engagement periods for staff employed after the certification of this agreement and, secondly, the removal of overtime provisions which previously or which are in the current agreement. In relation to both those issues, your Honour, the employer's position is that in fact that will have little or no practical affect on the employee entitlements. In terms of minimum engagements, your Honour, existing staff are guaranteed at least a five hour shift. That - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Is that a provision in the award, Mr Joyce?

PN15

MR JOYCE: There is a provision in the award, your Honour, which provides for a six hour minimum engagement. I do have a copy of the award, your Honour, which I can provide to you as well for the sake of the record.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN17

MR JOYCE: Clause 5.2 of the award, your Honour, deals with the engagement period. The issue of minimum engagements was addressed initially in 1995 in an agreement between the Association and the Media Entertainment and Arts Alliance, where the award six hour minimum was reduced to five and it has been five hours ever since. The proposal in this agreement, your Honour, is that for new employees that guaranteed minimum engagement period under the agreement at least is reduced to four. Practically, however, your Honour, I am instructed that staff will generally work from 5.00 m to at least 10.00 m in any event. So the Association's position is that at least five hours would generally be worked in any event.

PN18

Previously, in June, the winter months, your Honour, some staff, for example, parking attendants, may have worked slightly reduced hours, I am advised from approximately 4.45 pm to approximately 9.30 pm, being a period of 4 hours and 45 minutes. However, from 2 May of this year, your Honour, the number of races held on a Friday night is actually going to increase from 9 to 10 necessitating an earlier start by the staff of approximately half an hour. So the practical affect is that most staff would be guaranteed at least or will be working at least five hours and probably at least five-and-a-half hours.

PN19

In terms of the overtime provisions, your Honour, the Trotting Association doesn't particularly work overtime. The structure of the racing season is that it sets out a planned series of events for the forthcoming year and races simply aren't held outside that planned program. And, as a result of that, the instances of overtime would be rare to say the least. We would note, your Honour, that the award does prescribe overtime provisions but they do operate on a fairly limited basis. With reference to this employer, for example, the overtime provisions would apply to work between midnight and 8.00 am, where generally these staff would be working - would be ceasing work rather at approximately 10.00 pm.

PN20

Also in relation to the award, overtime is applicable where employees work longer than the period that they're actually contracted for. Again, the Association has, I guess, the luxury to some degree of knowing that a race meeting runs for a set period and the incidents of overtime is, I am advised, fairly unusual. On this basis, your Honour, the Association is of the view that the practical affect of the deletion of both those provisions won't impact on the conditions of employment of the employees and also, on that basis, your Honour, we believe that it is open to the Commission to find that the agreement does meet the no disadvantage test. Your Honour, other than those brief submissions, we have nothing further to put unless you have any questions of myself or of Mr Coleman.

PN21

THE SENIOR DEPUTY PRESIDENT: No thank, Mr Joyce, I think you've covered the concern I had adequately. I can proceed to deal with this matter now. This is an application pursuant to section 170LK of the Workplace Relations Act to certify an agreement to be known as the Western Australian Trotting Association Race Night Staff Agreement 2003. Having heard Mr Joyce on behalf of the Western Australian Trotting Association and having read the statutory declarations of Francis William Coleman, filed on behalf of the Western Australian Trotting Association and Barry Richard George, an employee representative, I am satisfied that the agreement relates to a constitutional Corporation, namely the Western Australian Trotting Association incorporated under the Western Australian Trotting Act 1946.

PN22

I am also satisfied as to the following matters. With the assurances given by Mr Joyce that most employees will still work a five hour minimum engagement and that the provision of overtime is almost unheard of, then the agreement passes the no disadvantage test. The agreement was made in accordance with section 170LK of the Act and a valid majority of persons employed at the time whose employment will be subject to the agreement genuinely approved the agreement. I am satisfied the explanation given of the terms of the agreement was appropriate and the agreement includes procedures for preventing and settling disputes between the employees and the employer in respect of employment subject to the agreement.

PN23

I am also satisfied the agreement specifies a nominal expiry date which is not more than three years after the date on which the agreement will come into operation. I am also satisfied there are no reasons set out in section 170LU of the Act why I should refuse to certify this agreement. Accordingly, the agreement will be certified with effect from today's date to operate in accordance with its terms and the formal certificate, together with these reasons for decision will issue in due course and a copy of the transcript will be placed on the file.

ADJOURNED INDEFINITELY [10.48am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #J1 WRITTEN ADVICE PROVIDED BY THE TROTTING ASSOCIATION DATED 23/01/03 AND COPY OF NOTICE OF INTENTION PN11