AG2003/3040, Transcript of Proceedings [2003] AIRCTrans 1701 (5 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/3040

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK
of the Act by Nonna Pia as trustee
for Grillini Family Trust Pty Ltd
for certification of the Nonna Pia Ristorante
Rustico Italiano Certified Agreement 2003

BRISBANE

11.00 AM, WEDNESDAY, 23 APRIL 2003

PN1

THE COMMISSIONER: Good morning, everyone. Take a seat. I'll just take some appearances.

PN2

MR K. LAW: Thank you, Commissioner. If the Commission pleases, my name is Law, initials K. J, Restaurant and Caterers Employers' Association Queensland, an industrial organisation of employers. Appearing with me is MISS AMANDA GRILLINI, director of Nonna Pia as Trustee for Grillini Family Trust Proprietary Limited, trading as Nonna Pia Ristorante Rustico Italiano Restaurant. Also present today is MISS CAROL MARTHA EMMANUEL, the employee representative.

PN3

THE COMMISSIONER: Thanks, Mr Law. Mr Law, if you'd like to take me through some of the salient elements of the agreement to ensure that the statutory tests have been met.

PN4

MR LAW: Yes, I'll do that if you wish, Commissioner. Commissioner, this is an application for agreement with employees under section 170LK, division 2, of the Workplace Relations Act 1996. In compiling this certified agreement, the Hospitality Industry, Restaurant, Catering and Allied Establishments' Award, south eastern division, was used as a safety net. This award is a paid rates award of the Queensland Industrial Relations Commission. Nonna Pia Ristorante Rustico Italiano employees - - -

PN5

THE COMMISSIONER: Sorry, Mr Law - if I can just interrupt you there. Which award is used for the no disadvantage test?

PN6

MR LAW: The Hospitality Industry, Restaurant, Catering and Allied Establishments' Award, south eastern division.

PN7

THE COMMISSIONER: What is in your statutory declaration regarding the award that is used?

PN8

MR LAW: It should state that award, Commissioner.

PN9

THE COMMISSIONER: Sorry to interrupt you. I may well be wrong.

PN10

MR LAW: That's okay.

PN11

THE COMMISSIONER: Yes. That's correct.

PN12

MR LAW: Nonna Pia employs full-time, part-time and casual employees as well as apprentices from time to time. This agreement was made directly with the employer and the employees of this commercial business located at 283 Given Terrace, Paddington, 4064, in the State of Queensland. This commercial business is a restaurant and provides quality food and beverage to the public. This agreement applies to the business as a whole as per section 170LB of the Workplace Relations Act 1996. Already filed with this Commission are the affidavits of Miss Amanda Grillini and Miss Carol Martha Emmanuel. Both are present to answer any questions from this Commission.

PN13

Turning to the no disadvantage test, I have also supplied to this Commission a comparison table of conditions in the award and the proposed agreement. Nonna Pia believes there is no disadvantage to any employee as a result of this agreement - - -

PN14

THE COMMISSIONER: Mr Law, thank you for providing the comparison table. It's very useful. Could I just take you to the heading of the comparison table? If you could just take me to the award that's used for the purposes of the comparison on that table.

PN15

MR LAW: Okay. That was a typo, Commissioner. I apologise for that.

PN16

THE COMMISSIONER: That's all right.

PN17

MR LAW: I put a number of these through. Probably the one before that was referring to a northern award. The Cafe Restaurant and Catering Award State - excluding south-east Queensland - is the State award affecting the northern part of the State. The Hospitality Industry, Restaurant, Catering and Allied Establishments' Award is the award for the south-eastern division of Queensland.

PN18

THE COMMISSIONER: That's all right - consistent with your statutory declaration.

PN19

MR LAW: That's correct, Commissioner. I do apologise for that. It was a typo and it's simply my error.

PN20

THE COMMISSIONER: No, I accept that as a typographical error and it doesn't go to your statutory declaration as a consequence, nor to the agreement. But the rates that are used are - - -

PN21

MR LAW: Yes, the rates are correct, Commissioner.

PN22

THE COMMISSIONER: - - - the - yes.

PN23

MR LAW: I can assure you of that.

PN24

THE COMMISSIONER: Good. Thank you.

PN25

MR LAW: Just for a point of difference for your information, the casual employment percentage in that cafe award is 50 per cent. In the southern award, it's 23 per cent.

PN26

THE COMMISSIONER: Okay. Thank you.

PN27

MR LAW: This agreement applies to the business as a whole as per section 170LB. I mentioned, in turning to the no disadvantage test, Nonna Pia believes there is no disadvantage to any employee as a result of this agreement, hence believing this proposed certified agreement meets the principle of the no disadvantage test, 170LT. Some other important elements of this agreement for the certification of the Nonna Pia Ristorante Rustico Italiano certified agreement 2003 are: (1) This agreement will be a two year agreement as per clause 6 and section 170LT.

PN28

This agreement contains a grievance and dispute settling procedure at clause 9. (3) This agreement contains an anti-discrimination and sexual harassment clause at clause 36. We say this agreement is not discriminatory in any way. (4) The director, Miss Amanda Grillini and Miss Carol Emmanuel, the employee representative, have signed this agreement. No employee chose to contact the relevant union of employees to assist them in this process. No employee is a member of a union of employees. (6) No employee was coerced in any way to implement the certified agreement. (7) No employee was unfairly omitted from this agreement. (8) Prior to the making of the agreement, the employees were notified of the employer's intention to develop a certified agreement for the Nonna Pia Ristorante Rustico Italiano.

PN29

I would like to hand up a copy of that notice to the Bench. On 7 February, the agreement was explained in full. Each employee was provided with a copy of the proposed certified agreement for their consideration for a full 14 day period. Staff were advised at this meeting on 7 February that they could consult with a union, friend, family member, solicitor or similar professional, etcetera, should they so choose. (11) Also on 7 February, the staff representative, Miss Carol Martha Emmanuel was appointed by the staff with no involvement of the employer. (12) Any inquiries from the proposed agreement were directed to the staff representative. (13) No questions were received from the staff. (14) The agreement was approved by a valid majority of employees on 14 March 2003.

PN30

All staff members voted in favour of the proposed agreement. I would like to hand up the results of the vote on 14 March, for the Commission's information. The final agreement is now before this Commission seeking certification. This proposed certified agreement is not inconsistent with any provision of the Workplace Relations Act 1996. It is the employer's and the employees' belief that this Commission has no reason not to certify this agreement. It is the opinion of the employer that this proposed agreement will give Nonna Pia Ristorante Rustico Italiano more flexibility in its operations, budgeting, preservation of skill, lowering staff turnover, creating greater staff loyalty and career opportunities.

PN31

It is the employer's and the employees' belief that this agreement conforms to the requirements of the Workplace Relations Act 1996 and is commended to the Australian Industrial Relations Commission for certification, if the Commission pleases.

PN32

THE COMMISSIONER: Thanks, Mr Law. Perhaps if I could just ask for a few comments from Miss Emmanuel. Miss Emmanuel, could you tell me: over the course of the making of the agreement, were you and the other three persons involved suitably informed, to your satisfaction, of - - -

PN33

MISS EMMANUEL: Yes.

PN34

THE COMMISSIONER: - - - all the details of the agreement?

PN35

MISS EMMANUEL: Yes, Commissioner.

PN36

THE COMMISSIONER: Were there any queries at all about the operation of the agreement that were outstanding at all?

PN37

MISS EMMANUEL: No, none at all.

PN38

THE COMMISSIONER: Miss Emmanuel, when you were notified of the intention to make the agreement, was it made clear to you that you were able to utilise union representation or representation by anyone else for the purpose of making this agreement?

PN39

MISS EMMANUEL: Yes.

PN40

THE COMMISSIONER: And that it was open to you to contact a union and have that union represent you?

PN41

MISS EMMANUEL: Yes.

PN42

THE COMMISSIONER: And all the other three, including yourself - the four persons covered by the agreement who voted in the ballot as well, they were aware of this entitlement?

PN43

MISS EMMANUEL: Yes, they were.

PN44

THE COMMISSIONER: And presumably, it was not an entitlement that was taken up by anyone?

PN45

MISS EMMANUEL: No.

PN46

THE COMMISSIONER: Did you have any other concerns at all over the course of the making of this agreement that caused you - any queries that remained outstanding or - - -

PN47

MISS EMMANUEL: No.

PN48

THE COMMISSIONER: - - - of any sort whatsoever?

PN49

MISS EMMANUEL: No, none at all.

PN50

THE COMMISSIONER: Good. Thanks, Miss Emmanuel.

PN51

MISS EMMANUEL: Thank you.

PN52

THE COMMISSIONER: Mr Law, would you like to add anything on the LK(4) issue?

PN53

MISS EMMANUEL: In relation to that, Commissioner - you raised that last week. When this agreement was put into place, the issue of notification as to the information being provided in the notice - this meeting was held prior to that and obviously the same situation. I have probably one or two others that are in that process as well - have gone by that process and the mechanism. But what I'm doing now, Commissioner, is that any notification that will be going to staff will include the contents of section 174LB(4) for future notices.

PN54

THE COMMISSIONER: Yes. Miss Emmanuel has made it clear to me that it was known by the four persons to be covered by the agreement at the time of the making of the agreement that it was their entitlement to ask for representation, and I place considerable weight on that on this occasion. Are there any other matters you wish to bring to my attention regarding the agreement?

PN55

MR LAW: No further matters, Commissioner.

PN56

THE COMMISSIONER: I might ask you one question, Mr Law. It's just about the derivation of the classifications that you use in the agreement itself. Are they directly borrowed from the relevant award?

PN57

MR LAW: They are, Commissioner.

PN58

THE COMMISSIONER: They are directly? They're not - - -

PN59

MR LAW: They are directly out of the - - -

PN60

THE COMMISSIONER: They're not - - -

PN61

MR LAW: They are directly out of the award.

PN62

THE COMMISSIONER: Okay. That's all right then. I was just wondering whether they had been manipulated or broadbanded in any way at all.

PN63

MR LAW: No. If they were changed in such a way, Commissioner, I would have spelt it out in my - - -

PN64

THE COMMISSIONER: That's - - -

PN65

MR LAW: - - - attachment in - - -

PN66

THE COMMISSIONER: That's all right. No.

PN67

MR LAW: - - - relation to the - - -

PN68

THE COMMISSIONER: That settles the only query that I had on the matter then. Look, as a consequence of the submissions that have been put to me today, and particularly the credibility that I have given to Miss Emmanuel's submissions as well as the employee representative, it is my view that the statutory requirements have been met for the purposes of the certification of the agreement. I will, as of today's date, certify the agreement to operate for the period which is specified and that has eluded me at this time, but that date was, Mr Law?

PN69

MR LAW: The 22nd - today.

PN70

THE COMMISSIONER: No, no. Sorry - the operational life is - - -

PN71

MR LAW: It will be three years from today, Commissioner.

PN72

THE COMMISSIONER: Yes. Okay. So - to operate from three years therefore from today's - - -

PN73

MR LAW: I'm sorry - two years from today, Commissioner.

PN74

THE COMMISSIONER: From two years from today's date. Sorry. That was our last agreement, I think - the three years - - -

PN75

MR LAW: The last one was three years, Commissioner.

PN76

THE COMMISSIONER: That's all right. Don't worry. We're both entitled to be confused.

PN77

MR LAW: Well, I'm getting more confused than you are, I think.

PN78

THE COMMISSIONER: I'll take that one then. On that basis then, I will issue an order and a decision reflecting that decision later today or tomorrow and that will be transmitted to the parties through the usual way, hopefully either by facsimile or e-mail. On that basis then, I adjourn these proceedings.

ADJOURNED INDEFINITELY [11.12am]